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IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT,
IN AND FOR CHARLOTTE COUNTY, FLORIDA
VENISSA DRIGGERS, as Personal Representative CASE NO.: 21-000410-CA
of the Estate of DAVID B. FLICK, Deceased,
MARK BARCIA, HOOTERS OF PORT CHARLOTTE,
INC., BWR NORTH PORT, LLC d/b/a BUFFALO
WINGS AND RINGS, ATLANTA RESTAURANT
PARTNERS, LLC d/b/a TGI FRIDAYS, AND
JACKMONT HOSPITALITY, INC. d/b/a TGI
FRIDAYS,
DEFENDANT, HOOTERS OF PORT CHARLOTTE, INC.’S MOTION FOR
RELIEF FROM, AND TO VACATE, FINAL JUDGMENT
Defendant, HOOTERS OF PORT CHARLOTTE, INC. (“HPC”), by and through its
undersigned counsel, pursuant to Rules 1.540(b)(1), Florida Rules of Civil Procedure, hereby moves
for relief from, and to vacate, the Final Judgment entered against HPC in this cause, predicated upon
the excusable neglect of the undersigned counsel for HPC.
I. FACTS
1. On January 13, 2023, a Non-binding Arbitration was held in this matter.
2. On February 3, 2023, the Arbitrator filed his Notice of Service of Arbitrator’s Sealed
Non-Binding Arbitration Findings and Award (the “Arbitration Award”), making February 27, 2023
the technical deadline for the filing of a Motion for Trial De Novo to essentially reject the
Arbitration Award. See, Fla.R.Civ.P. 1.820(h); and Fla.R.Civ.P. 1.090(a);
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
Fla.R.Gen.Prac.&Jud.Admin. 2.514(a)(1).
3. On February 27, 2023, the undersigned, on behalf of HPC, prepared, completed,
signed, dated, and finalized HPC’s Motion for Trial De Novo rejecting the Arbitration Award (the
“Motion” or “Motion for Trial De Novo”). On February 27, 2023, the undersigned, on behalf of
HPC, was authorized and fully intended to formally file and serve the Motion for Trial De Novo on
February 27, 2023, and in fact uploaded the Motion into the Florida Courts E-filing Portal (the
“Portal”) during the early afternoon of February 27, 2023. The Motion for Trial De Novo was
literally sitting in the Portal’s queue. However, the undersigned accidentally and inadvertently failed
to complete the submission/filing process in the Portal due to the undersigned having become
distracted and preoccupied with other litigation matters and work-related preparations for a
longstanding, pre-paid, week-long, out-of-state, family vacation scheduled to commence early on
the morning of March 4, 2023.
4. Notwithstanding the planned vacation, the undersigned had numerous important
litigation events scheduled between February 28, 2023 and the end of the vacation (including, but
(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a
longer unit of time:
(A) begin counting from the next day that is not a Saturday, Sunday, or legal
holiday;
(B) count every day, including intermediate Saturdays, Sundays, and legal
holidays; and
(C) include the last day of the period, but if the last day is a Saturday, Sunday, or
legal holiday, . . . the period continues to run until the end of the next day that is
not a Saturday, Sunday, or legal holiday . . . .
The undersigned was scheduled to begin driving his wife and small children from South
Florida to West Virginia on the morning of March 4, 2023, only to return to South Florida on or
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
not limited to, (i) an important Mediation in a lawsuit where the damages are alleged to be tens of
millions of dollars, (ii) no fewer than four (4) depositions, (iii) a Calendar Call, and (iv) a Case
Management Conference), the preparation for which distracted and preoccupied the undersigned
from completing the filing prior to the end of February 27, 2023.
5. At about 3:00 A.M. on February 28, 2023, the undersigned abruptly awoke to the
realization that the filing of the Motion for Trial De Novo had not been completed and, after
changing the date on the Motion to reflect that it was three (3) hours past midnight, completed the
filing of the Motion at 3:14 A.M. on February 28, 2023. A copy of the Motion for Trial De Novo
is attached hereto as Exhibit “A”. The “E-Filed” stamp states “02/28/2023 03:14:02 AM
(Emphasis added). The undersigned accidentally missed the deadline by only three (3) hours. (The
above-referenced facts are set forth in the undersigned’s Affidavit attached hereto as Exhibit “B”
II. LAW
6. Rule 1.540 states in pertinent part,
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud;
etc. On motion and upon such terms as are just, the court may relieve a party or a
party's legal representative from a final judgment, decree, order, or proceeding for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; . . .
Fla.R.Civ.P. 1.540(b)(1) (emphasis added).
7. According to Trawick’s Florida Practice and Procedure,
Excusable neglect has no precise definition. It depends on the circumstances.
Factors to be considered are the diligence of the moving party, the nature of the
proceeding sought to be vacated, the elapsed time periods in the proceeding and the
excuse given for failing to properly act in the first instance. When applied to errors
of an attorney, excusable neglect means those errors and omissions that are excusable
when considered in the light of generally accepted practices with which the attorney
is familiar and on which he has a right to rely.
Trawick, Fla. Prac. & Proc. § 27:3 (2022-2023 ed.).
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
8. To determine whether there was excusable neglect, the Court should consider the
following factors: whether there was an adjudication of the issues on the merits; the length of the
delay; whether the judgment is for a considerable sum; whether “defense counsel was absorbed in
final preparations for two impending jury trials”; and whether defense counsel acted promptly to
rectify the situation. See, Florida Inv. Enterprises, Inc. v. Kentucky Co., 160 So. 2d 733, 737 (Fla.
1st DCA 1964); Trawick, Fla. Prac. & Proc. § 27:3 (2022-2023 ed.).
9. In the case at bar, while some of Hooters’ positions were considered by an Arbitrator
(who is not bound by the Rules of Evidence) in an informal setting, there has not been an
adjudication of the issues on the merits; the length of the delay was only three (3) hours; the sum of
the Arbitrator’s award is considerable (this is a wrongful death case); and the undersigned
unquestionably acted promptly in the preparation and filing of HPC’s Motion for Trial De Novo and
10. In City of Ocala v. Heath, 518 So. 2d 325 (Fla. 5th DCA 1987), the illness of the
attorney and adverse effects of his medication causing a default, were determined to be excusable
neglect and grounds for vacating or setting aside a judgment, decree, or order pursuant to Florida
11. Likewise, the court in Ledwith v. Storkan, 2 F.R.D. 539 (D. Neb. 1942) – another case
cited by Trawick, Fla. Prac. & Proc. § 27:3 (2022-2023 ed.) regarding excusable neglect – observed
that “continuous preoccupation with an important trial” may suffice for excusable neglect. at
12. In the case at bar, there was every intention to complete the filing of the Motion for
Trial De Novo on February 27, 2023. Indeed, the Motion was signed and uploaded. However, the
undersigned’s current, temporary circumstances caused him to become momentarily (albeit
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
significantly) preoccupied with preparations and other significant litigation obligations, which
resulted in a three (3)-hour delay in the filing of the Motion for Trial De Novo.
13. While the accidental three (3)-hour delay in filing the Motion for Trial De Novo did
not prejudice any of the other parties, the denial of this Motion for Relief and Motion for Trial De
14. "A party against whom judgment has been entered pursuant to the rule requiring entry
of judgment when the party fails to move for a trial de novo within twenty days of service of the
arbitrator's decision is entitled to file a motion to vacate judgment" under rule 1.540(b), Florida
Rules of Civil Procedure, predicated upon excusable neglect. Halpern v. Houser, 949 So.2d 1155,
1157-58 (Fla. 4th DCA 2007). “Therefore, in accordance with our decisions in Steinhardt and
Zagorski, we conclude that this matter must be remanded to allow the Housers' counsel the
opportunity to file a sworn Rule 1.540(b) motion and for the trial court to conduct an evidentiary
hearing on the issue of excusable neglect."
15. The 2nd DCA, in Kalman v. Pasco-Hernando Surgical Associates, P.L., 974 So.2d
1219 (Fla. 2nd DCA 2008), agreed with and relied upon . It held that the trial court had
jurisdiction to grant relief pursuant to Rule 1.540, from a judgement entered against the defendant
after the defendant failed to file a motion for trial in accordance with Florida Rule of Civil Procedure
1.820(h) within twenty days of the service of an arbitrator's decision in a nonbinding arbitration.
and Halpern are controlling and binding, certainly at least if and when the Court enters a
judgment.
III. MERITORIOUS DEFENSES
A. Liability of the Uber Driver
HPC has meritorious defenses. For example, Nicole Cimmino (“Cimmino”), who was a
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
passenger in the vehicle driven by Pierre Louis (i.e., the Uber driver), the same vehicle carrying the
13· · · Q.· Okay.· You mentioned that you were livid at the
14· ·Uber driver after the accident, can you explain to me
15· ·what was going through your mind or what made you feel
16· ·that way?
17· · · A.· I think he pulled into that lane too soon. I
18· ·think if Mark Barcia -- he couldn't do anything, he was
19· ·driving fast.· The Uber driver seen that he was in the
20· ·lane and had enough time to get into that lane and clear
21· ·it.· I believe the Uber driver was negligent as well.
(Cimmino Dep. Tr. 30 [emphasis added]).
In other words, Barcia was not entirely at fault for the accident. There is strong evidence that
a non-party was at fault and liability should be apportioned to the driver of the other vehicle,
predicated upon Cimmino’s eyewitness account.
B. HPC Did Not Knowingly Serve a Habitual Drunkard
HPC was not negligent and did not knowingly serve someone habitually addicted to the use
of alcohol. Michael Lauff (“Lauff”) testified,
21· · · Q.· · When you had -- not talking -- before
22· December 2019, okay, when you'd go to these sort of
23· half-day holiday lunches, okay, how was Mark behaved at
25· · · A.· · He would be pretty decent, talk about work,
·1· have a beer or two, a couple chicken wings, some french
·2· fries, pretzel bites.· I would never stay more than,
·3· you know, enough to eat my food, get my food and eat,
·5· · · Q.· · Okay.· On the occasions you were there with
·6· Mark before December 31st, 2019, had you ever seen him
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
(Lauf Dep. Tr. 20-21 [emphasis added]).
Tom Hughes (“Hughes”), an employee of HPC on the date of the incident testified,
11· · · · · ·Q.· ·Do you know Mark Barcia?
12· · · · · ·A.· ·In what relation, sir?
13· · · · · ·Q.· ·Did you know him as a regular customer
15· · · · · ·A.· ·Yes.· I've seen him come in a few
16· ·times, yes, sir.
17· · · · · ·Q.· ·Okay.· What did he look like?
19· · · · · ·Q.· ·And what do you remember about him?
20· · · · · ·A.· ·Nothing particular.
21· · · · · ·Q.· ·Did you ever talk to him?
22· · · · · ·A.· ·Just as a regular guest, yeah, only
23· ·when it comes to restaurant stuff or if I needed my
24· ·car fixed because I knew that he worked at a local
(Hughes Dep. Tr. at 16).
·3· · · · · ·Q.· ·Had you ever had to reprimand him in
·4· ·any way while he was at Hooters before December 31,
·6· · · · · ·A.· ·Not that I can recall, sir.
·7· · · · · ·Q.· ·Had you or your staff ever had to cut
10· · · · · ·A.· ·Not that I can recall, sir.
(Hughes Dep. Tr. at 18).
Samantha Monnier (“Monnier”), also an employee on the date of the incident, testified,
16· · · Q.· Did you personally serve Mark Barcia on December
18· · · A.· No, not that I recall.
19· · · Q.· Do you recall him coming into Hooter's on
21· · · A.· I mean, very vaguely.· Not -- I couldn't tell you
22· ·if we had a conversation or anything.· Maybe if he came
23· ·in I would have said hi, and that's about it.· If I
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
24· ·wasn't serving him, I really wouldn't have spoken to him
13· · · Q.· How often would he come in, to the best of your
15· · · A.· Not often.· Maybe, like, once or twice a month I
16· ·feel like I'd see him.
17· · · Q.· What do you recall about him?
18· · · A.· He was just a big, nice guy.· That's all I really
19· ·-- he was always respectful.· I mean, never had a
21· ·always a good guy.· Never had any problems.
(Monnier Dep. Tr. at 16 [emphasis added]).
11· · · Q.· Okay.· And there's been some testimony in this
12· ·case that Mark Barcia was a loud and vulgar person, was
13· ·that your experience with him?
14· · · · · · · ·MS. GERLICH:· Object to form.
15· · · A.· No, not at all.· I don't think I ever recall him
16· ·being loud or obnoxious or anything.· I mean, we deal
17· ·with some nasty people.· I wouldn't consider him one of
(Monnier Dep. Tr. at 17 [emphasis added]).
Likewise Veronica Santiago (“Santiago”), another HPC employee on the date of the incident,
24· · · Q.· Okay.· Did you know Mark Barcia as a regular
25· ·customer at Hooter's?
·1· · · A.· I've seen him from time to time, but not like as
·2· ·a regular, I would say, but I've seen him from time to
·4· · · Q.· Okay.· Forgive my language, but there's been some
·5· ·testimony in this case that Mark Barcia was allowed and
·6· ·often time a vulgar person, was that consistent with
·7· ·your experience with him when he would come into
·8· ·Hooter's?
·9· · · A.· I thought he was pretty chill, never got too loud
10· ·honestly, not that I recall and I worked pretty often.
11· · · Q.· What do you recall about the times that Mr.
12· ·Barcia came into Hooter's before December 31st, 2019?
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
13· · · A.· I'm going to be honest, they were not really
14· ·memorable.· I remembered him in there.· I never paid
15· ·attention.· It wasn't loud or obnoxious to me any ways.
(Santiago Dep. Tr. At 19-20 [emphasis added]).
15· · · Q.· But he appeared sober to you when he got there?
16· · · A.· Like he just woke up.· He seemed completely
(Santiago Dep. Tr. At 49 [emphasis added]).
In other words, there is strong evidence that HPC did not violate Florida’s dram shop statute.
The above-referenced deposition testimony and case law are attached hereto and filed in support of
WHEREFORE, for the aforementioned reasons, Defendant, HOOTERS OF PORT
CHARLOTTE, INC., respectfully requests that this Court enter an Order granting this Motion;
granting HOOTERS OF PORT CHARLOTTE, INC. relief from the Final Judgment entered against
it in this cause; vacating the Final Judgment entered against HOOTERS OF PORT CHARLOTTE,
INC. in this cause, predicated upon the excusable neglect of the undersigned counsel, and for such
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
Filing # 167660405 E-Filed 02/28/2023 03:14:02 AM
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT,
IN AND FOR CHARLOTTE COUNTY, FLORIDA
VENISSA DRIGGERS, as Personal Representative CASE NO.: 21-000410-CA
of the Estate of DAVID B. FLICK, Deceased,
MARK BARCIA, HOOTERS OF PORT CHARLOTTE,
INC., BWR NORTH PORT, LLC d/b/a BUFFALO
WINGS AND RINGS, ATLANTA RESTAURANT
PARTNERS, LLC d/b/a TGI FRIDAYS, AND
JACKMONT HOSPITALITY, INC. d/b/a TGI
FRIDAYS,
DEFENDANT, HOOTERS OF PORT CHARLOTTE, INC.'S
MOTION FOR TRIAL DE NOVO
Defendant, Hooters Of Port Charlotte, Inc. (“Hooters”), by and through undersigned counsel,
and pursuant to section §44.103(5), Florida Statutes, and Rule 1.820(h), Florida Rules of Civil
Procedure, shows that this action was arbitrated in non-binding arbitration and hereby moves for a
by the Court.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this 28th day of February, 2023, a true and correct copy
of the foregoing was filed with the Clerk by using the Florida Courts e-Filing Portal, which will send
an automatic e-mail message to the following parties registered with the e-Filing Portal System on
the attached Service List.
Counsel for Defendant, Hooters of Port Charlotte,
5850 Coral Ridge Drive, Suite 201
HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210
offer is
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IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT, IN AND FOR CHARLOTTE COUNTY, FLORIDA VENISSA DRIGGERS, as Personal Representative CASE NO.: 21-000410-CA of the Estate of DAVID B. FLICK, Deceased, MARK BARCIA, HOOTERS OF PORT CHARLOTTE, INC., BWR NORTH PORT, LLC d/b/a BUFFALO WINGS AND RINGS, ATLANTA RESTAURANT PARTNERS, LLC d/b/a TGI FRIDAYS, AND JACKMONT HOSPITALITY, INC. d/b/a TGI FRIDAYS, DEFENDANT, HOOTERS OF PORT CHARLOTTE, INC.’S MOTION FOR RELIEF FROM, AND TO VACATE, FINAL JUDGMENT Defendant, HOOTERS OF PORT CHARLOTTE, INC. (“HPC”), by and through its undersigned counsel, pursuant to Rules 1.540(b)(1), Florida Rules of Civil Procedure, hereby moves for relief from, and to vacate, the Final Judgment entered against HPC in this cause, predicated upon the excusable neglect of the undersigned counsel for HPC. I. FACTS 1. On January 13, 2023, a Non-binding Arbitration was held in this matter. 2. On February 3, 2023, the Arbitrator filed his Notice of Service of Arbitrator’s Sealed Non-Binding Arbitration Findings and Award (the “Arbitration Award”), making February 27, 2023 the technical deadline for the filing of a Motion for Trial De Novo to essentially reject the Arbitration Award. See, Fla.R.Civ.P. 1.820(h); and Fla.R.Civ.P. 1.090(a); HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 Fla.R.Gen.Prac.&Jud.Admin. 2.514(a)(1). 3. On February 27, 2023, the undersigned, on behalf of HPC, prepared, completed, signed, dated, and finalized HPC’s Motion for Trial De Novo rejecting the Arbitration Award (the “Motion” or “Motion for Trial De Novo”). On February 27, 2023, the undersigned, on behalf of HPC, was authorized and fully intended to formally file and serve the Motion for Trial De Novo on February 27, 2023, and in fact uploaded the Motion into the Florida Courts E-filing Portal (the “Portal”) during the early afternoon of February 27, 2023. The Motion for Trial De Novo was literally sitting in the Portal’s queue. However, the undersigned accidentally and inadvertently failed to complete the submission/filing process in the Portal due to the undersigned having become distracted and preoccupied with other litigation matters and work-related preparations for a longstanding, pre-paid, week-long, out-of-state, family vacation scheduled to commence early on the morning of March 4, 2023. 4. Notwithstanding the planned vacation, the undersigned had numerous important litigation events scheduled between February 28, 2023 and the end of the vacation (including, but (1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time: (A) begin counting from the next day that is not a Saturday, Sunday, or legal holiday; (B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and (C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, . . . the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday . . . . The undersigned was scheduled to begin driving his wife and small children from South Florida to West Virginia on the morning of March 4, 2023, only to return to South Florida on or HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 not limited to, (i) an important Mediation in a lawsuit where the damages are alleged to be tens of millions of dollars, (ii) no fewer than four (4) depositions, (iii) a Calendar Call, and (iv) a Case Management Conference), the preparation for which distracted and preoccupied the undersigned from completing the filing prior to the end of February 27, 2023. 5. At about 3:00 A.M. on February 28, 2023, the undersigned abruptly awoke to the realization that the filing of the Motion for Trial De Novo had not been completed and, after changing the date on the Motion to reflect that it was three (3) hours past midnight, completed the filing of the Motion at 3:14 A.M. on February 28, 2023. A copy of the Motion for Trial De Novo is attached hereto as Exhibit “A”. The “E-Filed” stamp states “02/28/2023 03:14:02 AM (Emphasis added). The undersigned accidentally missed the deadline by only three (3) hours. (The above-referenced facts are set forth in the undersigned’s Affidavit attached hereto as Exhibit “B” II. LAW 6. Rule 1.540 states in pertinent part, (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . Fla.R.Civ.P. 1.540(b)(1) (emphasis added). 7. According to Trawick’s Florida Practice and Procedure, Excusable neglect has no precise definition. It depends on the circumstances. Factors to be considered are the diligence of the moving party, the nature of the proceeding sought to be vacated, the elapsed time periods in the proceeding and the excuse given for failing to properly act in the first instance. When applied to errors of an attorney, excusable neglect means those errors and omissions that are excusable when considered in the light of generally accepted practices with which the attorney is familiar and on which he has a right to rely. Trawick, Fla. Prac. & Proc. § 27:3 (2022-2023 ed.). HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 8. To determine whether there was excusable neglect, the Court should consider the following factors: whether there was an adjudication of the issues on the merits; the length of the delay; whether the judgment is for a considerable sum; whether “defense counsel was absorbed in final preparations for two impending jury trials”; and whether defense counsel acted promptly to rectify the situation. See, Florida Inv. Enterprises, Inc. v. Kentucky Co., 160 So. 2d 733, 737 (Fla. 1st DCA 1964); Trawick, Fla. Prac. & Proc. § 27:3 (2022-2023 ed.). 9. In the case at bar, while some of Hooters’ positions were considered by an Arbitrator (who is not bound by the Rules of Evidence) in an informal setting, there has not been an adjudication of the issues on the merits; the length of the delay was only three (3) hours; the sum of the Arbitrator’s award is considerable (this is a wrongful death case); and the undersigned unquestionably acted promptly in the preparation and filing of HPC’s Motion for Trial De Novo and 10. In City of Ocala v. Heath, 518 So. 2d 325 (Fla. 5th DCA 1987), the illness of the attorney and adverse effects of his medication causing a default, were determined to be excusable neglect and grounds for vacating or setting aside a judgment, decree, or order pursuant to Florida 11. Likewise, the court in Ledwith v. Storkan, 2 F.R.D. 539 (D. Neb. 1942) – another case cited by Trawick, Fla. Prac. & Proc. § 27:3 (2022-2023 ed.) regarding excusable neglect – observed that “continuous preoccupation with an important trial” may suffice for excusable neglect. at 12. In the case at bar, there was every intention to complete the filing of the Motion for Trial De Novo on February 27, 2023. Indeed, the Motion was signed and uploaded. However, the undersigned’s current, temporary circumstances caused him to become momentarily (albeit HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 significantly) preoccupied with preparations and other significant litigation obligations, which resulted in a three (3)-hour delay in the filing of the Motion for Trial De Novo. 13. While the accidental three (3)-hour delay in filing the Motion for Trial De Novo did not prejudice any of the other parties, the denial of this Motion for Relief and Motion for Trial De 14. "A party against whom judgment has been entered pursuant to the rule requiring entry of judgment when the party fails to move for a trial de novo within twenty days of service of the arbitrator's decision is entitled to file a motion to vacate judgment" under rule 1.540(b), Florida Rules of Civil Procedure, predicated upon excusable neglect. Halpern v. Houser, 949 So.2d 1155, 1157-58 (Fla. 4th DCA 2007). “Therefore, in accordance with our decisions in Steinhardt and Zagorski, we conclude that this matter must be remanded to allow the Housers' counsel the opportunity to file a sworn Rule 1.540(b) motion and for the trial court to conduct an evidentiary hearing on the issue of excusable neglect." 15. The 2nd DCA, in Kalman v. Pasco-Hernando Surgical Associates, P.L., 974 So.2d 1219 (Fla. 2nd DCA 2008), agreed with and relied upon . It held that the trial court had jurisdiction to grant relief pursuant to Rule 1.540, from a judgement entered against the defendant after the defendant failed to file a motion for trial in accordance with Florida Rule of Civil Procedure 1.820(h) within twenty days of the service of an arbitrator's decision in a nonbinding arbitration. and Halpern are controlling and binding, certainly at least if and when the Court enters a judgment. III. MERITORIOUS DEFENSES A. Liability of the Uber Driver HPC has meritorious defenses. For example, Nicole Cimmino (“Cimmino”), who was a HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 passenger in the vehicle driven by Pierre Louis (i.e., the Uber driver), the same vehicle carrying the 13· · · Q.· Okay.· You mentioned that you were livid at the 14· ·Uber driver after the accident, can you explain to me 15· ·what was going through your mind or what made you feel 16· ·that way? 17· · · A.· I think he pulled into that lane too soon. I 18· ·think if Mark Barcia -- he couldn't do anything, he was 19· ·driving fast.· The Uber driver seen that he was in the 20· ·lane and had enough time to get into that lane and clear 21· ·it.· I believe the Uber driver was negligent as well. (Cimmino Dep. Tr. 30 [emphasis added]). In other words, Barcia was not entirely at fault for the accident. There is strong evidence that a non-party was at fault and liability should be apportioned to the driver of the other vehicle, predicated upon Cimmino’s eyewitness account. B. HPC Did Not Knowingly Serve a Habitual Drunkard HPC was not negligent and did not knowingly serve someone habitually addicted to the use of alcohol. Michael Lauff (“Lauff”) testified, 21· · · Q.· · When you had -- not talking -- before 22· December 2019, okay, when you'd go to these sort of 23· half-day holiday lunches, okay, how was Mark behaved at 25· · · A.· · He would be pretty decent, talk about work, ·1· have a beer or two, a couple chicken wings, some french ·2· fries, pretzel bites.· I would never stay more than, ·3· you know, enough to eat my food, get my food and eat, ·5· · · Q.· · Okay.· On the occasions you were there with ·6· Mark before December 31st, 2019, had you ever seen him HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 (Lauf Dep. Tr. 20-21 [emphasis added]). Tom Hughes (“Hughes”), an employee of HPC on the date of the incident testified, 11· · · · · ·Q.· ·Do you know Mark Barcia? 12· · · · · ·A.· ·In what relation, sir? 13· · · · · ·Q.· ·Did you know him as a regular customer 15· · · · · ·A.· ·Yes.· I've seen him come in a few 16· ·times, yes, sir. 17· · · · · ·Q.· ·Okay.· What did he look like? 19· · · · · ·Q.· ·And what do you remember about him? 20· · · · · ·A.· ·Nothing particular. 21· · · · · ·Q.· ·Did you ever talk to him? 22· · · · · ·A.· ·Just as a regular guest, yeah, only 23· ·when it comes to restaurant stuff or if I needed my 24· ·car fixed because I knew that he worked at a local (Hughes Dep. Tr. at 16). ·3· · · · · ·Q.· ·Had you ever had to reprimand him in ·4· ·any way while he was at Hooters before December 31, ·6· · · · · ·A.· ·Not that I can recall, sir. ·7· · · · · ·Q.· ·Had you or your staff ever had to cut 10· · · · · ·A.· ·Not that I can recall, sir. (Hughes Dep. Tr. at 18). Samantha Monnier (“Monnier”), also an employee on the date of the incident, testified, 16· · · Q.· Did you personally serve Mark Barcia on December 18· · · A.· No, not that I recall. 19· · · Q.· Do you recall him coming into Hooter's on 21· · · A.· I mean, very vaguely.· Not -- I couldn't tell you 22· ·if we had a conversation or anything.· Maybe if he came 23· ·in I would have said hi, and that's about it.· If I HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 24· ·wasn't serving him, I really wouldn't have spoken to him 13· · · Q.· How often would he come in, to the best of your 15· · · A.· Not often.· Maybe, like, once or twice a month I 16· ·feel like I'd see him. 17· · · Q.· What do you recall about him? 18· · · A.· He was just a big, nice guy.· That's all I really 19· ·-- he was always respectful.· I mean, never had a 21· ·always a good guy.· Never had any problems. (Monnier Dep. Tr. at 16 [emphasis added]). 11· · · Q.· Okay.· And there's been some testimony in this 12· ·case that Mark Barcia was a loud and vulgar person, was 13· ·that your experience with him? 14· · · · · · · ·MS. GERLICH:· Object to form. 15· · · A.· No, not at all.· I don't think I ever recall him 16· ·being loud or obnoxious or anything.· I mean, we deal 17· ·with some nasty people.· I wouldn't consider him one of (Monnier Dep. Tr. at 17 [emphasis added]). Likewise Veronica Santiago (“Santiago”), another HPC employee on the date of the incident, 24· · · Q.· Okay.· Did you know Mark Barcia as a regular 25· ·customer at Hooter's? ·1· · · A.· I've seen him from time to time, but not like as ·2· ·a regular, I would say, but I've seen him from time to ·4· · · Q.· Okay.· Forgive my language, but there's been some ·5· ·testimony in this case that Mark Barcia was allowed and ·6· ·often time a vulgar person, was that consistent with ·7· ·your experience with him when he would come into ·8· ·Hooter's? ·9· · · A.· I thought he was pretty chill, never got too loud 10· ·honestly, not that I recall and I worked pretty often. 11· · · Q.· What do you recall about the times that Mr. 12· ·Barcia came into Hooter's before December 31st, 2019? HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 13· · · A.· I'm going to be honest, they were not really 14· ·memorable.· I remembered him in there.· I never paid 15· ·attention.· It wasn't loud or obnoxious to me any ways. (Santiago Dep. Tr. At 19-20 [emphasis added]). 15· · · Q.· But he appeared sober to you when he got there? 16· · · A.· Like he just woke up.· He seemed completely (Santiago Dep. Tr. At 49 [emphasis added]). In other words, there is strong evidence that HPC did not violate Florida’s dram shop statute. The above-referenced deposition testimony and case law are attached hereto and filed in support of WHEREFORE, for the aforementioned reasons, Defendant, HOOTERS OF PORT CHARLOTTE, INC., respectfully requests that this Court enter an Order granting this Motion; granting HOOTERS OF PORT CHARLOTTE, INC. relief from the Final Judgment entered against it in this cause; vacating the Final Judgment entered against HOOTERS OF PORT CHARLOTTE, INC. in this cause, predicated upon the excusable neglect of the undersigned counsel, and for such HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 Filing # 167660405 E-Filed 02/28/2023 03:14:02 AM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT, IN AND FOR CHARLOTTE COUNTY, FLORIDA VENISSA DRIGGERS, as Personal Representative CASE NO.: 21-000410-CA of the Estate of DAVID B. FLICK, Deceased, MARK BARCIA, HOOTERS OF PORT CHARLOTTE, INC., BWR NORTH PORT, LLC d/b/a BUFFALO WINGS AND RINGS, ATLANTA RESTAURANT PARTNERS, LLC d/b/a TGI FRIDAYS, AND JACKMONT HOSPITALITY, INC. d/b/a TGI FRIDAYS, DEFENDANT, HOOTERS OF PORT CHARLOTTE, INC.'S MOTION FOR TRIAL DE NOVO Defendant, Hooters Of Port Charlotte, Inc. (“Hooters”), by and through undersigned counsel, and pursuant to section §44.103(5), Florida Statutes, and Rule 1.820(h), Florida Rules of Civil Procedure, shows that this action was arbitrated in non-binding arbitration and hereby moves for a by the Court. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this 28th day of February, 2023, a true and correct copy of the foregoing was filed with the Clerk by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal System on the attached Service List. Counsel for Defendant, Hooters of Port Charlotte, 5850 Coral Ridge Drive, Suite 201 HERON BAY CORPORATE CENTER • 5850 CORAL RIDGE DRIVE, SUITE 201 • CORAL SPRINGS, FLORIDA 33076 • 954-340-2200 • FAX 954-340-2210 offer is At 14 due at due at et al ■_ _ / # 165627669 and at