JANICE ROBINSON, APPELLANT,
v.
SIMON SHACKELFORD, ETC., ET AL., APPELLEE
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Robinson appealed the trial court's dismissal of her battery complaint for insufficiency of service of process. The appellate court affirmed the dismissal, holding that without transcripts of the lower court proceedings, it could not determine that the trial court abused its discretion in dismissing the action.
The appellate court affirmed the dismissal order because, absent transcripts of the hearings below, it could not determine that the trial court committed any error. The court applied the presumption that the trial court's decision is correct and placed the burden on Robinson to demonstrate error.
[1] An order dismissing a cause of action for failure to timely serve the complaint is reviewed for an abuse of discretion.
[2] If a plaintiff shows good cause or excusable neglect for failure to timely serve process, the court must extend the time for service.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If a plaintiff shows good cause or excusable neglect, the court must extend the time for service of process and has no discretion to do otherwise; however, if neither good cause nor excusable neglect is shown, the trial court is not required to dismiss the action without prejudice but is left to exercise its discretion.”
Establishes the legal standard for when dismissal for failure to serve is discretionary versus mandatory.
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Join FLexlaw to unlock all legal intelligenceRobinson filed a complaint alleging battery during an arrest against Simon Shackelford, John Does #1-5, and Sheriff Kevin Beary. After amendments, the…
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Janice Robinson appeals the final order entered by the trial court dismissing her complaint for insufficiency of service. Determining that no reversible error has been shown, we affirm.
Robinson filed a complaint against Simon Shackelford, John Does # 1-5, and Kevin Beary, Sheriff of Orange County, Florida alleging that she had been battered during the course of an arrest. Sheriff Kevin Beary was eventually dismissed from the lawsuit. Ultimately, Robinson filed a fourth amended complaint naming Shackelford and Travis Mackey as defendants. Shackelford and Mackey filed motions to dismiss the complaint for insufficiency of service of process, alleging that they were never served with a summons or a copy of the complaint and that more than 120 days had elapsed since the filing of the complaint against them.1 A non-evidentia-ry hearing was held on the motion by a magistrate judge.2 However, no transcript of the hearing was included in the record on appeal. After the magistrate issued its recommended order, Robinson filed exceptions and a motion for rehearing related thereto. No transcript of the hearing which was conducted on the motion for rehearing was included in the record on appeal. The circuit court thereafter granted the motion to dismiss, finding there was no good cause or excusable neglect proffered by Robinson which excused the insufficiency of process.
Robinson challenges the trial court’s final order of dismissal, claiming that the trial court was not legally justified in dismissing her complaint. We disagree.
An order dismissing a cause of action for failure to timely serve the complaint is reviewed for an abuse of discretion. Wagner v. Strickland, 908 So.2d 549 (Fla. 1st DCA 2005). If a plaintiff shows *852good cause or excusable neglect, the court must extend the time for service of process and has no discretion to do otherwise; however, if neither good cause nor excusable neglect is shown, the trial court is not required to dismiss the action without prejudice but is left to exercise its discretion. Pixton v. Williams Scotsman, Inc., 924 So.2d 37 (Fla. 5th DCA 2006).
Here, without having a transcript of the hearings conducted below, we are unable to determine that the trial court committed any error in dismissing Robinson’s complaint. Accordingly, we affirm the instant dismissal order. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979)(holding in appellate proceedings, decision of trial court has presumption of correctness and burden is on appellant to demonstrate error); Maslow v. Edwards, 886 So.2d 1027 (Fla. 5th DCA 2004)(holding without a transcript of proceedings below, review on appeal is limited to errors of law that are apparent on face of record).
AFFIRMED.
SAWAYA and ORFINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Lashawn D. Brown v. State, 924 So. 2d 37 (Fla. 1st DCA 2006)
- Maslow v. Julianne M. Edwards, 886 So. 2d 1027 (Fla. 5th DCA 2004)
- Clavijo v. State, 886 So. 2d 1027 (Fla. 3d DCA 2004)
- Wagner v. Garland Strickland, 908 So. 2d 549 (Fla. 1st DCA 2005)