ROBERT WHITNEY, D.C. D/B/A 127TH STREET INTRACOASTAL CHIROPRACTIC CENTER, APPELLANT,
v.
A AVENTURA CHIROPRACTIC CARE CENTER, INC., AND PEMBROKE PINES CHIROPRACTIC CARE CENTER, INC., APPELLEES
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A pro se defendant appealed an order denying his motion to set aside a default judgment entered in 1993. The Florida appellate court affirmed, holding that the defendant failed to demonstrate excusable neglect, due diligence, or a meritorious defense required to vacate the default.
The motion to set aside the default final judgment was properly denied because Whitney failed to assert excusable neglect, due diligence, or a meritorious defense. A self-represented litigant who knows a lawsuit has been filed and served upon him must keep watch over the case, and failure to receive further mailings does not protect him from an adverse judgment when the original complaint was properly served.
[1] A motion to set aside a default final judgment must assert excusable neglect, due diligence, and the existence of a meritorious defense.
[2] A party appealing a judgment has the burden to submit a record adequate to support the appeal.
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“The appellant has the burden to submit to this court a record adequate to support the appeal.”
Establishes that Whitney failed to meet his burden by not obtaining copies of the pleadings to support his claims on appeal.
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Join FLexlaw to unlock all legal intelligenceWhitney was sued in 1990 and served with the original complaint. His counsel later withdrew from representation. An amended complaint was apparently f…
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This is an appeal from an order denying a motion filed in 2007 to set aside a default final judgment entered and recorded in 1993. We affirm because the motion and affidavit fail to assert excusable neglect, due diligence, or the existence of a meritorious defense. Lazcar Int’l Inc. v. Caraballo, 957 So.2d 1191 (Fla. 3d DCA 2007).
The appellant argued below and here that he never received various pleadings and the default final judgment in 1992 and 1993. The circuit court file on the case was destroyed in 1998, however, and the appellant has not been able to obtain and file copies of the pleadings to support his allegations. “The appellant has the burden to submit to this court a record adequate to support the appeal.” Chisholm v. Chisholm, 538 So.2d 961, 962 (Fla. 3d DCA 1989) (citations omitted).
Moreover, the final judgment was recorded among the public records in 1993. The appellant has advanced no reason for simply ignoring, for so many years, a lawsuit he knew had been filed and served upon him in 1990. And although an amended complaint apparently1 was filed after appellant’s counsel withdrew, there was no obligation to serve it by process upon appellant if that pleading did not contain “new or additional claims.” See Fla. R. Civ. P. 1.080(a); Scheb v. Shalam Imports, Inc., 656 So.2d 956 (Fla. 2d DCA 1995).
The cautionary message to parties who have been sued and then elect to proceed without legal representation is this: keep a watchful eye on the case, whether by inspecting the court file or checking the on-line docket. The fact that a self-represented person does not receive further mailings regarding the case does not itself protect her or him from an adverse judgment, because certificates of service by counsel are presumptively valid. Ignoring a lawsuit after service of the original complaint (and absent dismissal with prejudice of all claims) is the legal equivalent of ignoring the dashboard signal for “no brakes” in a rapidly-moving automobile.
The order denying the motion to vacate is affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Lidia E. Contreras v. Mendez, 194 So. 3d 396 (Fla. 3d DCA 2016)…ss of record for service of papers was current and reliable. We have repeatedly cautioned pro se parties that such behavior is fraught with peril. Wolff v. Piwko, 104 So. 3d 372 (Fla. 3d DCA 2012); Whitney v. A Aventura Chiropractic Care Ctr., Inc., 21 So. 3d 95 (Fla. 3d DCA 2009). [*398] Reversed and remanded for reinstatement of the amended final judgment.…
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Wolff v. Piwko, 104 So. 3d 372 (Fla. 3d DCA 2012)…after service of the original complaint (and absent dismissal with prejudice of all claims) is the legal equivalent of ignoring the dashboard signal for “no brakes” in a rapidly-moving automobile. Whitney v. A Aventura Chiropractic Care Ctr., Inc., 21 So. 3d 95, 96 (Fla. 3d DCA 2009). Piwko’s next argument is equally unavailing. He argues that Florida Rule of Civil Procedure 1.080(a) required the service of the third amended complaint (containing a new claim) “in the manner provided for service of summons…
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Birol Karan v. Pernia (Fla. 3d DCA 2022)
Authorities Cited
- Lazcar Int'l, Inc. v. Caraballo, 957 So. 2d 1191 (Fla. 3d DCA 2007)
- Chisholm v. Chisholm, 538 So. 2d 961 (Fla. 3d DCA 1989)
- Scheb v. Shalam Imports, Inc., 656 So. 2d 956 (Fla. 2d DCA 1995)