LYNNE A. LARKIN, APPELLANT,
v.
ELIZABETH H. BURANOSKY, RANDY NIELSEN, RICHARD M. JOHNSTON, ANTHONY PEDICINI, PUBLIC CONCEPTS, LLC., A FLORIDA LIMITED LIABILITY COMPANY, AND KIM LEEBOVE, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Lynne Larkin sought relief from a summary judgment in her defamation suit against Anthony Pedicini under Florida Rule of Civil Procedure 1.540, claiming excusable neglect when her attorneys failed to timely provide her the judgment. The court affirmed the trial court's denial, holding that Rule 1.540 is a limited remedy not designed as a substitute for timely appeal.
The trial court did not abuse its discretion in denying the Rule 1.540 motion. Service of judgment on Larkin's attorneys satisfied the rule's requirements, and Larkin's failure to timely file an appeal was not excusable neglect because she had over two weeks from receiving the judgment to file a timely notice of appeal.
[1] A trial court does not abuse its discretion in denying a motion for relief from judgment under Rule 1.540 when the movant had sufficient time to file a timely notice of a…
[2] Rule 1.540 is intended for the correction of clerical mistakes and relief from judgments under limited circumstances, not as a substitute for a timely appeal.
Previewing 2 of 5 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“Rule 1.540 is designed for the correction of clerical mistakes and to provide a mechanism for relief from judgments, decrees, orders and proceedings under certain articulated and limited circumstances. It is not a substitute for a timely appeal.”
Establishes the limited purpose and scope of Rule 1.540 relief
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLarkin was represented by two attorneys in a defamation suit against Pedicini and others. The circuit court granted Pedicini's motion for final summar…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Timely Appeal cases and more on FLexlaw
We affirm the trial court’s order denying relief under Florida Rule of Civil Procedure 1.540.
Attorney Lynne Larkin sued appellee Anthony Pedicini and others for defama*686tion. Larkin was represented by two attorneys. Also, Larkin filed a notice of appearance as co-counsel.
The circuit court granted Pedicini’s motion for final summary judgment in an order filed with the clerk on December 30, 2008. Larkin did not receive a copy of the order from her attorneys until January 12, 2009. She filed an untimely motion for rehearing on January 14, 2009, See Fla. R. Civ. P. 1.530(b). The trial court denied the motion the next day. Larkin filed a notice of appeal on February 16, 2009; this court granted Pedicini’s motion to dismiss the appeal as untimely.
Next, Larkin moved under Florida Rule of Civil Procedure 1.540 for relief from judgment, seeking to have the court issue a new final judgment that she could appeal. At the hearing on the motion, Lar-kin argued that her lateness in filing both the motion for rehearing and the notice of appeal was the result of excusable neglect, which was the failure of her attorneys to timely provide her a copy of the final judgment. The trial judge denied the I.540 motion, observing that when Larkin received the order denying her motion for rehearing she had “at least two weeks” to file a timely notice of appeal.
The trial judge did not abuse his discretion in denying the rule 1.540 motion. See J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66, 68 (Fla. 4th DCA 2008).
“Rule 1.540 is designed for the correction of clerical mistakes and to provide a mechanism for relief from judgments, decrees, orders and proceedings under certain articulated and limited circumstances. It is not a substitute for a timely appeal.” Beal Bank, S.S.B., Inc. v. Sherwin, 829 So.2d 961, 962 (Fla. 4th DCA 2002) (citations omitted).
Contrary to Larkin’s argument, the trial court did not commit a clerical mistake in not mailing the final judgment to Larkin in addition to her attorneys. Although rule 1.080(h)(1) requires a conformed copy of a judgment to be transmitted to “parties,” that rule is read in conjunction with rule 1.080(b), which provides that “[w]hen service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court.” Fla. R. Civ. P. 1.080, Committee Notes, 1972 Amendment.
Nor does this case demonstrate “excusable neglect” under rule 1.540(b)(1). As the trial judge observed, from the date Larkin received the final judgment, she had over two weeks to file a timely notice of appeal. The mistake which eventually resulted in the late notice of appeal was the filing of an untimely motion for rehearing in the trial court. In Feinberg v. Feinberg, 410 So.2d 517, 518 (Fla. 4th DCA 1981), we held that this very circumstance did not justify relief under rule 1.540. See also David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins. Co., 972 So.2d 275, 281 (Fla. 2d DCA 2008) (finding that the trial court erred when it granted Dresdner’s 1.540(b) motion, vacated its earlier judgment, and reentered judgment “without any substantive change,” but with later date, because “series of events that led to the late filing of Dr. Dresdner’s first notice of appeal originated in the office of his appellate counsel”).
Affirmed.
GROSS, C.J., STEVENSON and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Desmond Byrd v. State, 985 So. 2d 66 (Fla. 1st DCA 2008)
- David M. Dresdner, M.D., P.A. v. The Charter OAK Fire Ins. Co., 972 So. 2d 275 (Fla. 2d DCA 2008)
- Beal Bank v. Irwin J. and Marcia M. Sherwin, 829 So. 2d 961 (Fla. 4th DCA 2002)
- Feinberg v. Feinberg, 410 So. 2d 517 (Fla. 4th DCA 1981)