County Civil Court: APPELLATE PROCEDURE – Preservation of Error – Florida Rules of Civil Procedure, Rule 1.540 – a motion for relief from judgment under Rule 1.540 cannot be used to overcome a litigant’s failure to file a timely notice of appeal – appellate court does not have jurisdiction to review new claims or evidence - Judgment affirmed.  McCloskey v. Amelia Auto Transport, Inc., Appeal No. 06-0041AP-88A (Fla. 6th Cir. App. Ct. Feb. 7, 2007). 








vs.                                                                                        Appeal No. 06-0041AP-88A





Appeal from Pinellas County Court

Small Claims Division


George McCloskey

Appellant, pro se


Brian E. Johnson, Esquire

Attorney for Appellee




            THIS CAUSE came before the Court on appeal, filed by George McCloskey (McCloskey), from the Order on Plaintiff’s Motion for Hearing, entered June 14, 2006.  Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.

The record shows that McCloskey filed a Statement of Claim in Small Claims Court against Amelia Auto Transport (Amelia) seeking to recover the shipping charge of $ 875.00, plus additional costs and fees, for the transportation of his 1986 Cadillac Stretch Limousine from Los Angeles, California to Vero Beach, Florida.  McCloskey asserted that Amelia had no authority to transport his vehicle and that Bacon Transportation, Inc. (Bacon), from whom Amelia received the dispatch order, likewise had no authority to move his vehicle.  McCloskey did not sue Bacon or the storage facility in California that released the vehicle to Amelia.  Amelia filed a Counterclaim seeking damages, costs and attorneys fees.

After a trial on the matter, the trial court entered a Final Judgment, on March 18, 2005, in favor of Amelia, finding that Amelia had transported the vehicle pursuant to authorization given by McCloskey through an agent/broker, Bacon, acting on his behalf.  The trial court awarded damages in the amount of $ 2250.00 and retained jurisdiction to consider a motion for attorney’s fees and costs.  McCloskey filed a motion for rehearing, which the trial court denied.  McCloskey did not seek appellate review of the Final Judgment.[1]

On March 10, 2006, McCloskey filed a motion for relief from judgment pursuant to Florida Rules of Civil Procedure, Rule 1.540, essentially arguing the same issues as those raised in his motion for rehearing.  The matter came before the trial court on May 26, 2006.  After hearing testimony from McCloskey, specifically that he believed the dispatch order was fraudulent, and argument from counsel, the trial court denied McCloskey’s request for a formal evidentiary hearing.  The trial court found that, even if the dispatch order was fraudulent as McCloskey claimed, that would not have changed the outcome of Amelia’s actions to transport the vehicle, nor Judge Grube’s ruling.

The basic issue raised by McCloskey is whether the trial court erred in denying a formal evidentiary hearing to consider his motion for relief from judgment.  A ruling on a motion for relief from judgment is reviewed under the abuse of discretion standard.  See Phenion Development Group, Inc. v. Love, 940 So.2d 1179, 1181 (Fla. 5th DCA 2006).

Initially, it is important to point out that McCloskey did not appeal the Final Judgment.  A motion for relief from judgment pursuant to Rule 1.540 cannot be used to overcome a litigant’s failure to file a timely appeal.  See Beal Bank, S.S.B., Inc. v. Sherwin, 829 So.2d 961, 961 (Fla. 4th DCA 2002).  Likewise, a Rule 1.540 motion cannot be used as a means to introduce new claims or evidence that should have been offered to the trial court during the original proceedings.  See Phenion, 940 So.2d at 1183. 

Even so, in this case it is clear that the trial court carefully considered McCloskey’s testimony and the record in determining whether McCloskey had sufficiently pled a Rule 1.540 motion based on fraud to warrant a full evidentiary hearing.  The Court finds that the trial court did not abuse its discretion in concluding that McCloskey failed to sufficiently allege fraud, particularly when McCloskey was attempting to rehash matters already considered during the trial court during the trial and the subsequent motion for rehearing.  See id.; see also Dynasty Express Corporation v. Weiss, 675 So.2d 235, 239 (Fla. 4th DCA 1996).  Therefore, it is,

            ORDERED AND ADJUDGED that the Order on Plaintiff’s Motion for Hearing is affirmed. 

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of April 2007.



                                                         R. TIMOTHY PETERS

                                                         Circuit Judge, Appellate Division





______________________________                        ______________________________

GEORGE M. JIROTKA                                          CYNTHIA J. NEWTON

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

Copies furnished to:


Judge Kathleen T. Hessinger


George McCloskey

501 Venue Court

Vero Beach, FL  32966


Brian E. Johnson, Esquire

7190 Seminole Blvd.

Seminole, FL  33772


[1] The trial court entered its Amended Final Judgment, on May 12, 2005, and its Second Amended Final Judgment, on December 9, 2005, which also were not appealed.