County Civil Court:  APPELLATE PROCEDURE - The trial court did not abuse its discretion in denying relief from 20-year-old judgment where Appellant failed to seek relief from final judgment under Rule 1.540(b), Fla. R. Civ. P.  Motion to dismiss granted; judgment affirmed.  Davis v. Bowen, No. 10-000050AP-88B (Fla. 6th Cir. App. Ct. August 23, 2011).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

WILLIE DAVIS,

                  Appellant,                                                             Ref. No.: 10-000050AP-88B

v.                                                                                             UCN:  522010AP000050XXXXCV

 

JULIE BOWEN,

                  Appellee.

                                                            /

ORDER GRANTING MOTION TO DISMISS

            THIS CAUSE is before the Court on appeal by Appellant Willie Davis from the Order Denying Rel[ie]f from Judgment entered by County Court on September 28, 2010.  Counsel for the Appellee entered a limited notice of appearance.  In lieu of a response, Appellee filed a Motion to Dismiss for lack of jurisdiction.  Appellee argues that Appellant never obtained service on her in the underlying County Court case; the Judgment from which Plaintiff seeks relief was entered on June 19, 1990; Appellant never sought to set aside the Judgment; and the Court did not retain jurisdiction over the Appellee.  In response, Appellant filed “Special Objections; Ret[ur]n and Answer to Appellee Motion to Dismiss” and a cover letter to this Court dated May  20, 2011.  Appellant argues that service was made on Appellee’s attorney and that the June 19, 1990, Judgment is void for lack of jurisdiction because the accident took place in Palm Beach County and he was a resident of Palm Beach County.

            Rule 1.540 of the Florida Rules of Civil Procedure provides that the court may relieve a party from a final judgment for enumerated reasons such as mistake, inadvertence, surprise or excusable neglect; newly discovered evidence; fraud, misrepresentation, or other misconduct of an adverse party; that the judgment if void; or that the judgment has been satisfied, released, or discharged.  Fla. R. Civ. P. 1.540(b).  Because the trial court is accorded broad discretion in determining Rule 1.540(b) motions, the standard of review of the September 28, 2010, order is whether the trial court abused its discretion.  Leach v. Salehpour, 19 So. 3d 342 (Fla. 2d DCA 2009) (citing J.J.K. Int’l, Inc. v. Shivbaran, 985 So. 2d 66, 68 (Fla. 4th DCA 2008));

            Upon review of the record, the Court finds that Appellant has failed to demonstrate that the trial court abused its discretion in denying Appellant’s Motion for Relief from Judgment.  Appellant does not dispute that the underlying judgment from which he seeks relief was entered in June 1990, and he did not seek relief from the judgment in a timely manner in accordance with Rule 1.540.

            Accordingly, it is       

            ORDERED AND ADJUDGED that the Motion to Dismiss is GRANTED, thereby affirming the trial court’s Order of September 28, 2010. 

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida, on August ______, 2011.                              

                                                                                               

Original order entered on August 23, 2011 by Circuit Judges Amy M. Williams, Peter Ramsberger, and Pamela A.M. Campbell.

 

 

 

 

 

Copies furnished to:

 

Willie Davis  GDC #971252

Dorm D-1-22-T

Ware State Prison

3620 Harris Road

Waycross, GA 31503

 

Gregory L. Olney, II, Esquire

P.O. Box 27

St. Petersburg, FL 33731

Willie Davis  GDC #971252

Hays Annex, North Unit 4 Bed 13

Hays State Prison

P.O. Box 668

Underwood Drive

Trion, GA 30753