SOPHIA J. GIBBONS, N/K/A SOPHIA J. RACZKOWSKI, APPELLANT,
v.
L.W. BLAKE MEMORIAL HOSPITAL, CARL HEINZERLING, M.D., ET AL., APPELLEES
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Sophia Gibbons appealed the trial court's denial of her motion for relief from judgment after her complaint was dismissed for failure to timely amend. The court affirmed, holding that the appellant failed to present competent evidence of excusable neglect and thus did not demonstrate an abuse of the trial court's discretion.
The court affirmed the trial court's denial of the motion for relief from judgment. The appellant failed to provide any competent evidence in the record to support her claim of excusable neglect, and therefore did not demonstrate an abuse of discretion by the trial court.
[1] A trial court does not abuse its discretion in denying a motion to vacate an order when the court resolves factual disputes regarding notice after receiving evidence and…
[2] An appeal from an order denying a motion to vacate a prior order does not bring up for review the merits of the prior order sought to be vacated.
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Join FLexlaw to unlock all legal intelligence“A motion for relief from judgment does not affect the finality of the judgment or suspend its operation.”
Establishes that procedural defects in the dismissal order cannot be reviewed via a motion for relief from judgment when the final judgment was not timely appealed.
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Join FLexlaw to unlock all legal intelligenceGibbons filed a complaint against L.W. Blake Memorial Hospital, Dr. Carl Heinzerling, and Dr. C.G. Rao. The hospital and Dr. Heinzerling filed motions…
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PER CURIAM.
The appellant, Sophia J. Gibbons, now known as Sophia J. Raczkowski, challenges the trial court’s order denying her motion for relief from judgment. We affirm.
The appellant filed a complaint in the circuit court listing several defendants, including the appellees, L.W. Blake Memorial Hospital, Carl Heinzerling, M.D., and C.G. Rao, M.D. In response to this complaint, appellee Rao filed a letter denying any involvement in the alleged incident. Appel-lee Blake Memorial filed a motion to dismiss the complaint alleging that the appellant failed to state a cause of action and that the action was barred by the statute of limitations. Appellee Henizerling also filed a motion to dismiss the complaint based on the statute of limitations.
The trial court granted both motions to dismiss, but also granted the appellant twenty days to file an amended complaint. After the appellant failed to amend her complaint within twenty days, the trial court dismissed the complaint with prejudice and entered a final judgment in favor of appellees Blake Memorial and Heinzer- ling. (Based upon the record presented, it appears this action is still pending against appellee Rao.) The appellant then filed a motion for relief from judgment due to excusable neglect pursuant to Florida Rule of Civil Procedure 1.540(b). The trial court denied the motion, and this timely appeal followed.
At the outset we note that the trial court’s initial order dismissing the complaint with leave to amend did not specifically indicate that the appellant’s failure to timely amend would result in a dismissal without further notice, and in addition, the record does not reveal whether the appellant was given separate notice of the hearing to dismiss with prejudice. Although these deficiencies may reveal the possibility of procedural error, Intermodal Transp. Serv., Inc. v. Kane Furniture, 522 So. 2d 1048 (Fla.2d DCA 1988); Neu v. Turgel, 480 So. 2d 216 (Fla.3d DCA 1985), cause dismissed, 486 So. 2d 598 (Fla.1986), the appellant’s failure to timely appeal the final judgment precludes this court from considering such issues. A motion for relief from judgment does not affect the finality of the judgment or suspend its operation. Fla.R.Civ.P. 1.540(b); Bland v. Mitchell, 245 So. 2d 47 (Fla.1970); Odum v. Morningstar, 158 So. 2d 776 (Fla.2d DCA 1963). See also, Graham v. Eisele, 245 So. 2d 682 (Fla. 3d DCA 1971). We, therefore, address only the trial court’s denial of the appellant’s motion for relief from judgment.
The decision of whether to grant or deny a rule 1.540(b) motion for relief from a final judgment is within the trial court’s broad discretion. See Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978). The appellant’s motion asserts excusable neglect due to “various health reasons/difficulties, [e.g.], pending surgery/surgeries.” The record on appeal, however, does not contain any competent evidence to support the appellant’s claim of excusable neglect or a transcript of the hearing on the appellant’s motion for relief. See Bei v. Harper, 475 So. 2d 912 (Fla. 2d DCA 1985) (appellant has burden to submit adequate record to support appeal). See also, Applegate v. Barnett Bank, 377 So. 2d 1150 (Fla.1979). Since the record before us contains no evidence of excusable neglect, the appellant has failed to show any abuse of discretion by the trial court in denying her motion for relief from judgment. See Schwab. We, accordingly, affirm.
AFFIRMED.
SCHOONOVER, A.C.J., and PARKER and PATTERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Bailey, 603 So. 2d 1384 (Fla. 1st DCA 1992)…ial court’s denial of a Rule 1.540(b) (or Federal Rule 60(b)) motion is limited to determining whether the denial amounts to an abuse of discretion. V.T.A., Inc. v. Airco, Inc., 597 F. 2d 220 (10th Cir.1979); Gibbons v. L.W. Blake Memorial Hospital, 538 So. 2d 1386 (Fla. 2d DCA 1989). Where, however, it is asserted that the underlying judgment (or part thereof, as in the instant case) is void, it is necessary to evaluate the underlying judgment in reviewing the order denying the motion. V.T.A., 597 F. 2d at 22…
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Crowley v. Crowley, 678 So. 2d 435 (Fla. 4th DCA 1996)…usband, in order to obtain a more favorable ruling than what she would have obtained had the court known of these facts. Although a trial court is accorded broad discretion in determining rule 1.540(b) motions, Gibbons v. L.W. Blake Memorial Hosp., 538 So. 2d 1386 (Fla. 2d DCA), rev. denied, 548 So. 2d 663 (Fla.1989), cert. denied, 493 U.S. 1085, 110 S.Ct. 1147, 107 L.Ed.2d 1051 (1990), an evidentiary hearing is necessary if the essential facts of the fraud are pleaded with specificity. Wiley v. Wiley, 546 So…
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Haas v. ROE, 704 So. 2d 1117 (Fla. 2d DCA 1998)…d specifically provides that on failure to amend within the stated time, the cause will be dismissed without further notice.” Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51, 54-55 (Fla. 3d DCA 1982); accord Gibbons v. Blake Memorial Hosp., 538 So. 2d 1386 (Fla. 2d DCA 1989). It does not appear from the record that the trial judge provided appellant with separate notice that he would be entering final judgments for Roe and Patsko, as condition one of Nezelek requires. The court scheduled two hearings…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Schwab & Co., Inc. v. Breezy BAY, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978)
- Clyde Odum et ux. v. Morningstar, 158 So. 2d 776 (Fla. 2d DCA 1963)
- BEI v. Harper, 475 So. 2d 912 (Fla. 2d DCA 1985)
- Bland v. Mitchell, 245 So. 2d 47 (Fla. 1970)
- Graham v. Eisele, 245 So. 2d 682 (Fla. 3d DCA 1971)
- Allstate Ins. Co. v. Baldwin, 480 So. 2d 216 (Fla. 3d DCA 1985)
- NEU v. Turgel, 480 So. 2d 216 (Fla. 3d DCA 1985)
- Intermodal Transp. Servs., Inc. v. Kane Furniture, 522 So. 2d 1048 (Fla. 2d DCA 1988)