Tuesday, May 26, 2009

Fifth DCA Affirms Dismissal for Insufficient Service of Process

In Robinson v. Shackelford (5D08-1066), the Fifth DCA affirmed the circuit court's dismissal for insufficiency of service of process. The court held:
An order dismissing a cause of action for failure to timely serve the complaint is reviewed for an abuse of discretion. Wagner v. Strickland, 908 So.2d 549 (Fla. 1st DCA 2005). If a plaintiff shows good cause or excusable neglect, the court must extend the time for service of process and has no discretion to do otherwise; however, if neither good cause nor excusable neglect is shown, the trial court is not required to dismiss the action without prejudice but is left to exercise its discretion. Pixton v. Williams Scotsman, Inc., 924 So.2d 37 (Fla. 5th DCA 2006).
The Court also addressed a second issue: the failure to provide a transcript of the proceeding below:
Here, without having a transcript of the hearings conducted below, we are unable to determine that the trial court committed any error in dismissing Robinson's complaint. Accordingly, we affirm the instant dismissal order. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979)(holding in appellate proceedings, decision of trial court has presumption of correctness and burden is on appellant to demonstrate error); Maslow v. Edwards, 886 So.2d 1027 (Fla. 5th DCA 2004)(holding without a transcript of proceedings below, review on appeal is limited to errors of law that are apparent on face of record).


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