Wednesday, October 21, 2009

Third District Affirms 2007 Order Denying Motion To Set Aside Default Entered In 1993

In Robert Whitney, D.C. d/b/a 127th Street Intracoastal Chiropractic Center v. A Aventura Chiropractic Care Center, Inc., and Pembroke Pines Chiropractic Care Center, Inc. (3D08-2546), the Third District affirmed a trial court's 2007 order denying a motion to set aside a default final judgment entered in 1993.  "The appellant argued below and here that he never received various pleadings and the default final judgment in 1992 and 1993...Moreover, the final judgment was recorded among the public records in 1993. The appellant has advanced no reason for simply ignoring, for so many years, a lawsuit he knew had been filed and served upon him in 1990. And although an amended complaint apparently1 was filed after appellant’s counsel withdrew, there was no obligation to serve it by process upon appellant if that pleading did not contain “new or additional claims.” 

The Court then gave a warning to pro se parties and stated:
The cautionary message to parties who have been sued and then elect to proceed without legal representation is this: keep a watchful eye on the case, whether by inspecting the court file or checking the on-line docket. The fact that a self-represented person does not receive further mailings regarding the case does not itself protect her or him from an adverse judgment, because certificates of service by counsel are presumptively valid. Ignoring a lawsuit after service of the original complaint (and absent dismissal with prejudice of all claims) is the legal equivalent of ignoring the dashboard signal for “no brakes” in a rapidly-moving automobile.


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