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Filing # 92079336 E-Filed 07/03/2019 02:23:39 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA CIVIL DIVISION
898 FIFTH AVENUE SOUTH HOLDINGS,
LLC, a Foreign Limited Liability Company,
Plaintiff,
vs. CASE NO.:18-218-3CA-EVK
BAYSTAR HOLDINGS, LLC, a Florida Limited
Liability Company; KYLE D. MCLAUGHLIN,
And DANAN JON DELSING,
Defendants.
DANAN JON DELSING,
Crossclaim-Plaintiff,
vs.
KYLE D. MCLAUGHLIN,
Crossclaim-Defendant.
/
REPORT AND RECOMMENDATIONS OF THE MAGISTRATE DENYING
CROSS-CLAIM DEFENDANT MCLAUGHLIN’S
MOTION FOR RELIEF FROM FINAL JUDGMENT
ATTENDANCE:
Plaintiff X__ Attomey for XClaim-Plaintiff
Defendant XX_ Attorneys for X-Claim-Defendant
Xx Court Reporter ECR Clerk of Court
This cause has come on to be heard before Magistrate David C. Friedman on June
20, 2019, pursuant to the Motion to Vacate Final Judgment (by Cross-Claim Defendant
MCLAUGHLIN). The Magistrate has jurisdiction pursuant to the Florida Rules of Civil
Procedure, 1.490, et seg. The Court finds that an Order of Referral for the matters heard
by the Magistrate was served upon the parties and that no party made a timely objection
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 07/03/2019 02:23:39 PMto the referral.' This Court being otherwise fully advised, the following Findings of Fact
and Conclusions of Law are made:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PROCEDURAL HISTORY
1. This action began as a commercial landlord-tenant dispute for eviction and
damages. Defendant Delsing has reached a stipulation with the Plaintiff and
the main cause of action has been dismissed.
2. The Cross-Claim Defendant McLaughlin has filed the Motion for Relief from
a Final Judgment with a supporting affidavit. The Judgment for damages in
favor of Cross-Claim Plaintiff Delsing against McLaughlin was entered on
April 23, 2019. A Default was entered against McLaughlin by the Circuit
Court Judge on November 26, 2018.
3. Plaintiff's complaint was served upon Defendant McLaughlin at 1376
Chesapeake Avenue in Naples on August 7, 2018.
4. On August 23, 2018, Defendant Delsing responded to the Plaintiff's
Complaint and sued McLaughlin in a Cross-Claim.
5. On September 7, 2018, McLaughlin as the Cross-Claim Defendant signed an
Acceptance of Service and Waiver of Service of Process, which was filed on
the same day.
6. On November 20, 2018, Delsing filed a Motion for Judicial Default against
McLaughlin alleging he failed to file any papers and had accepted service.
The certificate of service reflects a copy was mailed to McLaughlin at the
address where he was served initial process. The Order was submitted to
Judge Lauren L. Brodie and was signed and filed on November 26, 2018 and
McLaughlin was included on the certificate of service on the Order Granting
Motion for Judicial Default.
' At the hearing, Delsing did not voice any objection to the Magistrate’s jurisdiction, although he had filed
an Objection on May 17%.10.
11.
12.
13.
14.
On February 20, 2019, Delsing filed a Motion for Final Judgment after
Default against McLaughlin. A copy was mailed to McLaughlin at the
address where he was served initial process.
On March 20, 2019, Delsing filed and served McLaughlin at that same
address with the Notice of Hearing on the Motion. McLaughlin was listed
again in the certificate of service.
The hearing was conducted on March 28, 2019, with no appearance by
McLaughlin and this Court recommended the granting of Delsing’s Motion.
The Order Adopting the Recommendations and entering the Final Judgment
against McLaughlin was signed and filed on April 23, 2019. Both the
Recommended Order and the Order Adopting were copied to both counsel for
Delsing and to McLaughlin.
On May 2, 2019, counsel for McLaughlin filed a Notice of Appearance with
the subject Motion and attachments. On May 3" McLaughlin’s Affidavit in
support of the Motion was filed.
On May 15, 2019, McLaughlin served and filed the Notice of Hearing on the
Motion.
On May 24, 2019, Delsing filed a Response to the Motion for Relief from
Final Judgment.
On June 5, 2019 McLaughlin filed an Answer with Affirmative Defenses to
Delsing’s Cross-Claim. A request for leave of court is not apparent from the
court file.
At the hearing the Court heard legal argument from counsel for the parties,
reviewed the exhibits admitted into evidence, the Affidavits presented by each
party, and heard the testimony of McLaughlin, who was called to the stand by
Delsing.2
FACTUAL ALLEGATIONS IN MOTION AND MCLAUGHLIN’S AFFIDAVIT
15.
McLaughlin’s Motion alleges that after service of the Plaintiffs Complaint he
received an email from the attomey for Delsing and he attached it to his
2 The testimony of attorney Peck Ralston, one of the attorneys for Delsing, was offered, but when counsel
for Delsing represented to the Court that nothing clearly significant beyond the averments in her Affidavit
(filed with the May 24" Response) would be included, the Court declined to hear her testimony.
3Affidavit. The email asked him to accept service of Delsing’s Answer,
Affirmative Defenses and Crossclaim and that it attached a copy of same. He
asserts that the pleading was and the form for Acceptance and Waiver of
Service of Process were attached, but he did not receive any explanation that
he was being sued and no warning that he there could be consequences if he
did not timely file a response at the courthouse. He infers that he did know
Delsing was suing him. The emails exchanged between McLaughlin and
counsel for Delsing attached to Delsing’s Response paint a clearer picture of
Mclaughlin’s understanding that he fully understood he was being sued in
Delsing’s Crossclaim. And of course the summons he received on the
Plaintiff’s claim made him fully aware that if he filed no papers within twenty
days of service a default could be entered.
16. He alleges in his affidavit he did not receive anything by Certified mail. This
is true, but its’ legal significance is questionable, as the Court’s analysis will
demonstrate.
17. He asserts that the notice of hearing on the Motion for Final Judgment
(admitted as Exhibit C) was received but since it wasn’t directed specifically
to him, he didn’t understand he needed to attend. His name is on the casestyle
on the notice of hearing and in the certificate of service, and he was the only
party being sued by Delsing. The matter noticed for hearing was “Crossclaim-
Plaintiff's Motion for Final Crossclaim Judgment After Default.”
18. After the Judgment was entered McLaughlin states that since he was not a
party to the mediation agreement which he was accused of breaching and that
since he was only an agent for Mr. Jack Newby who signed the mediation
agreement, he should not be sued for breach. The Crossclaim specifically
alleged that Newby was a realtor and at the mediation session was an agent
acting on behalf of McLaughlin.
FACTUAL ALLEGATIONS IN DELSING’S ATTORNEY’S AFFIDAVIT
19. The affidavit of attorney Ralston Peck includes some significant allegations
and reference copies of emails and other communications between
McLaughlin and the attorney. The emails are in evidence (Exh. B).
420. Attorney Ralston Peck’s communication with McLaughlin began on or about
August 31° in a phone call and in a follow up email.
21.In a September 4 email to McLaughlin he was sent a copy of Delsing’s
Answer, Affirmative Defenses and Crossclaim against McLaughlin. Included
was a copy of the Acceptance and Waiver of Service with a request that he
consider signing and returning. His response was an effort to negotiate an
amicable resolution with Delsing through Delsing’s attorney. The attorney’s
response indicated a willingness to pass along to Delsing the content of
Mclaughlin’s email and also informed McLaughlin that if he declined to
accept and waive personal service he would be served.
22. In an email on September 5 McLaughlin said he would sign the Acceptance
and Waiver of Service.
23. Emails in October between McLaughlin and counsel for Delsing describe
some attempts at finding a tenant for the property.
24. A series of emails on November 27 between McLaughlin and attorney
Ralston Peck reveal that McLaughlin knew that Delsing was seeking to have
McLaughlin defaulted for not responding to the Crossclaim. McLaughlin
learned from Delsing’s attorney that Delsing was asking to be held harmless
by McLaughlin on claims in the action. McLaughlin responded asking that the
effort to have him defaulted be abandoned if he indemnified Delsing.
25. Attorney Ralston Peck’s affidavit also reiterates that McLaughlin was served
copies of the Motion for Judicial Default, the Motion for Final Crossclaim
Judgment, the Affidavit in support, and a copy of the Notice of Hearing on the
Motion.
ANALYSIS OF LEGAL ARGUMENTS IN MCLAUGHLIN’S MOTION
AND IN DELSING’S RESPONSE
26. McLaughlin’s Motion asserts that the Final Judgment is void for lack of
jurisdiction over him because no process was ever issued and served upon
him. The execution and filing of the Acceptance and Waiver of Service
excuse the absence of any summons having been issued. No process need be27.
28.
29.
30.
issued by a Clerk of Court if a party accepts and waived service. This
argument is rejected.
The Motion for Relief From Judgment argues that service of process was
defective be asserting that the waiver did not comply with Rule 1.070(3) of
the Florida Rules of Civil Procedure governing waivers of service. Six
different subparts are listed in the Rule and there is no dispute that some of the
subparts were absent in this case. The Motion cites a case for the proposition
that the requirements of the Rule must be strictly enforced. The quoted
proposition in applicable here. In that case, Griffith v. Slade, 95 So.3d 982
(Fla. App. 2"! DCA 1012), no process was issued or served upon the
successful appellant and, unlike here, no acceptance and waiver of process
was issued. A Notice of Hearing is what brought appellant into the trial court
proceedings from which the appeal was taken. Since neither process was
served nor waived, appellant succeeded in obtaining reversal of the trial
court’s decision below. In Griffith there was a want of service and no
involvement in the proceedings at all, unlike the facts established in this case.
McLaughlin next asserts, alternatively to the arguments regarding service, that
he has met the three prongs to set aside a default judgment. While the Court
finds from his proposed Answer and Affirmative Defenses to Delsing’s
Crossclaim presents meritorious defenses, the arguments that the two other
prongs have been met is considerably weaker.
The evidence presented by the emails in evidence, the procedural history, the
legal authorities presented, and the testimony of McLaughlin at the hearing all
lead to the conclusion that excusable neglect and due diligence are absent.
McLaughlin, a realtor, understood that a written response to a lawsuit was
required as provided in the summons he received with initial process.
McLaughlin testified he had insufficient funds to retain an attorney and that is
why he did not respond to either the Plaintiff's complaint or to Delsing’s
Crossclaim.
The length of time between the entry of the Default (November 26, 2018) and
the filing of the Motion for Relief From Judgment (May 2, 2019) is 157 days.31.
32.
33.
The Court was not cited to and has not found any legal authority which
suggests it is within the trial court’s discretion to find due diligence with such
a delay.
The assertion that McLaughlin established excusable neglect is rejected.
McLaughlin was not misled by anyone and he delayed because of his financial
circumstances. The Court has reviewed all the legally significant documents
which were served upon him. The absence of McLaughlin’s name at the top of
the Notice of Hearing on Delsing’s Motion for Final Judgment on the
Crossclaim is without legal significance where he had knowledge of all the
proceedings and actual notice of the hearing (per his testimony). A failure to
understand the legal consequences one’s inaction or to retain counsel does not
constitute excusable neglect. Joe-Lin, Inc. v. LRG Rest. Grp., Inc., 696 So.2d
539, 541 (Fla. App. 5 DCA 1997). McLaughlin never asserted on the
witness stand that he delayed because of mistake, inadvertence or surprise. It
was because he claimed to not have money for an attorney, and that is not
excusable neglect.
McLaughlin had actual notice of the proceedings and the Court had personal
jurisdiction over him over the valid Acceptance and Waiver of Service. The
Final Judgment is not void. It is voidable and is not subject to being vacated
where there is insufficient evidence to establish due diligence and excusable
neglect.
The Response filed by Delsing cites to legal authority standing for the
proposition that where defects in service are overcome by actual notice of
proceedings and the absence of timely action by the aggrieved party, the trial
court does not commit error in denying a motion to vacate a default or a
default judgment. Where notice is adequate, defects in process or service of
process are waived if not timely raised. Palais v. Wang, 632 So.2d 1132,
1135 (Fla. App. 4° DCA 1994). The defendant in Palais failed to demonstrate
excusable neglect after being personally served, receiving notices, not
appearing at trial, and then moving to set aside the default 100 days later.34. In Chernoff Diamond & Co., Inc. v. Gallin Assoc., Inc., 258 So.3d 563 (Fla.
App. 24 DCA 2018), the trial court set aside a default judgment but was
reversed. Gallin’s presidint was served and knew he had to respond, but he
put it away, forgot about it, and did not act until after Final Judgment had
been entered. He did not establish excusable neglect. Being neglectful of
one’s own legal affairs is insufficient and here McLaughlin’s neglect was not
excusable but intentional.
35. In Redmond v. First Guaranty Mortgage Corp, 268 So.3d 918 (Fla. App. 5"
DCA 2019), the trial court’s denial of a motion to vacate a clerk’s default was
upheld on appeal where appellant waited almost seven months from the time
the default was mailed to him before moving to vacate the default and for
relief from final judgment. As here, a lack of due diligence will not entitle the
movant to relief from their own inaction.
36. Although the trial court is given broad discretion to grant relief from defaults
and default judgment in accord with the public policy considerations favoring
resolution of disputes on their merits, such discretion has its limits. To grant
relief here would clearly exceed those limits.
37. The Court is compelled to deny the requested relief.
RECOMMENDED ORDER OF THE MAGISTRATE
Based upon the above-stated Findings of Fact and Conclusions of Law, the
Magistrate submits the following Recommended Order for the approval of the Court:
A. The Court DENIES McLaughlin’s Motion for Relief from Final Judgment.
PLEASE READ CAREFULLY (Language in Bold is Required by Fla. R. Civ. P.
1.490):
IF YOU WISH TO SEEK REVIEW OF THE REPORT AND
RECOMMENDATIONS MADE BY THE MAGISTRATE, YOU MUST FILE
EXCEPTIONS IN ACCORDANCE WITH FLORIDA RULE OF CIVIL
PROCEDURE 1.490(i). YOU WILL BE REQUIRED TO PROVIDE THE COURT
WITH A RECORD SUFFICIENT TO SUPPORT YOUR EXCEPTIONS ORYOUR EXCEPTIONS WILL BE DENIED. A RECORD ORDINARILY
INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCEEDINGS.
THE PERSON SEEKING REVIEW MUST HAVE THE TRANSCRIPT
PREPARED IF NECESSARY FOR THE COURT'S REVIEW.
The hearing before the Magistrate was electronically recorded by the Court. A party may
request an electronic certified copy of the proceeding on CD, at that party’s expense, and
may then have the recording transcribed, at that party’s expense. Providing the Court
with a copy of the CD, instead of a certified written transcript, is insufficient for review
by the Court of exceptions. Media request forms, procedures, and fees, and a list of
approved Transcriptionists are available on the Court’s website, www.ca.cjis20.org , or
by calling the Court’s Electronic Court Reporting Department at 239-533-8207.
However, if the below box is checked, one of the parties elected to retain, at that party’s
own expense, a live Court Reporter who was present for the purpose of creating the
official record of the proceeding. Accordingly, any request for a transcript of the
proceeding must be submitted to that Court Reporter.
O A live Court Reporter created the official record of the proceeding, and that Court
Reporter’s name and address is as follows: none
All parties have not waived the ten day period in which to file exceptions to the Report and
Recommendations of the General Magistrate.
et
Dated: July 3°, 2019.
BY:
Honorable David C. Friedman
Magistrate, Twentieth Judicial Circuit
ce: by clerk’s e-service upon all attorneys of record
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Filing # 92079336 E-Filed 07/03/2019 02:23:39 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL DIVISION 898 FIFTH AVENUE SOUTH HOLDINGS, LLC, a Foreign Limited Liability Company, Plaintiff, vs. CASE NO.:18-218-3CA-EVK BAYSTAR HOLDINGS, LLC, a Florida Limited Liability Company; KYLE D. MCLAUGHLIN, And DANAN JON DELSING, Defendants. DANAN JON DELSING, Crossclaim-Plaintiff, vs. KYLE D. MCLAUGHLIN, Crossclaim-Defendant. / REPORT AND RECOMMENDATIONS OF THE MAGISTRATE DENYING CROSS-CLAIM DEFENDANT MCLAUGHLIN’S MOTION FOR RELIEF FROM FINAL JUDGMENT ATTENDANCE: Plaintiff X__ Attomey for XClaim-Plaintiff Defendant XX_ Attorneys for X-Claim-Defendant Xx Court Reporter ECR Clerk of Court This cause has come on to be heard before Magistrate David C. Friedman on June 20, 2019, pursuant to the Motion to Vacate Final Judgment (by Cross-Claim Defendant MCLAUGHLIN). The Magistrate has jurisdiction pursuant to the Florida Rules of Civil Procedure, 1.490, et seg. The Court finds that an Order of Referral for the matters heard by the Magistrate was served upon the parties and that no party made a timely objection FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 07/03/2019 02:23:39 PMto the referral.' This Court being otherwise fully advised, the following Findings of Fact and Conclusions of Law are made: FINDINGS OF FACT AND CONCLUSIONS OF LAW PROCEDURAL HISTORY 1. This action began as a commercial landlord-tenant dispute for eviction and damages. Defendant Delsing has reached a stipulation with the Plaintiff and the main cause of action has been dismissed. 2. The Cross-Claim Defendant McLaughlin has filed the Motion for Relief from a Final Judgment with a supporting affidavit. The Judgment for damages in favor of Cross-Claim Plaintiff Delsing against McLaughlin was entered on April 23, 2019. A Default was entered against McLaughlin by the Circuit Court Judge on November 26, 2018. 3. Plaintiff's complaint was served upon Defendant McLaughlin at 1376 Chesapeake Avenue in Naples on August 7, 2018. 4. On August 23, 2018, Defendant Delsing responded to the Plaintiff's Complaint and sued McLaughlin in a Cross-Claim. 5. On September 7, 2018, McLaughlin as the Cross-Claim Defendant signed an Acceptance of Service and Waiver of Service of Process, which was filed on the same day. 6. On November 20, 2018, Delsing filed a Motion for Judicial Default against McLaughlin alleging he failed to file any papers and had accepted service. The certificate of service reflects a copy was mailed to McLaughlin at the address where he was served initial process. The Order was submitted to Judge Lauren L. Brodie and was signed and filed on November 26, 2018 and McLaughlin was included on the certificate of service on the Order Granting Motion for Judicial Default. ' At the hearing, Delsing did not voice any objection to the Magistrate’s jurisdiction, although he had filed an Objection on May 17%.10. 11. 12. 13. 14. On February 20, 2019, Delsing filed a Motion for Final Judgment after Default against McLaughlin. A copy was mailed to McLaughlin at the address where he was served initial process. On March 20, 2019, Delsing filed and served McLaughlin at that same address with the Notice of Hearing on the Motion. McLaughlin was listed again in the certificate of service. The hearing was conducted on March 28, 2019, with no appearance by McLaughlin and this Court recommended the granting of Delsing’s Motion. The Order Adopting the Recommendations and entering the Final Judgment against McLaughlin was signed and filed on April 23, 2019. Both the Recommended Order and the Order Adopting were copied to both counsel for Delsing and to McLaughlin. On May 2, 2019, counsel for McLaughlin filed a Notice of Appearance with the subject Motion and attachments. On May 3" McLaughlin’s Affidavit in support of the Motion was filed. On May 15, 2019, McLaughlin served and filed the Notice of Hearing on the Motion. On May 24, 2019, Delsing filed a Response to the Motion for Relief from Final Judgment. On June 5, 2019 McLaughlin filed an Answer with Affirmative Defenses to Delsing’s Cross-Claim. A request for leave of court is not apparent from the court file. At the hearing the Court heard legal argument from counsel for the parties, reviewed the exhibits admitted into evidence, the Affidavits presented by each party, and heard the testimony of McLaughlin, who was called to the stand by Delsing.2 FACTUAL ALLEGATIONS IN MOTION AND MCLAUGHLIN’S AFFIDAVIT 15. McLaughlin’s Motion alleges that after service of the Plaintiffs Complaint he received an email from the attomey for Delsing and he attached it to his 2 The testimony of attorney Peck Ralston, one of the attorneys for Delsing, was offered, but when counsel for Delsing represented to the Court that nothing clearly significant beyond the averments in her Affidavit (filed with the May 24" Response) would be included, the Court declined to hear her testimony. 3Affidavit. The email asked him to accept service of Delsing’s Answer, Affirmative Defenses and Crossclaim and that it attached a copy of same. He asserts that the pleading was and the form for Acceptance and Waiver of Service of Process were attached, but he did not receive any explanation that he was being sued and no warning that he there could be consequences if he did not timely file a response at the courthouse. He infers that he did know Delsing was suing him. The emails exchanged between McLaughlin and counsel for Delsing attached to Delsing’s Response paint a clearer picture of Mclaughlin’s understanding that he fully understood he was being sued in Delsing’s Crossclaim. And of course the summons he received on the Plaintiff’s claim made him fully aware that if he filed no papers within twenty days of service a default could be entered. 16. He alleges in his affidavit he did not receive anything by Certified mail. This is true, but its’ legal significance is questionable, as the Court’s analysis will demonstrate. 17. He asserts that the notice of hearing on the Motion for Final Judgment (admitted as Exhibit C) was received but since it wasn’t directed specifically to him, he didn’t understand he needed to attend. His name is on the casestyle on the notice of hearing and in the certificate of service, and he was the only party being sued by Delsing. The matter noticed for hearing was “Crossclaim- Plaintiff's Motion for Final Crossclaim Judgment After Default.” 18. After the Judgment was entered McLaughlin states that since he was not a party to the mediation agreement which he was accused of breaching and that since he was only an agent for Mr. Jack Newby who signed the mediation agreement, he should not be sued for breach. The Crossclaim specifically alleged that Newby was a realtor and at the mediation session was an agent acting on behalf of McLaughlin. FACTUAL ALLEGATIONS IN DELSING’S ATTORNEY’S AFFIDAVIT 19. The affidavit of attorney Ralston Peck includes some significant allegations and reference copies of emails and other communications between McLaughlin and the attorney. The emails are in evidence (Exh. B). 420. Attorney Ralston Peck’s communication with McLaughlin began on or about August 31° in a phone call and in a follow up email. 21.In a September 4 email to McLaughlin he was sent a copy of Delsing’s Answer, Affirmative Defenses and Crossclaim against McLaughlin. Included was a copy of the Acceptance and Waiver of Service with a request that he consider signing and returning. His response was an effort to negotiate an amicable resolution with Delsing through Delsing’s attorney. The attorney’s response indicated a willingness to pass along to Delsing the content of Mclaughlin’s email and also informed McLaughlin that if he declined to accept and waive personal service he would be served. 22. In an email on September 5 McLaughlin said he would sign the Acceptance and Waiver of Service. 23. Emails in October between McLaughlin and counsel for Delsing describe some attempts at finding a tenant for the property. 24. A series of emails on November 27 between McLaughlin and attorney Ralston Peck reveal that McLaughlin knew that Delsing was seeking to have McLaughlin defaulted for not responding to the Crossclaim. McLaughlin learned from Delsing’s attorney that Delsing was asking to be held harmless by McLaughlin on claims in the action. McLaughlin responded asking that the effort to have him defaulted be abandoned if he indemnified Delsing. 25. Attorney Ralston Peck’s affidavit also reiterates that McLaughlin was served copies of the Motion for Judicial Default, the Motion for Final Crossclaim Judgment, the Affidavit in support, and a copy of the Notice of Hearing on the Motion. ANALYSIS OF LEGAL ARGUMENTS IN MCLAUGHLIN’S MOTION AND IN DELSING’S RESPONSE 26. McLaughlin’s Motion asserts that the Final Judgment is void for lack of jurisdiction over him because no process was ever issued and served upon him. The execution and filing of the Acceptance and Waiver of Service excuse the absence of any summons having been issued. No process need be27. 28. 29. 30. issued by a Clerk of Court if a party accepts and waived service. This argument is rejected. The Motion for Relief From Judgment argues that service of process was defective be asserting that the waiver did not comply with Rule 1.070(3) of the Florida Rules of Civil Procedure governing waivers of service. Six different subparts are listed in the Rule and there is no dispute that some of the subparts were absent in this case. The Motion cites a case for the proposition that the requirements of the Rule must be strictly enforced. The quoted proposition in applicable here. In that case, Griffith v. Slade, 95 So.3d 982 (Fla. App. 2"! DCA 1012), no process was issued or served upon the successful appellant and, unlike here, no acceptance and waiver of process was issued. A Notice of Hearing is what brought appellant into the trial court proceedings from which the appeal was taken. Since neither process was served nor waived, appellant succeeded in obtaining reversal of the trial court’s decision below. In Griffith there was a want of service and no involvement in the proceedings at all, unlike the facts established in this case. McLaughlin next asserts, alternatively to the arguments regarding service, that he has met the three prongs to set aside a default judgment. While the Court finds from his proposed Answer and Affirmative Defenses to Delsing’s Crossclaim presents meritorious defenses, the arguments that the two other prongs have been met is considerably weaker. The evidence presented by the emails in evidence, the procedural history, the legal authorities presented, and the testimony of McLaughlin at the hearing all lead to the conclusion that excusable neglect and due diligence are absent. McLaughlin, a realtor, understood that a written response to a lawsuit was required as provided in the summons he received with initial process. McLaughlin testified he had insufficient funds to retain an attorney and that is why he did not respond to either the Plaintiff's complaint or to Delsing’s Crossclaim. The length of time between the entry of the Default (November 26, 2018) and the filing of the Motion for Relief From Judgment (May 2, 2019) is 157 days.31. 32. 33. The Court was not cited to and has not found any legal authority which suggests it is within the trial court’s discretion to find due diligence with such a delay. The assertion that McLaughlin established excusable neglect is rejected. McLaughlin was not misled by anyone and he delayed because of his financial circumstances. The Court has reviewed all the legally significant documents which were served upon him. The absence of McLaughlin’s name at the top of the Notice of Hearing on Delsing’s Motion for Final Judgment on the Crossclaim is without legal significance where he had knowledge of all the proceedings and actual notice of the hearing (per his testimony). A failure to understand the legal consequences one’s inaction or to retain counsel does not constitute excusable neglect. Joe-Lin, Inc. v. LRG Rest. Grp., Inc., 696 So.2d 539, 541 (Fla. App. 5 DCA 1997). McLaughlin never asserted on the witness stand that he delayed because of mistake, inadvertence or surprise. It was because he claimed to not have money for an attorney, and that is not excusable neglect. McLaughlin had actual notice of the proceedings and the Court had personal jurisdiction over him over the valid Acceptance and Waiver of Service. The Final Judgment is not void. It is voidable and is not subject to being vacated where there is insufficient evidence to establish due diligence and excusable neglect. The Response filed by Delsing cites to legal authority standing for the proposition that where defects in service are overcome by actual notice of proceedings and the absence of timely action by the aggrieved party, the trial court does not commit error in denying a motion to vacate a default or a default judgment. Where notice is adequate, defects in process or service of process are waived if not timely raised. Palais v. Wang, 632 So.2d 1132, 1135 (Fla. App. 4° DCA 1994). The defendant in Palais failed to demonstrate excusable neglect after being personally served, receiving notices, not appearing at trial, and then moving to set aside the default 100 days later.34. In Chernoff Diamond & Co., Inc. v. Gallin Assoc., Inc., 258 So.3d 563 (Fla. App. 24 DCA 2018), the trial court set aside a default judgment but was reversed. Gallin’s presidint was served and knew he had to respond, but he put it away, forgot about it, and did not act until after Final Judgment had been entered. He did not establish excusable neglect. Being neglectful of one’s own legal affairs is insufficient and here McLaughlin’s neglect was not excusable but intentional. 35. In Redmond v. First Guaranty Mortgage Corp, 268 So.3d 918 (Fla. App. 5" DCA 2019), the trial court’s denial of a motion to vacate a clerk’s default was upheld on appeal where appellant waited almost seven months from the time the default was mailed to him before moving to vacate the default and for relief from final judgment. As here, a lack of due diligence will not entitle the movant to relief from their own inaction. 36. Although the trial court is given broad discretion to grant relief from defaults and default judgment in accord with the public policy considerations favoring resolution of disputes on their merits, such discretion has its limits. To grant relief here would clearly exceed those limits. 37. The Court is compelled to deny the requested relief. RECOMMENDED ORDER OF THE MAGISTRATE Based upon the above-stated Findings of Fact and Conclusions of Law, the Magistrate submits the following Recommended Order for the approval of the Court: A. The Court DENIES McLaughlin’s Motion for Relief from Final Judgment. PLEASE READ CAREFULLY (Language in Bold is Required by Fla. R. Civ. P. 1.490): IF YOU WISH TO SEEK REVIEW OF THE REPORT AND RECOMMENDATIONS MADE BY THE MAGISTRATE, YOU MUST FILE EXCEPTIONS IN ACCORDANCE WITH FLORIDA RULE OF CIVIL PROCEDURE 1.490(i). YOU WILL BE REQUIRED TO PROVIDE THE COURT WITH A RECORD SUFFICIENT TO SUPPORT YOUR EXCEPTIONS ORYOUR EXCEPTIONS WILL BE DENIED. A RECORD ORDINARILY INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCEEDINGS. THE PERSON SEEKING REVIEW MUST HAVE THE TRANSCRIPT PREPARED IF NECESSARY FOR THE COURT'S REVIEW. The hearing before the Magistrate was electronically recorded by the Court. A party may request an electronic certified copy of the proceeding on CD, at that party’s expense, and may then have the recording transcribed, at that party’s expense. Providing the Court with a copy of the CD, instead of a certified written transcript, is insufficient for review by the Court of exceptions. Media request forms, procedures, and fees, and a list of approved Transcriptionists are available on the Court’s website, www.ca.cjis20.org , or by calling the Court’s Electronic Court Reporting Department at 239-533-8207. However, if the below box is checked, one of the parties elected to retain, at that party’s own expense, a live Court Reporter who was present for the purpose of creating the official record of the proceeding. Accordingly, any request for a transcript of the proceeding must be submitted to that Court Reporter. O A live Court Reporter created the official record of the proceeding, and that Court Reporter’s name and address is as follows: none All parties have not waived the ten day period in which to file exceptions to the Report and Recommendations of the General Magistrate. et Dated: July 3°, 2019. BY: Honorable David C. Friedman Magistrate, Twentieth Judicial Circuit ce: by clerk’s e-service upon all attorneys of record