Chaim Joseph Bialostozky A/K/A Joseph Bialostozky A/K/A Yoseph Bialostozky v. GAHC3 Mount Dora FL MOB II, LLC
5D2024-0613
Fla. Dist. Ct. App.Nov 22, 2024Background
- Appellee (GAHC3 Mount Dora FL MOB II, LLC) sued Appellant (Chaim Joseph Bialostozky) in two separate actions and had him personally served at his home address per the return of service.
- Appellant did not respond to the complaints; defaults were entered against him by the clerk of court.
- Approximately ten months later, Appellant moved to quash service of process, arguing he was not home when served, and also moved to vacate the defaults.
- At an evidentiary hearing, the process server testified she personally served Appellant. Appellant and his witnesses provided conflicting evidence, which the court found less credible.
- The trial court denied the motion to quash service of process and denied the motion to vacate defaults. Appellant appealed both rulings; only the motion to quash was within the appellate court’s jurisdiction.
Issues
| Issue | Appellant's Argument | Appellee's Argument | Held |
|---|---|---|---|
| Validity of service of process | Service was not accomplished—he was not present at address | Service was valid, as evidenced by credible process server | Affirmed–service valid |
| Weight of evidence at evidentiary hearing | Witnesses showed Appellant not home at service times | Process server’s testimony and signed returns more credible | Affirmed–defer to trial court |
| Need for transcript for appellate review | Error apparent from the face of record; transcript not needed | Transcript essential for review of factual findings per Applegate | Affirmed–no transcript, presumption of correctness |
| Appellate jurisdiction over denial of motion to vacate default | Order appealable as nonfinal order | Not appealable under Rule 9.130 | Dismissed for lack of jurisdiction |
Key Cases Cited
- Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979) (presumption of correctness and necessity for a transcript to review factual findings)
- Griffin Indus., LLC v. Dixie Southland Corp., 162 So. 3d 1062 (Fla. 4th DCA 2015) (not the appellate court's role to reweigh evidence or substitute its judgment)
- Dawkins, Inc. v. Huff, 836 So. 2d 1062 (Fla. 5th DCA 2003) (nonfinal order denying motion to set aside clerk's default is not appealable)