When Imperfect Service of Process Is Good Enough in Florida

The late defaulted defendant can create significant frustration for a plaintiff and the Court. A plaintiff files a lawsuit, serves the summons at an apparently good address and recipient, but the defendant never makes an appearance in the lawsuit. The Clerk of Courts or judge enters a default, and eventually a default judgment. Substantial time elapses, sometimes over a year. Then the defendant appears, alleging that the original service was no good and asking the Court to start the lawsuit over from the beginning. This article looks at when even imperfect service should be good enough in Florida. If you have questions on service of process, motions to quash service, or motions to vacate default or default judgment, please contact Bernhard Law Firm at abernhard@bernhardlawfirm.com, 786-871-3349, www.bernhardlawfirm.com. Please keep reading below:

The Basic Legal Standard for Service of Process in Florida

Florida Statutes § 48.031(1) provides that service of process can be made by leaving copies of summons at a defendant’s usual place of abode with any person residing therein who is 15 years of age or older. § 48.031(1), Fla. Stat. (2019). Under Florida Statutes § 48.031(1)(a), the term “usual place of abode” means the place where the defendant is actually living at the time of service. Shurman v. Atlantic Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001).

A six-week stay at a location is long enough to be properly regarded as a defendant’s residence, and make the recipient “a person residing therein” under Florida Statutes § 48.031(1). Magazine v. Bedoya, 475 So. 2d 1035, 1035 (Fla. 3d DCA 1985) (affirming order denying motion to vacate where defendant failed to show by clear and convincing evidence that service was defective); Sangmeister v. McElnea, 278 So. 2d 675, 676 (Fla. 3d DCA 1973) (four-month visit establishes residing therein requirement). 

A plaintiff need only substantially comply with service statutes to acquire personal jurisdiction and overcome a motion to quash service or vacate an order on service of process. Fernandez v. Chamberlain, 201 So. 2d 781, 78485 (Fla. 2d DCA 1967) (holding substantial compliance with service statute was sufficient to defeat motion to quash, despite inability to file return receipt).

A process server’s affidavit alone is sufficient to support a finding of valid service, and creates a presumption of effective service of process. Magazine v. Bedoya, 475 So. 2d 1035, 1035 (Fla. 3d DCA 1985) (affirming order denying motion to vacate where defendant failed to show by clear and convincing evidence that service was defective); Buttigieg v. Prunetti, 610 So. 2d 667, 667 (Fla. 4th DCA 1992) (same). 

Where there is sufficient evidence from which it might be reasonably found that service of summons was sufficient, the Court may deny a motion to vacate service of process, notwithstanding that the return of service has technical variances or does not address every aspect of proper service. Pentecostal Holiness Church, Inc. v. Mauney, 220 So. 2d 25, 26 (Fla. 4th DCA 1969).

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Elisabeth, Kurfürstin von Brandenburg, nimmt heimlich das heilige Abendmahl in beiderlei Gestalt. Holzstich nach einem Gemälde von Adolph Treidler (1846–1905), erschienen in: Zeitschrift für bildende Kunst 9 (1874).

A defendant challenging service of process must prove invalidity of the service by clear and convincing evidence, and failure to do so will have the service of process stand as effective. Conde v. Professional Mediquip of Fla., Inc., 436 So. 2d 322, 323–24 (Fla. 4th DCA 1983) (holding that where defendant admits to having notice of lawsuit, and has not by clear and convincing evidence demonstrated the invalidity of the service, the service will stand as effective); Travelers Ins. Co. v. Davis, 371 So. 2d 702, 703 (Fla. 3d DCA 1979) (defendant must prove the invalidity of service of process by clear and convincing evidence).

Where defendant does not provide clear and convincing record evidence to overturn presumption of valid service, the Court cannot grant a motion to vacate. Magazine v. Bedoya, 475 So. 2d 1035, 1035 (Fla. 3d DCA 1985) (affirming order denying motion to vacate where defendant failed to show by clear and convincing evidence that service was defective); Wadkin Ltd. v. Platt, 545 So. 2d 314, 314 (Fla. 4th DCA 1989) (affirming order denying motion to quash service of process, where defendant failed to provide clear and convincing evidence to overturn presumption of effective service of process).

Imperfect Service That Provides Due Process Notice and Opportunity to Be Heard May Be Enough, Particularly if a Defendant Knows of the Service Attempt and Intentionally Squanders Opportunities to Appear

The purpose of service of process is to provide the defendant due process notice and opportunity to be heard. The Third District Court of Appeal has plainly stated:

The purpose of service of process is to give a defendant proper notice that it is answerable to a plaintiff’s claim, to advise the defendant of the nature of that claim, and to afford the defendant an opportunity to defend against it. 

Am. Hosp. of Miami, Inc. v. Nateman, 498 So. 2d 444, 445 (Fla. 3d DCA 1986) (affirming denial of motion to vacate despite defect in summons, where defendant received notice and opportunity to be heard); Travelers Ins. Co. v. Davis, 371 So. 2d 702, 703 (Fla. 3d DCA 1979) (holding object of service of process is to give defendant notice that legal proceeding has been instituted, and opportunity to defend against it); Shurman v. Atlantic Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001) (“the purpose of this jurisdictional scheme is to give the person affected notice of the proceedings and an opportunity to defend his rights.”); Cruz v. Citimortgage, Inc., 197 So. 3d 1185, 1189 (Fla. 4th DCA 2016) (“It is well-settled that the fundamental purpose of the service of process statute ‘is to give the person affected notice of the proceedings and an opportunity to defend his rights.’”) (citing Shurman).

As the Kozinski v. Phillips court discussed:

Further, cases addressing insufficient service of process have emphasized that a defendant may not ‘simply ignore the process, sit idly by, let default be entered against it,’ and then successfully move to set aside the judgment more than a year after it is rendered. Craven v. J.M. Fields, Inc., 226 So. 2d 407, 410 (Fla. 4th DCA 1969). Instead, ‘a party complaining of an irregular service or return is required to move diligently to effectuate those remedies available to the party by our rules of civil procedure lest the party suffer the consequences.’ Id.

Kathleen G. Kozinski, P.A. v. Phillips, 126 So. 3d 1264, 1268 (Fla. 4th DCA 2013) (emphasis added).

Likewise, a defendant and his family cannot make deliberate attempts to avoid the presence of a process server and service of process. Palamara at 194–95; Haney at  670–71; Olin Corp. at 673–74; Liberman at 63; Dowd Shipping at 1252; Wendel at *4; Kennedy at *3; Reinhard at 313.

Where defendants have notice and an opportunity to be heard prior to entry of a default order or default judgment, the Court property denies their later motion to vacate and the Third District Court of Appeal should affirm. Estrada v. Estrada, 274 So. 3d 426, 430 (Fla. 3d DCA 2019) (holding son and daughter-in-law had notice of action by father, and thus due process rights were preserved and default order entered after they filed appearance and answer to complaint was not void).

Additionally, irregularities or technical variances in service of process, summons, and return of service which do not result in prejudice to defendant do not serve to invalidate service. Am. Hosp. of Miami, Inc. v. Nateman, 498 So. 2d 444, 445–46 (Fla. 3d DCA 1986) (affirming denial of motion to vacate despite defect in summons, where defendant received notice and opportunity to be heard); Buttigieg v. Prunetti, 610 So. 2d 667, 669–70 (Fla. 4th DCA 1992) (“Irregularities in a writ or other process, where they do not prejudice a defendant, will not invalidate the service.”).

Hyper-technical defects in summonses or returns of service do not require the Court to quash service, where the defendant did have notice and opportunity to be heard. Am. Hosp. of Miami, Inc. v. Nateman, 498 So. 2d 444, 445–46 (Fla. 3d DCA 1986) (affirming denial of motion to vacate despite defect in summons, where defendant received notice and opportunity to be heard).

Where the purpose of service of process—i.e., to give a defendant notice that he is answerable to a plaintiff’s claim, to advise him of the nature of that claim and to afford the defendant an opportunity to defend against it—is served, a technically defective service of process may still stand and the Court may deny a motion to vacate thereon. Buttigieg v. Prunetti, 610 So. 2d 667, 669–70 (Fla. 4th DCA 1992) (“Irregularities in a writ or other process, where they do not prejudice a defendant, will not invalidate the service.”); Conde v. Professional Mediquip of Fla., Inc., 436 So. 2d 322, 323–24 (Fla. 4th DCA 1983) (holding that where defendant admits to having notice of lawsuit, and has not by clear and convincing evidence demonstrated the invalidity of the service, the service will stand as effective).

Thus, imperfect service that provides due process notice and opportunity to be heard may be enough to deny a defendant’s challenge to service of process, even if the service was not perfect. The Court may lose sympathy for a defendant and have the above legal grounds to deny a motion to quash or vacate, if a defendant knows of the service attempts and intentionally squanders his or her opportunities to appear and timely address the lawsuit or service.

Placing Papers at the Door May Be Sufficient if the Defendant Is Evading Service

Where a person to be served with process evades the presence of a process server in a deliberate attempt to avoid service of process, the delivery requirement may be satisfied if the process server leaves the papers at a place in which such person can easily retrieve them and takes reasonable steps to call such delivery to the attention of the person to be served. Palamara v. World Class Yachts, Inc., 824 So. 2d 194, 194–95 (Fla. 4th DCA 2002); Haney v. Olin Corp., 245 So. 2d 671, 670–71 (Fla. 4th DCA 1971); Olin Corp. v. Haney, 245 So. 2d 669, 673–74 (Fla. 4th DCA 1971); Liberman v. Commercial Nat’l Bank of Broward Cnty., 256 So. 2d 63 (Fla. 4th DCA 1971); Dowd Shipping, Inc. v. Lee, 354 So. 2d 1252 (Fla. 4th DCA 1978); see also Wendel v. Int’l Real Estate News, LLC, 2020WL5803510 at *4 (S.D. Fla. Aug. 10, 2020) (denying motion to vacate default where defendant failed to meet burden to present strong and convincing evidence that she had not evaded service); Kennedy v. Grova, 2012WL1368139 at *3 (S.D. Fla. April 19, 2012); U.S. S.E.C. v. Reinhard, 352 Fed. App’x 309, 313 (11th Cir. 2009).

Thus, placing summons at the door of a defendant at his or her usual place of abode may be sufficient, particularly where there has been identification of persons in side. This is particularly so where the defendant is evading service, and the defendant or other residents are refusing to respond to good faith attempts at the usual place of abode. 

The Court Must Distinguish Between “Defective” Service and “Total Lack” of Service Before Addressing a Motion to Vacate Default or Motion to Vacate Default Judgment

The Court must differentiate between “defective” service and “total lack” of service. Kathleen G. Kozinski, P.A. v. Phillips, 126 So. 3d 1264, 1268 (Fla. 4th DCA 2013). Total lack of service renders a judgment void, while defective service renders a judgment voidableKathleen G. Kozinski, P.A. v. Phillips, 126 So. 3d 1264, 1268 (Fla. 4th DCA 2013).

As the Florida Supreme Court and several appellate courts thereafter have explained:

A distinction is to be noted between a total want of service where the defendant received no notice at all, and a service which is irregular or defective but actually gives the defendant notice of the proceedings against him. The former confers no jurisdiction of the person by the court, but the latter or defective service of process, on the contrary, confers jurisdiction upon the court of the person summoned so that the judgment based upon it is voidable only and not void and cannot be collaterally attached.

Kathleen G. Kozinski, P.A. v. Phillips, 126 So. 3d 1264, 1268 (Fla. 4th DCA 2013) (quoting Decker v. Kaplus, 763 So. 2d 1229, 1230 (Fla. 5th DCA 2000) (quoting State ex rel. Gore v. Chillingworth, 126 Fla. 645, 652 (Fla. 1936))). 

Under such circumstances, a defendant has only one year to move to vacate a particular order, under Florida Rule of Civil Procedure 1.540(b). Id. As the Kozinski court discussed:

‘It is only where service is so defective as to amount to no notice that a judgment is void, because then there is a denial of due process. Where notice is adequate, defects in process or service of process are waived if not timely raised.’ Peleais v. Wang, 632 So. 2d 1132, 1135 (Fla. 4th DCA 1994). . . .

Further, cases addressing insufficient service of process have emphasized that a defendant may not ‘simply ignore the process, sit idly by, let default be entered against it,’ and then successfully move to set aside the judgment more than a year after it is rendered. Craven v. J.M. Fields, Inc., 226 So. 2d 407, 410 (Fla. 4th DCA 1969). Instead, ‘a party complaining of an irregular service or return is required to move diligently to effectuate those remedies available to the party by our rules of civil procedure lest the party suffer the consequences.’ Id.

Id. at 1268.

In Kozinski, the appellate court found that the plaintiff “never served [the defendant] with process in compliance with the statutes,” but that the “defective attempts at service of process were sufficient to put [the defendant] on notice of the proceedings against her.” Kozinski at 1268. The Court held that:

Because the defective service was sufficient to put [defendant] on notice of the lawsuit against her, the one-year time limitation for voidable judgments applied and it was improper for the trial court to vacate [the order] almost two years after it was entered.

Kozinski at 1268.

Thus, in addressing a motion to vacate or quash, the Court must distinguish between “defective” service and “total lack of service.” If there is a total lack of service or service attempts, then the Court may run an analysis of the service as void without a time-bar. If the service is “defective” but there are acknowledged good faith attempts to provide notice and opportunity to be heard, then the Court may run an analysis of the service as voidable and apply a one-year timeb-bar to a defendant’s motion to vacate or quash.

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By Saf1zed – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=53590539

The Court Must Deny a Motion to Vacate That Is Not Verified

Florida law requires that a motion to set aside default final judgment be verified. Citibank, FSB v. PNC Mortg. Corp. of Am., Inc., 718 So. 2d 300 (Fla. 2d DCA 1998) (holding that the trial court properly denied a rule 1.540(b) motion that was unsupported by sworn evidence); Poly v. State, 517 So. 2d 122, 123 (Fla. 4th DCA 1987) (holding trial court correctly denied motion to vacate for which verification was insufficient); accord Blimpie Capital Venture, Inc., v. Palms Plaza Partners, Ltd., 636 So. 2d 838, 840 (Fla. 2d DCA 1994); Yu v. Weaver, 364 So. 2d 539, 540–41 (Fla. 4th DCA 1978). Failure to properly verify the motion to vacate requires that the Court deny it. Id.

A Defendant Waives Any Objection to Personal Jurisdiction by Failing to Challenge Jurisdiction at Appearance and Failing to Move to Quash at First Filing

A defendant waives the right to contest personal jurisdiction by making general appearance when he files a motion to vacate default judgment and failed to raise issue of in personam jurisdiction or challenge service of process. Buttigieg v. Prunetti, 610 So. 2d 667, 669–70 (Fla. 4th DCA 1992). By failing to object to personal jurisdiction in his first filing in which a plaintiff moves to vacate a default, a defendant waives the issue and a trial court properly denies a defendant’s motion to quash service of process filed thereafter. Consolidated Aluminum Corp. v. Weinroth, 422 So. 2d 330, 330 (Fla. 5th DCA 1982); see also Chestnut v. Nationstar Mortg. LLC, 255 So. 3d 397, 399 (Fla. 3d DCA 2018); Golden State Indus., Inc. v. Cueto, 883 So. 2d 817, 820–21 (Fla. 3d DCA 2004); Astra v. Colt Indus. Operating Corp., 452 So. 2d 1031, 1032 (Fla. 4th DCA 1984); Miller v. Marriner, 403 So. 2d 472 (Fla. 5th DA 1981); Visioneering Concrete Constr. Co. v. Rodgers, 120 So. 2d 644 (Fla. 2d DCA 1960).

A Defendant’s Perjury Requires Sanctions, Including Denial and Striking of a Bad Faith Motion to Vacate

On the spectrum of conduct that is sanctionable, perjury is the most egregious conduct, because few acts strike more viciously against the integrity of the justice system than that of perjury. Empire World Towers, LLC v. CDR Creances, S.A.S., 89 So. 3d 1034, 1038 (Fla. 3d DCA 2012) (aff’ing sanction of judgment against party based on fraud on the court). Florida appellate courts readily affirm dismissal or striking of pleadings and motions against any party that engages in perjury, where it enters proceedings and is directly related to a party’s claim. Id

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For more authority on sanctions for perjury, see Willie-Koonce v. Miami Sunshine Transfer & Tours Corp., 233 So. 3d 1271, 1273 (Fla. 3d DCA 2017) (aff’ing dismissal of Plaintiff’s action as sanction for fraud on the court in lying under oath about the injuries she sustained); Obregon v. Rosana Corp., 232 So. 3d 1100, 1103 (Fla. 3d DCA 2017) (aff’ingdismissal of Plaintiff’s claim as sanction for fraud on the court in lying under oath about the extent and background of claimed damages); Cal v. Forward Air Solutions, Inc., 199 So. 3d 312, 314–15 (Fla. 3d DCA 2016) (aff’ing dismissal of Plaintiff’s complaint as sanction for giving false testimony directly related to her claims, despite stating it was simple lapse of memory); Williams v. Miami-Dade Cnty. Public Health Trust, 17 So. 3d 859, 859 (Fla. 3d DCA 2009) (aff’ingdismissal of Plaintiff’s complaint as sanction for non-disclosures, false statements, and omissions designed to interfere with the administration of justice); Faddis v. City of Homestead, 121 So. 3d 1134, 1134 (Fla. 3d DCA 2013) (aff’ingdismissal and striking of Plaintiff’s pleadings, for perjury on central and material issue); Babe Elias Builders Inc v. Pernick, 765 So. 2d 119, 120–21 (Fla. 3d DCA 2000) (aff’ing sanction of judgment against party who prepared fraudulent invoices, suborned perjury on the legitimacy of the fraudulent invoices, and falsely testified on them); Papadopoulos v. Cruise Ventures Three Corp., 974 So. 2d 418, 419–20 (Fla. 3d DCA 2007) (“[Plaintiff] has forfeited his right to seek redress for his claimed injuries based upon his material misrepresentations and omissions that go to the heart of his claims.”); Metropolitan Dade Cnty. v. Martinsen, 736 So. 2d 794, 794–95 (Fla. 3d DCA 1999) (remanding for dismissal of Plaintiff’s case because her “untruthful sworn statements,” and her “misrepresentations and omissions . . . went to the heart of her claim and subverted the integrity of the action.”); Mendez v. Blanco, 665 So. 2d 1149, 1150 (Fla. 3d DCA 1996) (holding that the trial court did not abuse its discretion in dismissing Plaintiff’s complaint where he “committed serious misconduct by repeatedly lying under oath during a deposition.”); O’Vahey v. Miller, 644 So. 2d 550, 551 (Fla. 3d DCA 1994) (holding that Plaintiff’s repeated lies in discovery, uncovered only by the “assiduous efforts of opposing counsel,” “constituted such serious misconduct” that dismissal of the case was required).

Thus, if the plaintiff can show that the defendant or the defendant’s witnesses have perjured themselves in a bad faith attempt to vacate a default or quash a service of process, the Court should deny the motion or strike it, along with other potential sanctions.

SUMMARY

In sum, there are various circumstances when even imperfect service should be good enough in Florida. If you have questions on service of process, motions to quash service, or motions to vacate default or default judgment, please contact Bernhard Law Firm at abernhard@bernhardlawfirm.com, 786-871-3349, www.bernhardlawfirm.com

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