This week Bernhard Law Firm won the challenge to a $4M judgment that Bernhard Law Firm had obtained in 2020 in Miami’s Complex Business Litigation Division of Circuit Court. The case arose from a construction fraud in the redevelopment of a Miami Beach midrise condominium building. See case number 2018-28145 CA. If you have any questions about civil litigation and construction fraud in Miami, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

As alleged in the filings, Defendants out of Luxembourg, Egypt, and California stole and squandered millions from the Belgium-based Plaintiff in a false scheme to completely renovate a mid-rise condominium building in Miami Beach. The Court found in summary judgment that the Defendants left the building “entirely gutted and in a state of demolition only” after years of representing it was on the brink of completion with certificate of occupancy. 

The California-based Defendant was the only defendant who did not actively participate in the lawsuit, despite repeated service of process, confirmed notices of this lawsuit from multiple sources, and years of opportunity to be heard—all of which the California Defendant knowingly and intentionally squandered to evade this case.

After Bernhard Law Firm’s judgment had frozen the Defendant’s assets in California, the Defendant first filed a general appearance, with a later unverified and time-barred motion to vacate, all more than a year after the Court entered its order of judicial default.

As argued by Bernhard Law Firm, the California Defendant had failed to prove by clear and convincing evidence that service of process was invalid and instead had confirmed his notices and opportunities to be heard throughout this case. In a last-ditch effort to avoid responsibility, the California Defendant and his sister committed perjury to attempt to escape the long-standing orders against the California Defendant. Significant investigation and testimony of numerous process servers showed the falsity of the California Defendant allegations and testimony.

The legal standard in Florida is that 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, (Fla. 4th DCA 1992) (same). 

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, 784–85 (Fla. 2d DCA 1967) (holding substantial compliance with service statute was sufficient to defeat motion to quash, despite inability to file return receipt).

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).

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 the 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).

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 s. 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).

For example, six-week stay at a location is long enough to be properly regarded as their residence, and make the recipient “a person residing therein” under Florida Statutes s. 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). 

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).

Here, the Circuit Court conducted an evidentiary hearing and then adopted Bernhard Law Firm’s argument. The Court found that the California Defendant had repeated due process notice and opportunity to be heard from multiple sources, which he intentionally squandered in a bad faith attempt to evade this lawsuit. The motion to vacate the order of judicial default became time-barred on November 19, 2020, under the allegations of defective but not total lack of service attempts. The Court had to deny the motion to vacate because it was not verified upon filing and remained unverified with the California Defendant’s contradictory testimony.

If you have any questions about civil litigation and construction fraud in Miami, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.