Seymour v. Panchita Inv., Inc., 3D09-1558.

• Decision Date: 24 February 2010
• Docket Number: No. 3D09-1558.,3D09-1558.
• Parties: Katie K. SEYMOUR as mother and next friend of Marquese Williams, a minor, Appellant, v. PANCHITA INVESTMENT, INC., Appellee.
• Court: Florida District Court of Appeals

28 So.3d 194

Katie K. SEYMOUR as mother and next friend of Marquese Williams, a minor, Appellant, v. PANCHITA INVESTMENT, INC., Appellee.

No. 3D09-1558.

District Court of Appeal of Florida, Third District.

February 24, 2010.

Jorge A. Duarte, South Miami, for appellant.

Juan C. Zorrilla; John Phillips, Jr., for appellee.

Before WELLS, CORTIÑAS, and SALTER, JJ.

SALTER, J.

Katie Seymour, on behalf of her minor child, appeals a circuit court order setting aside a final judgment awarding her money damages. The child was allegedly injured while she and her mother occupied a rental apartment owned and maintained by the appellee, Panchita Investment, Inc. The final judgment below was based on Panchita's failure to file any pleading or paper, a default entered by the court, and a trial by jury (in which Panchita did not participate) on damages. The judgment was set aside by the trial court upon later motion by Panchita because "both the summons and the verified return of service were defective and legally ineffectual to serve Panchita Investment, Inc. with process."

We are compelled to affirm despite our complete agreement with the appellant that this corporate defendant surely must have known that it was being sued by Ms. Seymour. We remand the case for further proceedings on the merits based on Ms. Seymour's amended return of service dated May 11, 2009.¹

The original summons in this single-defendant case against Panchita stated that it was to be served on:

                                      Jorge Ramos
                                  14024 NW 82 Avenue
                             Miami Lakes, Florida 33016
                

The summons and complaint were served on Mr. Ramos two days after the complaint was filed. Five days later, the process server filed an original return of service stating under oath that the process server "individually served the within named person," Ramos individually. The return of service, like the summons itself, did not identify any corporate position or capacity in which Ramos was served.

It is undisputed that Mr. Ramos is, and always has been, Panchita's registered agent and sole officer and director, and that the address shown on the summons is Panchita's principal place of business, its mailing address, and its registered agent's and sole officer/director's address. The caption for the lawsuit on the summons and complaint, and the allegations within the complaint, disclosed that Panchita, not Ramos, was the defendant. The issue is whether these facts cure the threshold deficiency in the summons and return of service regarding the identity of the defendant being served and the corporate capacity of that person.

A summons properly issued and served is the method by which a court acquires jurisdiction over a defendant. A rather straightforward group of rules and statutes² sets out bright-line, well-tested procedures for preparation and service of the summons with the complaint. Despite those clear-cut provisions and procedures (and because lawyers and process servers are as fallible as any other group), the rules are occasionally disregarded, twisted, or tested.

In this case, the summons and return of service erroneously identified Jorge Ramos personally as the individual being served. The summons and return of service did not state that the corporation (appellee, Panchita Investment, Inc.) was served, or that Ramos was only being served as a registered agent or corporate officer of a corporation. Most defendants receiving initial legal papers are not lawyers, and the persons who are to supervise the preparation and filing of those papers are ordinarily licensed to practice law. A non-lawyer receiving the summons and complaint in the record here might reasonably conclude that he or she was served erroneously. If the intention was to sue Jorge Ramos individually, the complaint fails to state that and Ramos could safely disregard the papers. If the intention was to sue Panchita, the summons fails to state that and Panchita could assume that the plaintiffs failed to specify which "person," the individual or the corporation, they intended to sue. In this case, Panchita filed no pleading or paper in the case until it moved to vacate the final judgment after default, so no waiver argument can succeed.

The case law has distinguished "void" service, which fails to confer jurisdiction over the defendant, from "irregular" service, which is voidable and "close enough" to obligate the recipient to respond (via a timely motion to quash service). Ms. Seymour's initial attempt at service falls into the first category, a "void" attempt at service on a corporate defendant.

For example, Ms. Seymour cites State ex rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649, 652 (1936), for the distinction 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," arguing that in the present case Panchita did have notice of the proceedings against it. In State ex rel. Gore, however, the defendant was properly named in his "individual and representative capacity" in the summons; the issue was the timing of the service and the constitutionality of a "show cause" procedure for the enforcement of a mechanic's lien. 171 So. at 651. That case did not determine whether a summons identifying and served on the wrong "person" (an individual versus a corporation) is merely voidable rather than void.

In a nutshell, the question before us is whether an individual served with a summons naming him individually is charged with "notice" of (1) the contents of the complaint attached to the summons and (2) the current corporate information on file with the Division of Corporations regarding the individual's status as a registered agent or officer with a corporation identified in the complaint. Turning to the more recent cases on that point, there are distinguishable because they involved subsequently-amended, inapplicable corporate service provisions specifying the order in which a process server was to attempt service. In Craven v. J.M. Fields, Inc., 226 So.2d 407 (Fla. 4th DCA 1969), for example, the then-applicable statute required the process server to establish the absence of the corporate directors before the complaint could be served on a manager at the place of business. The district court of appeal classified the service in that case as "irregular" and "voidable" rather than "void." But in that case, there was no doubt that the corporation was the "person" being served; both the summons and the return of service stated that "J.M. Fields, Inc.," the corporate defendant, was the entity being served.

In Borden v. East-European Ins. Co., 921 So.2d 587, 591 (Fla.2006), the court states that service of process is merely a "means of notifying a party of a legal claim." That phrase, however, is followed by a reaffirmation of case law establishing that the service of process must give notice "to the defendant in the case that he is answerable to the claim of plaintiff." Id. (emphasis supplied). Ramos was not a defendant in Ms. Seymour's case.

Similarly, this Court's decision in American Hospital of Miami, Inc. v. Nateman, 498 So.2d 444, 445 (Fla. 3d DCA 1986), employed a broad definition of "notice" regarding a summons. In that case, John Mudd was served "as Resident Agent for American Hospital of Miami, Inc.," and the "complaint that accompanied the summons named American, not John Mudd, as the defendant." Id. This Court properly rejected "this hypertechnical defect in the summons" because of well-settled law that "service on a resident agent or on the head of a corporation as resident agent or as head of a corporation is service on the corporation." Id. (emphasis supplied). In the present case, however, Ramos was served as Ramos, not "as resident agent" or as an officer of the corporate defendant, Panchita.

Finally, Cannella v. Auto-Owners Ins. Co., 801 So.2d 94 (Fla.2001), does not require a different result here. The issue in that case was whether service of process on Monica Mock as registered agent³ of a dissolved corporation (Mock Plumbing, Inc.) would suffice in view of a specific statute requiring service on a dissolved corporation to be made "on one or more directors of the corporation as trustee." 801 So.2d at 96. The strange circumstance in that case was that the corporate records did not include the identification of any director; Ms. Mock had been listed as president and registered agent, and no other person was identified in any capacity for the corporation before or after dissolution. Our Supreme Court's analysis, though unquestionably correct and just, has no bearing on the facts of the case presently before us:

The purported "no director/no service" theory advanced by Auto-Owners attempts to thrust Mock [the dissolved corporation] into a veritable "unservable" limbo status after Mock inflicted injuries on a Florida citizen. This position is not supported by the corporate documents filed with the State of Florida, nor is it consistent with logic, common sense, or Florida's scheme for corporate operation. A corporation is required to have a director and, if not, director responsibilities are placed on those performing director functions. See § 607.0801, Fla. Stat. (1991); In re Holiday Isles, Ltd., 29 B.R. 827, 829 (Bankr.S.D.Fla.1983) (recognizing that a person exercising the duties of a director of a...