Tid Serv. Inc. v. Dass
| Decision Date | 17 November 2010 |
| Docket Number | No. 2D09–5169.,2D09–5169. |
| Citation | 65 So.3d 1 |
| Parties | TID SERVICES, INC., Appellant,v.Tulsie DASS, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Catherine M. Taylor and Brian M. Mark of Brian Michael Mark, P.A., Kissimmee, for Appellant.Theodore W. Weeks IV of Ted W. Weeks IV, P.A., Lakeland, for Appellee.WALLACE, Judge.
TID Services, Inc., appeals the circuit court's order denying its motion to vacate for lack of jurisdiction a default final judgment in favor of Tulsie Dass. A sheriff's deputy served TID by leaving a copy of the summons and complaint with the owner of a United Parcel Service (UPS) store where TID maintained a private mailbox. In several annual reports filed with the Florida Department of State before the service of Mr. Dass's lawsuit, TID had provided the address of the private mailbox as the only address for its officers, directors, and registered agent, and as the address of its principal office and its mailing address. Nevertheless, substitute service on a corporation by serving the person in charge of a private mailbox is not authorized unless the only address for the person to be served, which is discoverable through the public records, is the private mailbox. Because Mr. Dass failed to establish that the only address discoverable through the public records for the corporation, its officers, directors, or registered agent was a private mailbox, we reverse the circuit court's order.
In August 2002, Tateram Dinanath incorporated TID as a Florida corporation. Mr. Dinanath named himself as the sole director and the registered agent for TID. The initial registered office of the corporation and the address given for Mr. Dinanath in the articles of incorporation was an address on Strihal Loop in Winter Garden, Florida. Mr. Dinanath resided at the Strihal Loop address with his wife, Indrani Manbahal. In 2003 and 2004, TID's annual reports filed with the Secretary of State continued to list Mr. Dinanath as the registered agent for the corporation. The 2003 and 2004 annual reports also indicated that Mr. Dinanath was the sole officer and director of the corporation. The only address shown for the corporation and for Mr. Dinanath was the Strihal Loop address.
In January 2005, TID established a private mailbox account, number 211, at a UPS store located on West Colonial Drive in Winter Garden. In TID's annual report for 2005, Mr. Dinanath changed his address as registered agent, president, and director of the corporation from the Strihal Loop address to the West Colonial Drive address. Afterward, from 2006 through 2008, the only address shown on TID's annual reports for the corporation and for Mr. Dinanath was the West Colonial Drive address. In 2007, TID's annual report added Ms. Manbahal as a corporate officer. Like her husband, Mr. Dinanath, the only address shown for Ms. Manbahal was the West Colonial Drive address.
Tulsie Dass, who resides in New Jersey, is Ms. Manbahal's brother and the brother-in-law of Mr. Dinanath. In January 2006, TID and Mr. Dass jointly acquired title to a citrus grove (or groves) in Polk County. The grove property consists of approximately seventy-seven acres, together with improvements related to grove maintenance. The only address listed on the deed to the property for both TID and Mr. Dass is the West Colonial Drive address.
On July 17, 2008, approximately two and one-half years after the parties acquired the grove property, Mr. Dass filed an action in the Polk County Circuit Court against TID. In his action, Mr. Dass asserted multiple claims against TID for matters related to the parties' joint ownership of the grove property. Mr. Dass alleged his claims in an eight-count complaint as follows: Count I, partition and sale of the property; Count II, damages for failure to pay Mr. Dass his share of the profits from fruit sales and for failing to properly manage the property; Count III, damages for conversion of the profits from fruit sales; Count IV, claims for an accounting, disgorgement of secret profits, and the imposition of a constructive trust; Count V, unjust enrichment; Count VI, quantum meruit; Count VII, damages in the amount of $66,000 for money lent, plus interest; and Count VIII, an action for waste, based on allegations that TID had failed to maintain the grove property. Mr. Dass requested “trial by jury on all issues so triable.”
Contemporaneously with the filing of the complaint, the clerk of the court issued a summons with a copy of the complaint attached. Service was to be made on TID in care of Mr. Dinanath as registered agent and president at the West Colonial Drive address. On July 30, 2008, at approximately 10:30 a.m., an Orange County sheriff's deputy went to the UPS store at the West Colonial Drive address in Winter Garden. There, the deputy spoke with Nathan Flashman, the owner and manager of the UPS store.1 Mr. Flashman confirmed for the deputy that TID and Mr. Dinanath maintained a private mailbox at the store and that the private mailbox account was active and in good standing. Based on that information, the deputy delivered the process to Mr. Flashman as the owner and store manager of the UPS store. Mr. Flashman accepted the process and placed it in TID's private mailbox.
The nature and scope of the claims that Mr. Dass asserted against TID were very serious. In addition to the several claims for substantial money damages, the partition claim had the potential to adversely affect TID's interest in the grove property. So it is reasonable to assume that if TID had obtained actual notice of the filing of Mr. Dass's complaint, TID would have retained counsel and defended the action. But for reasons unexplained in our record, visits by Mr. Dinanath and Ms. Manbahal to the UPS store on West Colonial Drive to retrieve the contents of the private mailbox were occasional and infrequent. The summons and complaint lay unread in the private mailbox for several months until after a final judgment was entered in the case. Copies of later filings in the case—all mailed to the West Colonial Drive address—suffered the same fate. Indeed, Mr. Dinanath and Ms. Manbahal failed to visit the private mailbox through December 2008, when the circuit court mailed a copy of the final judgment to TID at that address.
While the summons and complaint lay unread in TID's private mailbox, Mr. Dass continued to pursue his claims against the corporation. On August 20, 2008, he filed a motion for the entry of clerk's default based on TID's failure to file or serve a written response to the complaint within twenty days. The clerk entered the requested default two days later. On December 10, 2008, Mr. Dass filed a “Motion for Final Judgment after Default, or in the Alternative, Motion for Final Summary Judgment.” This motion was accompanied by an affidavit from Mr. Dass and affidavits concerning attorney's fees. Mr. Dass served a copy of the motion with the supporting affidavits and a notice of hearing by mail on TID in care of Mr. Dinanath as registered agent and president at the West Colonial Drive address.
On December 12, 2008, after a hearing at which TID was not represented, the circuit court entered a final judgment. In the final judgment, the circuit court found that the grove property, consisting of approximately seventy-seven acres, was “not capable of physical division.” 2 Accordingly, the circuit court appointed a special magistrate to take immediate possession of and to sell the property in accordance with section 64.061(4), Florida Statutes (2008). The circuit court also entered judgment in favor of Mr. Dass and against TID for $429,486.28.3 In the final judgment, the circuit court reserved jurisdiction to apply the proceeds realized from the sale of the grove property to the payment of the sum owed to Mr. Dass. The circuit court sent a copy of the final judgment to TID in care of Mr. Dinanath at the West Colonial Drive address.
While the papers relating to Mr. Dass's lawsuit continued to accumulate unread in TID's private mailbox, the court-appointed special magistrate put a “For Sale” sign on the grove property. An inquiry by a real estate broker who saw the “For Sale” sign prompted Mr. Dinanath and Ms. Manbahal to make an investigation that led to their discovery of the filing of the lawsuit and the entry of the final judgment.
On January 20, 2009, TID filed its motion to vacate the final judgment and the clerk's default. Both Mr. Dinanath and Ms. Manbahal verified the motion under oath. In the motion, TID contended that the final judgment was void because the service of process on TID at the private mailbox was invalid. TID asked the circuit court to vacate the final judgment and the clerk's default.
The circuit court conducted two hearings on TID's motion to vacate. At the first hearing, the parties presented legal arguments but did not offer any testimony. TID made two arguments pertinent to our discussion.4 First, TID asserted that the service was invalid because another address for the corporation—the Strihal Loop address—was discoverable from the public records. With regard to its first argument, TID relied on copies of two documents from the Polk County public records reflecting the Strihal Loop address for the corporation. Mr. Dass relied on multiple copies of documents from the public records reflecting the West Colonial Drive address, including the property appraiser's records for the grove property.
In its second argument, TID contended that service of process was invalid because the corporation did not maintain a private mailbox at the UPS store on West Colonial Drive when the service was made. In support of the second argument, Mr. Dinanath and Ms. Manbahal had sworn in their motion that TID did not maintain a private mailbox at the West Colonial Drive address on July 30, 2008, the...
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