Carter v. Lil'Joe Records, Inc.
| Decision Date | 30 October 2002 |
| Docket Number | No. 4D01-1492.,4D01-1492. |
| Citation | 829 So.2d 953 |
| Parties | Donte Terrell CARTER, Appellant, v. LIL' JOE RECORDS, INC. and Lil' Joe Wein Music, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Paul R. Regensdorf of Akerman, Senterfitt & Eidson, P.A., Fort Lauderdale and Andrea Stone Hartley of Akerman, Senterfitt & Eidson, P.A., Miami, for appellant.
John H. Pelzer of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellees.
ON MOTION FOR REHEARING
We grant appellant's motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.
Appellant, Donte Terrell Carter, appeals a trial court's order denying his motions to set aside default and default judgment. We reverse the trial court order because service of process was insufficient as a matter of law.
Appellant, a songwriter and aspiring rap star, entered into a contract with appellee, Lil' Joe Records, Inc. (Lil' Joe), to compose and record music. After executing the contract, Lil' Joe learned that appellant had pending felony charges in Texas. He had also been arrested in Ohio and was facing criminal prosecution in that state. Lil' Joe filed suit against appellant on October 26, 2000, including a breach of contract count.
At the time this action was filed, appellant was incarcerated in Ohio. Lil' Joe served appellant with process by sending a copy of the summons and complaint to Ernestine C. Bell, the deputy sheriff for Lorain County, Ohio, to be served upon appellant at the Lorain Correctional Institution. In the affidavit of service, Bell stated that on November 8, 2000, she "served Donte Terrell Carter by personally handing to Sue Herb, Wardens Secretary, a true copy thereof with all the endorsements thereon together with accompanying documents." Despite Bell's efforts, appellant did not receive the summons and complaint until November 27.
On November 28, Lil' Joe filed for judicial default. A default was awarded by the trial court on December 12. Thereafter, on December 21, the court granted Lil' Joe a default final judgment. On January 3, 2001, appellant filed a motion to set aside default, in which he alleged improper service of process as a matter of law and, in the alternative, excusable neglect, meritorious defenses, and due diligence. Appellant attached a copy of the summons which directed that process be served upon him at the Lorain Correctional Institution, a copy of a letter between respective counsel, and a note indicating delayed receipt of the summons and complaint.1 He also referenced Bell's affidavit of service. After a hearing, the trial court denied appellant's motion to set aside default.
Appellant contends that the manner of service was improper as a matter of law. We agree. It is well established in Florida that:
The object to be accomplished by service of process is to advise the defendant that an action has been commenced against him and warn him that he must appear within a certain time and at a certain place to make such a defense as he has. Jurisdiction is perfected by the proper service of sufficient process. Chapter 48, Florida Statutes, regulates process and service of process. These statutes governing service of process are to be strictly construed to insure that a defendant receives notice of the proceedings. The burden of proving the validity of service of process is on the plaintiff. Abbate v. Provident Nat'l Bank, 631 So.2d 312, 313 (Fla. 5th DCA 1994) (citations omitted). "A judgment entered without due service of process is void." Falkner v. Amerifirst Fed. Savs. & Loan Ass'n, 489 So.2d 758, 759 (Fla. 3d DCA 1986).
Section 48.031(1)(a), Florida Statutes (2000), states:
Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.
In addition to the procedure set forth in section 48.031, this state has specifically set forth the proper method for service of process on prisoners. Section 48.051, Florida Statutes (2000), states that "[p]rocess against a state prisoner shall be served on the prisoner." Because service of process outside of Florida shall be made in the same manner as service...
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