Clauro Enterprises v. Galiano Holdings

• Decision Date: 02 September 2009
• Docket Number: No. 3D09-711.,3D09-711.
• Citation: 16 So.3d 1009
• Parties: CLAURO ENTERPRISES, INC., and Ricardo Rupcich, Appellants, v. ARAGON GALIANO HOLDINGS, LLC, Appellee.
• Court: Florida District Court of Appeals

16 So.3d 1009

CLAURO ENTERPRISES, INC., and Ricardo Rupcich, Appellants, v. ARAGON GALIANO HOLDINGS, LLC, Appellee.

No. 3D09-711.

District Court of Appeal of Florida, Third District.

September 2, 2009.

Alan P. Dagen, for appellants.

Seidman, Prewitt, DiBello & Lopez and Clayton D. Hackney, Coral Gables, for appellee.

Before GERSTEN, ROTHENBERG, and LAGOA, JJ.

LAGOA, Judge.

Clauro Enterprises, Inc., ("Clauro") and Ricardo Rupcich ("Rupcich") appeal an order denying their motion to vacate a final default judgment for lack of jurisdiction entered in favor of Aragon Galiano Holdings, LLC ("Aragon"). Clauro and Rupcich challenge the entry of the respective default judgments on the ground that service of process was defective. We affirm as to Clauro. However, we reverse as to Rupcich because we agree that service on him, individually, was defective.

I. FACTUAL AND PROCEDURAL HISTORY

In February 2008, Aragon filed a multi-count complaint against Clauro and Rupcich, individually, for breach of contract, conversion, civil theft, and unjust enrichment. Pursuant to section 48.031(6), Florida Statutes (2008), Aragon attempted service on both Clauro and Rupcich by leaving copies of the complaint and summons with the owner of a UPS mailbox store located in Weston, Florida. Neither defendant filed or served a responsive pleading, and in April 2008, the trial court entered a final default judgment against both defendants, and awarded damages to Aragon.

Following the entry of the final default judgment, Aragon sought discovery in aid of execution on the judgment. The defendants failed to respond to the discovery requests, and Aragon filed a motion to compel. At the hearing on that motion, the trial court entered an order compelling the defendants to respond to the discovery in aid of execution or be deemed in contempt of court. A copy of the order was mailed to each defendant at the private mailbox located at the Weston UPS store. When the defendants failed to comply with the order, Aragon filed a motion for a rule to show cause why the defendants should not be held in contempt and for a writ of bodily attachment. Aragon served Rupcich with this motion at his residence in Weston, Florida.

In response, the defendants filed a motion to vacate the default judgment for lack of jurisdiction, arguing that neither had been served in compliance with section 48.031(6). In support of their motion, the defendants filed the affidavit of Rupcich, who asserted that he did not maintain a personal mailbox at the Weston UPS store and that his home address was easily ascertainable through the public records. The trial court denied the motion to vacate, and this appeal ensued.

II. ANALYSIS

On appeal, Clauro and Rupcich argue that Aragon failed to effect proper service necessary for the trial court to obtain personal jurisdiction over either defendant. We find that the trial court did not abuse its discretion in denying the motion to vacate as to Clauro, and we affirm that portion of the order without further comment. We agree, however, that Aragon failed to comply with section 48.031(6), Florida's substitute service statute, when it attempted to serve Rupcich, individually.

Substitute service statutes are an exception to the rule requiring personal service, and it is well-settled that such statutes must be strictly construed in order to protect a defendant's due process rights. See Alvarado v. Cisneros, 919 So.2d 585, 588-89 (Fla. 3d DCA 2006); Torres v. Arnco Constr., Inc., 867 So.2d 583, 586 (Fla. 5th DCA 2004); Fed. Nat'l Mortgage Ass'n v. Fandino, 751 So.2d 752, 753 (Fla. 3d DCA 2000), and cases cited therein.

Section 48.031(6), states as follows:

If the only address for a person to be served, which is discoverable through public records, is a private mailbox, substitute service may be made by leaving a copy of the process with the person in charge of the private mailbox, but only if the process server determines that the person to be served maintains a mailbox at that location.

(Emphasis added). In determining whether service is proper under this statute, the court must consider the plain language of the statute. See Beckley v. Best Restorations, Inc., 13 So.3d 125 (Fla. 4th DCA 2009). The statute only permits substitute service at a private mailbox if (1) it is the only address discoverable through the public records, and (2) the process server determines that the person to be served maintains a mailbox at that location. See Beckley, 13 So.3d at 125; Kramer v. MRT, LLC, No. 07-80931-CIV, 2008 WL 877211, at *1 (S.D.Fla. Apr. 1, 2008). Both requirements must be met. Here, Aragon has not met either.

With regard to the first requirement, Aragon did not and could not meet its burden of establishing that the only address for Rupcich discoverable through the public records was a private mailbox. Rupcich's affidavit clearly demonstrated that a review of the public records showed that since the year 2000 he has owned property in Weston, Florida for which he claims a homestead exemption. Moreover, at oral argument this Court noted that a search of the Broward County Property Appraiser's official website (http://www. bcpa.net) easily revealed the Weston home address for Rupcich. Finally, Aragon successfully served Rupcich at the Weston home address with its motion for rule to show cause and for writ of bodily attachment — definitive evidence that the private mailbox was not the only address for Rupcich discoverable through the public records.

Aragon's failure to meet the first statutory requirement would be sufficient for us to reverse the default judgment against Rupcich, individually. Nonetheless, we also conclude that Aragon failed to meet the second statutory requirement because it failed to show that the process server determined that Rupcich maintained a mailbox at the Weston UPS store. In support of its position that service...