Country Clubs of Sarasota, Ltd. v. Zaun Equipment, Inc., FF-125

• Decision Date: 05 October 1977
• Docket Number: No. FF-125,FF-125
• Citation: 350 So.2d 539
• Parties: COUNTRY CLUBS OF SARASOTA, LTD., Appellant, v. ZAUN EQUIPMENT, INC., Appellee.
• Court: Florida District Court of Appeals

Page 539

350 So.2d 539

COUNTRY CLUBS OF SARASOTA, LTD., Appellant, v. ZAUN EQUIPMENT, INC., Appellee.

No. FF-125.

District Court of Appeal of Florida, First District.

Oct. 5, 1977.

John W. Griffis, III, of Trawick, Griffis & Ferrell, Sarasota, for appellant.

Robert A. Skeels of Milam & Wilbur, Jacksonville, for appellee.

McCORD, Chief Judge.

This interlocutory appeal is from an order denying appellant's (garnishee's) motion for relief from final judgment in garnishment entered upon a default which had been entered on the same day. As to appellant's contention that appellee did not obtain legal service of the writ of garnishment, we disagree. As to appellant's further contention that the default and the final judgment entered thereon should have been set aside by the trial court, we agree and reverse.

Appellant Country Clubs of Sarasota, Ltd., is a Florida limited partnership organized and existing under the Florida Limited Partnership Law Part I, Chapter 620, Florida Statutes (1975). It was formed with two general partners in late 1975; RMS Development Corp., a Florida Corporation, and Florida Country Clubs, Inc., a Florida Corporation, referred to hereafter as RMS and FCC respectively. Subsequent to appellant filing its certificate of limited partnership and limited partnership agreement with the Florida Department of State, it duly filed and recorded with that Department amendments to its certificate of limited partnership and limited partnership agreement twice during the next few months. The most recent amendment, dated April 1, 1976, listed FCC as a general partner with plenary authority over the affairs of garnishee including exclusive control over appellant's business and its managements, exclusive authority to borrow or lend money on behalf of appellant; exclusive authority to disburse appellant's funds; exclusive authority to execute instruments conveying appellant's property; and authority to defend in its own name or in appellant's name all civil suits against appellant. At no time material to this action did appellant further amend its certificate of limited partnership and limited partnership agreement.

This garnishment action was predicated upon a judgment in appellee's favor against Gulf-To-Bay Lawn Sprinklers of Sarasota, Inc., in the amount of $8,549.14. Based upon information appellee had received to the effect that appellant owed Gulf-To-Bay Lawn Sprinklers between $7,000 and $8,000, appellee obtained issuance of a writ of garnishment against appellant. Before doing so, however, appellee's attorney obtained from the Department of State the latest information on appellant's composition, and the officers and agents of its corporate general partners. The writ was served on appellant on August 31, 1976, through its general partner FCC by personally serving David A. Steves, FCC's registered agent, for service of process and also FCC's attorney. Thereafter, Mr. Steves called appellee's attorney to advise that he had been served with the writ and to obtain additional time to respond. Subsequently, appellee's attorney received a letter from Mr. Steves confirming that appellant would have an additional 20 days to respond to the writ. When this time expired, appellee's attorney called Mr. Steves, and Steves requested and was extended an additional week to 10 days to respond. When this time elapsed with no response being filed, appellee's attorney wrote Mr. Steves a letter. Several days later Mr. Steves called appellee's attorney and either told him to go ahead and take a default because his people didn't think anything could be done about it (he had previously stated that he considered the service was deficient) or told him that they were not going to take any action. Mr. Steves testified that his only contact in this matter was with the officials of FCC; that he had no connection with RMS. Following the attorney's last above communication with Steves, appellee obtained a default judgment and a final judgment on November 24, 1976, for the full amount of its claim against Gulf-To-Bay Lawn Sprinklers $8,549.14.

At the hearing on the motion to set aside the final judgment, appellant put in evidence an assignment dated August 7, 1976, of FCC's partnership rights, title and interest in appellant to RMS. Robert A. Schroeter, credit manager of appellee, testified as follows to statements made by Mr. Salsman, vice-president of RMS, in regard to the garnishment:

"Q O.K. What were the statements that Mr. Salsman made in regard to the purported writ of garnishment?

"A He said something had come across his desk with the name Gulf-To-Bay, a garnishment, Gulf-To-Bay, and he did not pay much attention to it because of the fact it was Gulf-To-Bay and something about he didn't pay much attention to it.

"Q Did he ever make any reference to whether he saw a writ of garnishment?

"A He didn't know what it was, he said with the name Gulf-To-Bay. He said he didn't know exactly what it was."

It is entirely unclear whether or not the paper that went over Mr. Salsman's desk was the writ of garnishment or the final judgment in garnishment. Appellant contends that FCC at the time of service of the writ of garnishment was no longer a corporate general partner of appellant and that § 48.061, Florida Statutes, does not permit process against a limited partnership by service on the resident agent of a former corporate general partner. § 48.061(2) provides "Process against a domestic limited partnership shall be served on any general partner and is as valid as if served on each individual member thereof. After service on any general partner, plaintiff may proceed to judgment and execution against the limited partnership and all of the general partners individually. Service of process may be made under §§ 48.071 and 48.21 on limited partnerships."

Appellant contends that the foregoing statute requires personal service on a corporate general partner and that such can be accomplished only by serving corporate officers or directors. Nothing in the above statute, however, makes this requirement. Strictly speaking, there can be no personal service upon a corporation because it is a fictitious person. There can only be such constructed or substituted service as the law may provide. Clearwater Mercantile Co. v. Roberts, Johnson, Rand Shoe Co., 51 Fla. 176, 40 So. 436 (1906). Personal service on a corporation means personal service on its officers or agents. Smetal Corporation v. West Lake Inv. Co., 126 Fla. 595, 172 So. 58 (Fla.1936). § 48.081, Florida Statutes (1975), provides for such personal service on officers or agents of a corporation including, as an alternative to all corporate officers, the registered agent designated by the corporation to accept service of process on its behalf. Thus, in the case sub judice, service upon the registered agent of FCC is as good personal service as may be obtained on FCC and such service upon FCC is legal service upon a partnership of which it is a member.

Appellant cannot rely upon FCC's assignment of its partnership interest to appellant's other general partner RMS to defeat service of process. At the time of such service, appellant held itself out to the world through its certificate of limited partnership on file with the Florida Department of State as a partnership whose partners were FCC and RMS. In reliance upon appellant's act, appellee served FCC. If that service were to now be held invalid, appellee will have acted to its detriment in reliance upon appellant's act. Appellant is therefore estopped to deny that FCC was no longer a partner at the time of service.

Appellant also contends that the default judgment should be set aside because it did not know of the service of the writ of garnishment and is not guilty of any gross negligence in...