Green v. Jorgensen, No. 1D10–3721.

CourtCourt of Appeal of Florida (US)
Writing for the CourtBENTON, C.J.
Citation56 So.3d 794
Docket NumberNo. 1D10–3721.
Decision Date10 March 2011
PartiesLaurie GREEN, Appellant,v.Mike JORGENSEN and Elizabeth Domnisch, Appellees.

56 So.3d 794

Laurie GREEN, Appellant,
v.
Mike JORGENSEN and Elizabeth Domnisch, Appellees.

No. 1D10–3721.

District Court of Appeal of Florida, First District.

Jan. 6, 2011.Rehearing Denied March 10, 2011.


[56 So.3d 795]

John S. Mills of the Mills Firm, P.A., Jacksonville, Niels P. Murphy and

[56 So.3d 796]

Geddes D. Anderson, Jr. of Murphy & Anderson, P.A., Jacksonville, for Appellant.Seth Schwartz, Caleb D. Rowland, and Jessica R. Rieffel of the Schwartz Law Group, P.A., Jacksonville, for Appellee Mike Jorgensen.BENTON, C.J.

Laurie Green appeals denial of her motion to quash service of process, on grounds the trial court should have assumed the affidavits before it were true in deciding the motion. The affidavits before the trial court can all be reconciled consistently with her contention that the house where papers were served on her sister was not her usual place of abode at the time. Accordingly, we reverse the denial of the motion to quash.

We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) to review non-final orders that determine personal jurisdiction. See Fisher v. Int'l Longshoremen's Ass'n, 827 So.2d 1096, 1097 (Fla. 1st DCA 2002). At issue here is section 48.031(1)(a), Florida Statutes (2008), which allows for substitute service by “leaving the copies at [the defendant's] usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.”

“The requirement ‘usual place of abode’ means ‘the place where the defendant is actually living at the time of service.’ ” Thompson v. State, Dep't of Revenue, 867 So.2d 603, 605 (Fla. 1st DCA 2004) (quoting Shurman v. Atl. Mortgage & Inv. Corp., 795 So.2d 952, 954 (Fla.2001)). “The word ‘abode’ means ‘one's fixed place of residence for the time being when service is made.’ If a person has more than one residence, he must be served at the residence in which he is actually living at the time of service.” Torres v. Arnco Constr., Inc., 867 So.2d 583, 586 (Fla. 5th DCA 2004) (quoting State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147 (1940)).

The standard of review for a non-final order that determines jurisdiction over a person in a case like this is de novo. See Bank of Am., N.A. v. Bornstein, 39 So.3d 500, 502 (Fla. 4th DCA 2010) (citing Re–Employment Servs. Ltd. v. Nat'l Loan Acquisitions Co., 969 So.2d 467, 470 (Fla. 5th DCA 2007)). The trial court did not order an evidentiary hearing.

After Mike Jorgensen filed a complaint against Ms. Green on November 19, 2008, a private process server delivered suit papers to Ms. Green's sister, Elizabeth Domnisch,1 at the sister's house in Pennsylvania (the Pennsylvania address) on December 3, 2008. The return of service (unsigned as far as the record reveals) recited that the process server “substitute served” Ms. Green's sister at her usual place of abode,2 but also stated that, when the process server knocked on the door, a woman with a baby in her arms came to the door and yelled, “[S]he does not live here.” The return reported, moreover, that the process server spoke with a neighbor who disavowed any knowledge of Ms. Green, telling him that “a” woman (with a child) lived at the Pennsylvania address.

[56 So.3d 797]

Ms. Green originally filed a motion to dismiss for insufficient service of process, attaching four supporting affidavits. Her sister and brother-in-law swore that they lived at the Pennsylvania address with each other (and their child), and that Ms. Green did not live there at the time of service. The other two affidavits were from Chicagoans, both of whom averred that they personally knew Ms. Green, saw her on a daily basis, and that she was living in Chicago on the date the papers were left at the Pennsylvania address.

In response to this motion, Mr. Jorgensen filed a certified copy of Ms. Green's Florida Department of Highway Safety and Motor Vehicles record, which listed the Pennsylvania address as Ms. Green's home address, and indicated that she had provided the address in August of 2008. He also filed an arrest report, dated November 19, 2008—only fourteen days before the papers were delivered in Pennsylvania—in which Ms. Green had provided the Pennsylvania address as her home address, and the arresting officer's affidavit which averred that he habitually verified arrestees' biographical information, including home addresses, during booking.

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3 practice notes
  • Puglisi v. State, No. SC11–768.
    • United States
    • United States State Supreme Court of Florida
    • April 11, 2013
    ...on a question of law. The Fourth District subsequently certified conflict with the Fifth District's decision in Cain. See Puglisi, 56 So.3d at 794. We have jurisdiction. Seeart. V, § 3(b)(3), (4), Fla. Const. The question before us is whether a criminal defendant has the ultimate authority ......
  • Heck v. Bank Liberty, No. 1D11–5888.
    • United States
    • Court of Appeal of Florida (US)
    • May 10, 2012
    ...on its face, is presumptive evidence of valid service, absent clear and convincing evidence to the contrary. See Green v. Jorgensen, 56 So.3d 794, 798 (Fla. 1st DCA 2011); Thompson, 867 So.2d at 605. If the presumption is overcome, the party asserting valid substitute service then has the b......
  • People Tech Grp., Inc. v. Sys. Soft Techs., LLC, No. 2D14–3787.
    • United States
    • Court of Appeal of Florida (US)
    • April 1, 2015
    ...order. Further, the trial court heard no testimony from which a credibility determination could have been made. See Green v. Jorgensen, 56 So.3d 794, 799 (Fla. 1st DCA 2011) (“Without an evidentiary hearing, it was not for the trial court to weigh the credibility of affidavits in no way inh......
3 cases
  • Puglisi v. State, No. SC11–768.
    • United States
    • United States State Supreme Court of Florida
    • April 11, 2013
    ...on a question of law. The Fourth District subsequently certified conflict with the Fifth District's decision in Cain. See Puglisi, 56 So.3d at 794. We have jurisdiction. Seeart. V, § 3(b)(3), (4), Fla. Const. The question before us is whether a criminal defendant has the ultimate authority ......
  • Heck v. Bank Liberty, No. 1D11–5888.
    • United States
    • Court of Appeal of Florida (US)
    • May 10, 2012
    ...on its face, is presumptive evidence of valid service, absent clear and convincing evidence to the contrary. See Green v. Jorgensen, 56 So.3d 794, 798 (Fla. 1st DCA 2011); Thompson, 867 So.2d at 605. If the presumption is overcome, the party asserting valid substitute service then has the b......
  • People Tech Grp., Inc. v. Sys. Soft Techs., LLC, No. 2D14–3787.
    • United States
    • Court of Appeal of Florida (US)
    • April 1, 2015
    ...order. Further, the trial court heard no testimony from which a credibility determination could have been made. See Green v. Jorgensen, 56 So.3d 794, 799 (Fla. 1st DCA 2011) (“Without an evidentiary hearing, it was not for the trial court to weigh the credibility of affidavits in no way inh......

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