Green v. Jorgensen

Decision Date10 March 2011
Docket NumberNo. 1D10–3721.,1D10–3721.
Citation56 So.3d 794
PartiesLaurie GREEN, Appellant,v.Mike JORGENSEN and Elizabeth Domnisch, Appellees.
CourtFlorida District Court of Appeals

OPINION TEXT STARTS HERE

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

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.

The trial court denied the motion to dismiss for insufficient service of process, noting the absence of any affidavit executed by Ms. Green herself. Ms. Green then filed an emergency motion for reconsideration, to which she attached her own personal affidavit, swearing that, at the time of service, she was living in Chicago, at an address she provided, and that she began living at the Chicago address on November 23, 2008. The trial court found her personal affidavit sufficient to warrant de novo reconsideration of the motion to dismiss, which, however, the trial court directed be refiled as a motion to quash service of process.

Thereupon Ms. Green filed a motion to quash service of process, arguing that she was not living at the Pennsylvania address at the time of service, was not served at her “usual place of abode,” and that service of process on her sister was insufficient under section 48.031, Florida Statutes. To this motion, she attached a new personal affidavit identical in substance to the first personal affidavit she filed, except that she added “W” before the street name in her Chicago address. Ms. Green's driver's license number in the jurat of the new affidavit was blacked out, with what appeared to be the notary public's initials placed next to the deletion. Ms. Green also attached to the motion to quash service of process all four affidavits she had originally attached to her motion to dismiss, along with the arrest report, and the return of service.

At a hearing on the motion, Mr. Jorgensen argued that Ms. Green had altered the jurat in her personal affidavit. He offered an affidavit of the notary public, who denied blacking out the driver's license number and affixing his initials next to the deletion. Ms. Green later filed a counteraffidavit asserting that she had requested the notary public to omit her driver's license number, that he did not do so at first, but that, after he walked away to discuss the matter with his co-workers, he slid the affidavit back to Ms. Green with a black line through the driver's license number and his initials next to the line.

The trial court denied the motion to quash, finding that Ms. Green had impermissibly altered the jurat in an affidavit submitted to the court and that her actions effecting the alteration destroyed or impaired the credibility both of her personal affidavit and of the affidavits filed by the two (other) Chicago residents. The trial court also found Ms. Green's sister's affidavit not credible, because of the family relationship, a rationale that may have extended to her brother-in-law's affidavit, as well. The trial court declined to quash service of process, ruling that all five 3 affidavits offered in...

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5 cases
  • Puglisi v. State, SC11–768.
    • United States
    • United States State Supreme Court of Florida
    • April 11, 2013
  • Tuscan River Estate, LLC v. U.S. Bank Tr.
    • United States
    • Court of Appeal of Florida (US)
    • November 30, 2022
    ...an order denying a motion to quash service of process establishes personal jurisdiction in the trial court. See Green v. Jorgensen, 56 So.3d 794, 796 (Fla. 1st DCA 2011). [2] Sections 48.062 and 48.181 were amended in 2022. Ch. 2022190, §§ 3, 12, Laws of Fla. All statutory citations in this......
  • Tuscan River Estate, LLC v. U.S. Bank Tr.
    • United States
    • Court of Appeal of Florida (US)
    • November 30, 2022
    ...an order denying a motion to quash service of process establishes personal jurisdiction in the trial court. See Green v. Jorgensen, 56 So.3d 794, 796 (Fla. 1st DCA 2011). [2] Sections 48.062 and 48.181 were amended in 2022. Ch. 2022190, §§ 3, 12, Laws of Fla. All statutory citations in this......
  • Heck v. Bank Liberty
    • 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......
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