Koster v. Sullivan

• Decision Date: 05 February 2015
• Docket Number: No. SC13–159.,SC13–159.
• Citation: 160 So.3d 385
• Parties: Lance KOSTER, Petitioner, v. Carol SULLIVAN, Respondent.
• Court: Florida Supreme Court

160 So.3d 385

Lance KOSTER, Petitioner

v.Carol SULLIVAN, Respondent.

No. SC13–159.

Supreme Court of Florida.

Feb. 5, 2015.

Rehearing Denied March 24, 2015.

William Newt Hudson of the Law Offices of Wm. Newt Hudson, Tarpon Springs, FL, for Petitioner.

C. Philip Campbell, Jr., Duane Allan Daiker, and Michele Leo Hintson of Shumaker, Loop & Kendrick, LLP, Tampa, FL, for Respondent.

Opinion

LABARGA, C.J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Koster v. Sullivan, 103 So.3d 882 (Fla. 2d DCA 2012). In its decision, the district court ruled upon the following question, which the court certified to be of great public importance:

IS A RETURN OF SERVICE, IN ORDER TO BE DEEMED REGULAR ON ITS FACE SUCH THAT THE PARTY SEEKING TO ESTABLISH SERVICE IS ENTITLED TO A PRESUMPTION OF VALID SERVICE, REQUIRED TO EXPRESSLY LIST THE FACTORS DEFINING THE “MANNER OF SERVICE” INDICATED ON THE RETURN THAT ARE OTHERWISE IDENTIFIED IN STATUTES DEFINING SERVICE BUT ARE NOT INCLUDED IN THE FACIAL LANGUAGE OF SECTION 48.21 DEFINING INVALID SERVICE?

Id. at 886–87. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons we explain in this opinion, we answer the certified question in the negative. We hold that a facially valid return of service is not required to expressly list the factors defining the “manner of service” contained in section 48.031(1)(a), Florida Statutes (2009), which are not included in the requirements of section 48.21, Florida Statutes (2009), defining valid return of service.

FACTS AND PROCEDURAL BACKGROUND

This case arose as a result of a complaint filed by Carol Sullivan against Lance Koster. On November 7, 2009, a process server delivered a summons and a copy of the complaint to Koster's residence. Koster was not home at the time, and the documents were left with Koster's sister-in-law, Pat Hassett, who was present in the home when the delivery was made. When Koster did not file an answer or other responsive pleadings, a clerk's default was entered against him. Koster failed to appear at the hearing on Sullivan's motion for final default judgment, but he subsequently filed a motion to set aside the default, set aside the final default judgment, and quash service of process on the bases that service was defective and that the return of service was defective on its face.

The trial court held an evidentiary hearing and determined that the return of service was not facially defective, thus giving rise to the presumption that service was properly made based on the facial regularity of the return. The evidence presented at the hearing conflicted as to whether Koster's sister-in-law actually resided at the address served and was therefore capable of accepting service on Koster's behalf. Additionally, Koster's sister-in-law could not testify that, at the time of service, the process server did not explain the contents of the documents to her. Therefore, the trial court concluded that Koster did not meet the clear and convincing evidence standard to rebut the presumption that service was proper and denied his motion.

Koster appealed the trial court's decision to the Second District Court of Appeal challenging the denial of his motion. Because the return of service met the textual requirements of section 48.21, the Second District stated that the issue was whether meeting the requirements of that section included listing the elements of the “manner of service” from section 48.031(1)(a) to establish that the return was regular on its face. Koster, 103 So.3d at 885. The district court rejected Koster's argument that in specifying the manner of service under section 48.21, the process server was also required to list the specific factors for substitute service under section 48.031(1)(a). Id. at 886. The court added: “But the determination that a return is regular on its face, no matter what type of service, is governed only by the language of section 48.21 and does not require express reference to section 48.031(1)(a) or any other statute that serves to define a specified manner of service.” Id. at 885. The court noted that evidence that any of the factors listed in section 48.031(1)(a) were not present in the service could be used by Koster in rebutting the presumption of service; however, a strict construction of section 48.21 did not require an explicit identification of those factors in the return of service. Id.

The district court certified conflict with three decisions¹ from the Third District Court of Appeal and certified the above question as one of great public importance. Id. at 886–87. We granted review based on the certified question.

ANALYSIS

Two statutes are at issue in this case. Section 48.21 governs the return of execution of process, and section 48.031(1)(a) governs service of process generally. In sum, Koster argues that a valid return of service under section 48.21 requires the express inclusion of the factors contained in section 48.031(1)(a).

Relevant Statutes and Standard of Review

When process was served in this case, section 48.21 provided as follows:

48.21 Return of execution of process. —Each person who effects service of process shall note on a return-of-service form attached thereto, the date and time when it comes to hand, the date and time when it is served, the manner of service, the name of the person on whom it was served and, if the person is served in a representative capacity, the position occupied by the person. A failure to state the foregoing facts invalidates the service, but the return is amendable to state the truth at any time on application to the court from which the process issued. On amendment, service is as effective as if the return had originally stated the omitted facts. A failure to state all the facts in the return shall subject the person effecting service to a fine not exceeding $10, in the court's discretion.²

§ 48.21, Fla. Stat. (2009). The pertinent portion of section 48.031 provided:

48.031 Service of process generally; service of witness subpoenas. —

(1)(a) 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. Minors who are or have been married shall be served as provided in this section.

§ 48.031(1)(a), Fla. Stat. (2009).

The certified question involves the interpretation of section 48.21 and, more specifically, requires this Court to determine whether, in addition to the requirements of section 48.21, a facially valid return of service must also include the factors relating to manner of service under section 48.031(1)(a). Because the certified question involves the interpretation of a Florida statute, the proper standard of review is de novo. See Tasker v. State, 48 So.3d 798, 804 (Fla.2010).

Service of Process and Returns of Service

Statutes governing service of process must be strictly construed and enforced. Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952, 954 (Fla.2001). This Court has explained: “The doctrine that no person shall be deprived of property unless by due process of law, reiterated in all American constitutions, gives every person the right to demand that the law shall be strictly complied with in all proceedings which may affect his title to his property.” Standley v. Arnow, 13 Fla. 361, 365–66 (Fla.1869). An essential part of this due process protection is that a court that seeks to enter and subsequently enforce a judgment against an individual “must have jurisdiction of the subject matter and of the persons affected. A defect in the jurisdiction of the court may render its proceedings void. Where the statutes point out the mode of acquiring jurisdiction over the person, it must be strictly pursued.” Id. at 366. However, “strict construction” does not support reading additional requirements into the express language of a statute.

The return of service is the instrument a court relies on to determine whether jurisdiction over an individual has been established. See Klosenski v. Flaherty, 116 So.2d 767, 768–69 (Fla.1959) (“Many other decisions of this court show clearly that the officer's return is no part of the service—either to add to or detract from it—but is merely evidence to enable the trial judge to conclude that the court has acquired jurisdiction of the person of the defendant, or has not done so, as the case may be.”). This Court has further explained:

If the return is regular on its face, it serves “as a virtual basis for the Court to assume that it has lawfully obtained jurisdiction over the person of the defendant,” [Rorick v. Stilwell, 101 Fla. 4, 133 So. 609, 610 (1931) ], for the purpose of entering judgment by default against such defendant. If, however, the return is defective on its face, it “cannot be relied upon as evidence that the court acquired jurisdiction over the person of the defendant to whom said subpoena was directed,” [Gibbens v. Pickett, 31 Fla. 147, 12 So. 17, 18 (1893) ], so that a decree pro confesso entered upon the basis of such a return should be set aside. [See Standley v. Arnow, 13 Fla. 361 (Fla.1869) ].

Id. at 769.

The Florida Legislature has identified four facts that a return of process shall note: (1) the date and time that the pleading comes to hand or is received by the process server, (2) the date and time that process is served, (3) the manner of service, and (4) the name of the person served and, if the person is served in a representative capacity, the position occupied by the person. See § 48.21, Fla. Stat.

The party who seeks to invoke the court's jurisdiction bears the burden of proving proper service. This burden requires the party to demonstrate that the return of service is, under section 48.21, facially valid or regular on its face. A return of service that is...