Koster v. Sullivan
| Decision Date | 28 December 2012 |
| Docket Number | No. 2D11–4766.,2D11–4766. |
| Citation | 103 So.3d 882 |
| Parties | Lance KOSTER, Appellant, v. Carol SULLIVAN, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Wm. Newt Hudson, Tarpon Springs, for Appellant.
C. Phillip Campbell, Jr., Michele Leo Hintson, and Duane A. Daiker of Shumaker, Loop & Kendrick, LLP, Tampa, for Appellee.
Lance Koster challenges the order denying his motion to set aside default, set aside partial final default judgment, and quash service of process. Because a strict reading of section 48.21, Florida Statutes (2010), supports the trial court's finding that the return of service was regular on its face and the record also supports the trial court's finding that Koster failed to meet his burden of proving ineffective service, we affirm.
Carol Sullivan commenced the proceeding below by the filing of a complaint against Koster and other defendants who are not parties to this appeal. On November 7, 2009, a process server delivered a summons and a copy of the complaint to Koster's place of residence. Koster was not at home at the time, and the documents were left with Koster's sister-in-law, who was present in the home when the delivery was made. Koster did not file an answer or other responsive pleadings, maintaining that he never received the documents. After a clerk's default was entered, he failed to appear at the hearing on Sullivan's motion for final default judgment.
Koster filed his motion to set aside the default, set aside the final default judgment, and quash service of process. The bases of the motion were that the service of process was defective and that the return of service was defective on its face. The trial court held an evidentiary hearing on Koster's motion at which it made determinations that the return of service was not facially defective and that Koster did not meet the clear and convincing standard necessary to overcome the presumption that service was proper based on the facial regularity of the return. Because the evidence presented to the trial court conflicted as to whether Koster's sister-in-law actually was a resident of the address served who could accept service on Koster's behalf and because the sister-in-law did not testify that at the time of service the process server failed to explain the contents of the documents to her, the trial court denied Koster's motion. Koster appeals that denial.
The procedure for determining effective service of process has been set forth in Re–Employment Services, Ltd. v. National Loan Acquisitions Co., 969 So.2d 467 (Fla. 5th DCA 2007). The burden of proving effective service of process initially falls on the party seeking to invoke the court's jurisdiction. The return of service is evidence of whether service was validly made. If the return of service is regular on its face, service of process is presumed to be valid and the burden then shifts to the party challenging service to rebut the presumption with clear and convincing evidence. However, if the return is defective on its face, then the return is not evidence of service and the party seeking to invoke the court's jurisdiction must present evidence to show effective service of process. Id. at 471.
Koster argued below, and argues now on appeal, that the return of service was defective on its face and that therefore Sullivan should be denied the presumption of service. Accordingly, the issue before this court is the facial validity of the return of service filed below by Sullivan.
The requirements of facial validity for a return of service are set forth in section 48.21, Florida Statutes, the applicable version of which reads as follows:
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.
Koster argued below that for the return of service to be sufficient under section 48.21, the term “manner of service” must be strictly construed. He further maintained that because the return of service filed in this case 1 indicates that the manner of service was substitute service, strict construction requires that the return also identify specifically all of the statutory requirements of substitute service. See§ 48.031(1)(a) (); see also Gonzalez v. Totalbank, 472 So.2d 861, 863–64 (Fla. 3d DCA 1985) () (emphasis added)).
Koster argued that because the return of service did not include a statement that the sister-in-law was fifteen or more years old and there was no indication that the content of the process was explained to her, the return was defective. The trial court disagreed and found that the return was regular on its face and was evidence of proper service.
We agree that it is clear that the return of service at issue here meets the textual requirements of section 48.21. The question then becomes whether meeting those requirements, without further identifying the “manner of service” by listing the specific elements set forth in section 48.031(1)(a), established the return of service as regular on its face.
The Third District has suggested that “[s]ervice made under the substitute service provisions of section 48.031 ... must be strictly complied with and [that] these provisions are to be strictly construed.” Robles–Martinez v. Diaz, Reus, & Targ, LLP, 88 So.3d 177, 180 (Fla. 3d DCA 2011) (); see also Walton v. Walton, 181 So.2d 715, 717 (Fla. 2d DCA 1966) (). 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.
Accordingly, while evidence that any of the factors outlined in section 48.031(1)(a) were not present in this case could be used by Koster to meet his subsequent burden of rebutting the presumption of service—and under Robles–Martinez and Walton must be strictly construed by the courts when evaluated in that context—the term “regular on its face” does not appear to have been given explicit definition or application beyond the text of section 48.21. Therefore, in evaluating a determination of the facial regularity of a return, we do not read a strict construction of section 48.21 to also require an explicit identification of the individual requirements of section 48.031(1)(a) in order for the return of service to be deemed regular on its face. See§ 48.21; see also Carone v. Millennium Settlements, Inc., 84 So.3d 1141, 1142 (Fla. 4th DCA 2012) (); Re–Emp't Servs., 969 So.2d at...
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