Martins v. Oaks Master Prop. Owners Ass'n, Inc.

• Decision Date: 14 November 2014
• Docket Number: No. 5D13–3852.,5D13–3852.
• Citation: 159 So.3d 142
• Parties: Sergio MARTINS, Appellant, v. The OAKS MASTER PROPERTY OWNERS ASSOCIATION, INC., Appellee.
• Court: Florida District Court of Appeals

159 So.3d 142

Sergio MARTINS, Appellant

v.The OAKS MASTER PROPERTY OWNERS ASSOCIATION, INC., Appellee.

No. 5D13–3852.

District Court of Appeal of Florida, Fifth District.

Nov. 14, 2014.

Bradford Petrino, of Korshak & Associates, P.A., Casselberry, for Appellant.

Marisa R. Cochrane, of Larsen & Associates, P.L., Orlando, for Appellee.

Opinion

PER CURIAM.

Sergio Martins appeals a summary final judgment foreclosing a claim of lien related to an Osceola County property entered in favor of The Oaks Master Property Owners Association, Inc., (HOA), and an order denying his motion to vacate final judgment, void sale of real property, vacate default, and quash service of process. Martins argues that the final judgment is void because the HOA's constructive service on him was defective. We agree, and reverse.

In February 2010, the HOA filed a foreclosure complaint to enforce and foreclose a claim of lien in regard to Martins' failure to pay maintenance assessments. A letter enclosing the claim of lien was addressed to Martins and mailed to the subject property. A service processor attempted to serve Martins at the subject property, but found that the house was unfurnished and the power was off. A neighbor reported that the owner is there now and then. Thereafter, the HOA's counsel filed an affidavit for service by publication, alleging:

a) I sent a Demand letter to the last known address of 2119 The Oaks Boulevard, Kissimmee, FL 34746. No response was received from the defendant.

b) I hired a process server at Magic Process to serve summons on Defendants, Sergio Martins and Unknown Spouse of Sergio Martins. Process Server stated that the property was unoccupied at the time of service.

c) I have searched for the Defendant with the Osceola County Property Appraisers office to determine if there are other properties the Defendant may own and or reside in. I have found no other property owned by Sergio Martins and Unknown Spouse of Sergio Martins

d) I have searched for the Defendant by name and by address in a popular background database search service known as Accurint.com. We have not found another address aside from the aforementioned addresses at which the Process Server attempted service on the Defendants.

e) I have searched for the Defendants by name using World Wide Web based telephone listings. I have found no listing.

f) I have sent the U.S. Post Office a change of address/physical address request and they reported that they had no forwarding information for Defendant.

g) I have searched the Florida Department of Corrections on them to see if they had been incarcerated.

h) I have searched the Osceola County Inmate Records on them to see if they have been incarcerated.

i) I have searched Clerks website of Osceola County, Florida. I found the Deed that was recorded for subject property when they purchased the property. The address on the Deed is 2119 The Oaks Blvd., Kissimmee, FL 34746. There is no recorded mortgage on this property.

2. The age of the Defendant is unknown to Affiant.

3. The residence of the Defendant is unknown to Affiant.

4. The Defendant, having residence in Florida, has been absent from there for more than 60 days prior to the making of this affidavit, or conceals him/herself so that process cannot be served personally upon him/her, and that Affiant believes that there is no person in the state upon whom service of process would bind this absent or concealed Defendant.

Notice was published in the Heritage Florida Jewish News in the issues of March 18 and 25, 2011. Subsequently, the clerk granted the HOA's motion for default, and a summary final judgment followed, directing that the property be sold at public auction to satisfy the HOA's claim of lien. The property was then sold at public auction to an uninterested third party.

Although Martins owned the Osceola County property, he has resided in Cutler Bay, Florida since 2005. He purchased the property for his grandmother who moved out in 2006, and relocated to Georgia with her sister, Martins' aunt. Since that time, his aunt checked on the property every other month, and had enlisted the help of a neighbor with yard work.

Martins' aunt notified Martins of the foreclosure after the neighbor notified her that the locks had been changed and furniture had been removed. Accordingly, Martins filed a motion to vacate final judgment, void sale of real property, vacate default, and quash service of process. Martins insisted that the HOA's diligent search was insufficient because it did not search any public records other than Osceola County, did not search any voter registration records, did not search the Osceola County Tax Collector's records, did not search the Florida Department of Motor Vehicles records regarding title, registration, or driver's licenses, and did not talk to any of Martins' neighbors or utility companies providing service to the property. If the HOA had done so, it would have discovered that Martins' driver's license listed the Cutler Bay address as his address, Martins had several vehicles registered to his Cutler Bay address, and the Osceola County Tax Collector's records for the subject property listed the Cutler Bay address as Martins' address. Martins further alleged that the HOA failed to examine its own business records to find that it had previously mailed correspondence to Martins at his Cutler Bay address. Indeed, in 2009 the HOA mailed a work order invoice for the subject property to Martins at the Cutler Bay address. In May 2010, the HOA's counsel mailed Martins a letter to his Cutler Bay address informing him that it was attempting to collect a debt, and that if he was the owner of the subject property, to please contact the law firm. Martins denied that he ever received the letter. Even so, the HOA never attempted to serve Martins at the Cutler Bay address.

We review the denial of a motion to vacate a final judgment for a gross abuse of discretion. Lewis v. Fifth Third Mortg. Co., 38 So.3d 157, 160 (Fla. 3d DCA 2010). “A fundamental requirement of due process in any judicial proceeding is notice reasonably calculated both to apprise interested parties of the pendency of the action, and to give the party so notified an opportunity to present his or her side of the controversy.” Miller v. Partin, 31 So.3d 224, 227 (Fla. 5th DCA 2010). “Due process considerations do take into account the need to serve a party by publication when the circumstances authorize it, but notice by publication is generally regarded as insufficient with respect to an individual whose name and address are known or easily ascertainable.” Id.

Pursuant to sections 49.011(1) and 49.021(1), Florida Statutes (2010), service of process by publication may be made on any known or unknown party, upon which personal service cannot be effected, in an action or proceeding to enforce any legal or equitable lien or claim to any title or interest in real or personal property.See First Home View Corp. v. Guggino, 10 So.3d 164, 165 (Fla. 3d DCA 2009). “[B]ecause the lack of personal service implicates due process concerns, a plaintiff must strictly comply with the statutory requirements.” See Redfield Invs., A.V.V. v. Village of Pinecrest, 990 So.2d 1135, 1138 (Fla. 3d DCA 2008). “Failure to strictly comply renders a subsequent judgment voidable.” Floyd v. Fed. Nat'l Mortg. Ass'n, 704 So.2d 1110, 1112 (Fla. 5th DCA 1998). “If service of process is so defective that it amounts to no notice of the proceedings, the judgment is void.” Id. For example, in Godsell v. United...