Re-Employment Services, Ltd. v. Nlac

• Citation: 969 So.2d 467
• Decision Date: 16 November 2007
• Docket Number: No. 5D06-4417.,5D06-4417.
• Parties: RE-EMPLOYMENT SERVICES, LTD. and GSK Services, Inc., Appellants, v. NATIONAL LOAN ACQUISITIONS COMPANY, etc., Appellee.
• Court: Court of Appeal of Florida (US)

969 So.2d 467 RE-EMPLOYMENT SERVICES, LTD. and GSK Services, Inc., Appellants,
v.
NATIONAL LOAN ACQUISITIONS COMPANY, etc., Appellee. No. 5D06-4417. District Court of Appeal of Florida, Fifth District. November 16, 2007.

[969 So.2d 469]

C. Gene Shipley of Nardella Chong, P.A., Altamonte Springs, for Appellants.

Michael L. Gore, David J. Markese, and Eric C. Reed, of Shutts & Bowen, LLP, Orlando, for Appellee.

SAWAYA, J.

The issue we must resolve is whether a return of service is legally insufficient on its face if it does not specify the date and time the process server received the summons and complaint for service, as required by section 48.21, Florida Statutes (2006). Contending that the return of service filed in the lawsuit brought against them by National Loan Acquisitions Company (NLAC) did not contain this statutorily required information, the defendants, Re-Employment Services, Ltd. (RES) and GSK Services, Inc. (GSK), argue that the trial court erred in denying their motion to quash process, service of process, and return of process.

Although the facts underlying the lawsuit are not important to resolution of the issue before us, the procedural history is. The lawsuit was filed on June 30, 2006, and summonses for RES and GSK were issued on July 3, 2006. These dates are particularly important because affidavits of service signed by a process server for Attorneys Legal Services, Inc. (ALS), averred that ALS had received the summonses and complaint on June 30, 2006, at 5:24 p.m., which is approximately three days before the summonses were actually issued.

RES and GSK, both located in Georgia, initially filed a motion to dismiss the complaint or transfer venue, arguing that the court lacked personal jurisdiction over them because the complaint failed to allege a basis for such jurisdiction under Florida's long arm statute found in section 48.193, Florida Statutes (2006). At the time the motion was filed, RES and GSK had not received a copy of the affidavits setting forth the return of service. In response to the motion to dismiss, NLAC

969 So.2d 470

filed an amended complaint which added allegations that RES and GSK were subject to the trial court's jurisdiction because, among other things, they conducted business in Florida.

When RES and GSK received a copy of the return of service, they filed a motion to dismiss the amended complaint and to quash process, service of process, and return of process. This motion argued that the return of service was defective for failing to accurately record the date and time the summonses and complaint came to hand as required by section 48.21, Florida Statutes, and focused on the fact that the affidavits setting forth the return of service erroneously stated the summonses and complaint were received by the process server, or "came to hand," on June 30, 2006, at 5:24 p.m., when the summonses were not issued until July 3, 2006.

NLAC filed amended affidavits of the process server in an effort to correct this error and to remedy any other deficiencies in the service of process. The amended affidavits averred, in pertinent part, that the process came to hand "[o]n or about July 7, 2006," and that process was served "[o]n July 7, 2006, at 8:20 p.m." NLAC also filed a memorandum opposing the defendants' motion to dismiss the amended complaint and quash service of process, contending that the defendants waived any challenge to the sufficiency of the service of process by failing to raise the issue in their motion to dismiss the original complaint, and alternatively, that any actual deficiencies in the service of process were remedied when NLAC filed the amended affidavits of service. The trial court denied the motion without a hearing and this appeal followed.

As an initial matter, we note that this court has jurisdiction to review the non-final order denying the motion to quash under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), which permits review of non-final orders that determine the jurisdiction of a person. See Fisher v. Int'l Longshoremen's Ass'n, 827 So.2d 1096, 1097 (Fla. 1st DCA 2002); Gaspar, Inc. v. Naples Fed. Sav. & Loan Ass'n, 546 So.2d 764, 765 (Fla. 5th DCA 1989). Our standard of review is de novo. Nw. Aircraft Capital Corp. v. Stewart, 842 So.2d 190, 193 (Fla. 5th DCA 2003) (citing Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002)).

Before we proceed to resolve the specific issue before us, we will briefly address the assertion that RES and GSK waived any challenge to the sufficiency of the service of process by failing to specifically raise the issue in their motion to dismiss the original complaint. Although the trial court did not specifically articulate a ruling regarding this issue—at least we do not find such a ruling in the record before us—we believe that it did so implicitly by deciding the issue relating to the sufficiency of the return of service on the merits. We conclude that the trial court arrived at the correct result regarding the waiver issue.

A defendant must contest the sufficiency of the service of process at the inception of a case either by motion or responsive pleading. Fla. R. Civ. P. 1.140; Lennar Homes, Inc. v. Gabb Constr. Servs., ...