Shurman v. Atlantic Mortg. & Inv. Corp., No. SC96918.

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM.
• Citation: 795 So.2d 952
• Docket Number: No. SC96918.
• Decision Date: 06 September 2001
• Parties: Gerald R. SHURMAN, Petitioner, v. ATLANTIC MORTGAGE & INVESTMENT CORPORATION, Respondent.

795 So.2d 952

Gerald R. SHURMAN, Petitioner,
v.
ATLANTIC MORTGAGE & INVESTMENT CORPORATION, Respondent

No. SC96918.

Supreme Court of Florida.

September 6, 2001.

Gerald R. Shurman, pro se, Orlando, FL, for Petitioner.

Anne S. Mason and Jennifer S. Ebanks of Mason & Associates, P.A., Clearwater, FL, for Respondent.

PER CURIAM.

We have for review Shurman v. Atlantic Mortgage & Investment, 740 So.2d 1221 (Fla. 5th DCA 1999), which expressly and directly conflicts with State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145

795 So.2d 953

(1940). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons set forth below, we quash the decision of the district court

FACTS

The record reflects that Gerald Shurman was criminally prosecuted, convicted, and incarcerated in state prison in May of 1997. Subsequently, Shurman was named as a defendant in a mortgage foreclosure action commenced in March of 1998 by Atlantic Mortgage & Investment Corporation (Atlantic). Service of process was effected on Shurman by substituted service on his wife, Emily, at their home where they had resided together before Shurman's incarceration. At the time of service of process Shurman was incarcerated in state prison. Because no responsive pleadings were filed by Shurman a default was entered against him in May of 1998. Thereafter, the trial court granted Atlantic's motion for final summary judgment of foreclosure and the property was sold at a foreclosure sale on June 25, 1998, to the second mortgagee.

On January 11, 1999, Shurman filed a motion to set aside the judgment alleging that he was not properly served process in the action and, therefore, the judgment as to his interest in the property was void. Following an evidentiary hearing on Shurman's motion, the trial court concluded that Shurman's "usual place of abode" for purposes of serving process under section 48.031, Florida Statutes (1997), was the residence where he lived with his wife prior to his incarceration and where his wife continued to reside afterward. As such, the trial court found that service was perfected when a copy of the process and complaint was left with Shurman's wife at their marital residence. In light of its finding that service was valid and that Shurman had not demonstrated any meritorious defense to the foreclosure action, the trial court denied Shurman's motion to set aside the judgment.

On appeal, the Fifth District affirmed the trial court's denial of Shurman's motion to set aside the judgment. See Shurman v. Atlantic Mortgage & Inv., 740 So.2d 1221 (Fla. 5th DCA 1999). Relying on Bull v. Kistner, 257 Iowa 968, 135 N.W.2d 545 (1965), and Montes v. Seda, 157 Misc.2d 895, 599 N.Y.S.2d 401, 403 (Sup.Ct.1993), aff'd, 208 A.D.2d 388, 626 N.Y.S.2d 61 (1994), the district court agreed with the trial court's conclusion that service was made at Shurman's "usual place of abode." Shurman, 740 So.2d at 1222. The district court noted that Shurman and his wife had resided at the subject property for years prior to his incarceration and his family continued to reside there afterward. See id. at 1223. Accordingly, the court held that service was valid. See id. Shurman subsequently sought discretionary review in this Court.

ANALYSIS

The issue presented in this case is whether Shurman was properly served at his "usual place of abode" as required under section 48.031, Florida Statutes (1997). Shurman argues that since he was incarcerated at the time of service his "usual place of abode" was prison and, as such, he should have been served there in order to be afforded due process. By contrast, Atlantic asserts that an incarcerated party's "usual place of abode" is where the party resided prior to incarceration if the party's family continues to reside there.

It is well settled that the fundamental purpose of service is "to give proper notice to the defendant in the case that he is answerable to the claim of plaintiff and, therefore, to vest jurisdiction in the court entertaining the controversy." State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147 (1940); see also Klosenski

795 So.2d 954

v. Flaherty, 116 So.2d 767, 768 (Fla.1959) (quoting Heffernan); Clark v. Clark, 158 Fla. 731, 30 So.2d 170, 171 (1947) ("The purpose of constructive or substituted service is to bring knowledge of the pending litigation to the defendant in order that he may appear and guard his interests."); Gribbel v. Henderson, 151 Fla. 712, 10 So.2d 734, 739 (1942); Arcadia Citrus Growers Ass'n v. Hollingsworth, 135 Fla. 322, 185 So. 431, 434 (1938). In other words, the purpose of this jurisdictional scheme is to give the person affected notice of the proceedings and an opportunity to defend his rights

Section 48.031, Florida Statutes (1997), provides in pertinent part:

(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.

§ 48.031(1)(a), Fla. Stat. (1997). Section 48.031 expressly requires that substituted service be at the person's "usual place of abode." Id. Further, because of the importance of litigants receiving notice of actions against them, statutes governing service of process are to be strictly construed and enforced. See Schupak v. Sutton Hill Assocs., 710 So.2d 707, 708 (Fla. 4th DCA 1998); Aero Costa Rica, Inc. v. Dispatch Servs., Inc., 710 So.2d 218, 219 (Fla. 3d DCA 1998); Hauser v. Schiff, 341 So.2d 531, 531 (Fla. 3d DCA 1977).

In Heffernan, this Court defined the term "usual place of abode" as meaning the place where the defendant is actually living at the time of service. See...