U.S. Tobacco Co. v. Hartford Acc. & Indem. Co.

• Court: Florida District Court of Appeals
• Writing for the Court: OTT
• Citation: U.S. Tobacco Co. v. Hartford Acc. & Indem. Co., 444 So.2d 81 (Fla. App. 1984)
• Decision Date: 27 January 1984
• Docket Number: No. 83-1709,83-1709
• Parties: U.S. TOBACCO COMPANY, Appellant, v. The HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellee.

Page 81

444 So.2d 81

U.S. TOBACCO COMPANY, Appellant, v. The HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellee.

No. 83-1709.

District Court of Appeal of Florida Second District.

Jan. 27, 1984.

Karl J. Brandes of Holland & Knight, Tampa, for appellant.

Carl G. Rassler, Tampa, for appellee.

OTT, Chief Judge.

Appellant U.S. Tobacco Company appeals the denial of a motion to set aside a default final judgment entered in favor of appellee. We reverse.

Appellant, a foreign corporation, was a defendant in a suit in which appellee was the plaintiff. Appellee served appellant by serving a copy of the original summons and complaint on the Secretary of State of the State of Florida in accordance with section 48.181(1), Florida Statutes (1981). ¹ Appellee did not comply with section 48.161(1) ² which requires mailing by registered or certified mail a notice of service and copy of the process to the defendant or personally serving the defendant. Appellant failed to file a responsive pleading, and a default final judgment was entered April 5, 1982. A typed notation on the bottom of the final judgment indicated that a copy was "furnished" to appellant. ³

On April 18, 1983, appellant received a copy of the judgment from appellee along with notification that appellee was instituting proceedings to collect. On May 18, 1983, appellant filed its motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b), alleging that the judgment was void due to defective service of process. The trial court denied the motion. No findings of fact appear in the trial court's order, and the hearing on the motion was not reported.

Statutory provisions for substituted service of process must be strictly construed. George Fischer, Ltd. v. Plastiline, Inc., 379 So.2d 697 (Fla. 2d DCA 1980). If a plaintiff chooses substituted service under section 48.181(1), he is required to comply with one of the alternative methods in section 48.161. P.S.R. Associates v. Artcraft-Heath, 364 So.2d 855 (Fla. 2d DCA 1978).

Appellee concedes that it failed to comply with section 48.161. It argues that appellant failed to file its motion for relief within a reasonable time after receiving a copy of the final judgment. Appellee contends that the notation on the final judgment that appellant was furnished a copy is sufficient proof that appellant was aware of the judgment for more than a year prior to filing the motion for relief from judgment.

The appearance of appellant's name at the bottom of the final judgment is insufficient, standing alone, to support a finding that appellant received a copy of the final judgment shortly after its entry. There is no evidence in the record that appellant had knowledge of the final judgment prior to receipt of appellee's April 18, 1983 letter. Therefore, at the time of the hearing on appellant's rule 1.540(b) motion, the record showed that service of process was defective and that appellant otherwise had no notice of the proceedings until shortly before filing the motion for relief from judgment. We accordingly reverse the denial of appellant's motion for relief from judgment. The public policy of this state is well settled that default judgments are generally not favored by the courts, and a court's discretion should be liberally exercised and all reasonable doubt resolved in favor of granting applications for relief so as to permit a determination of the controversy upon the merits. See, e.g., Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So.2d 540 (Fla. 3d DCA 1972).

REVERSED and REMANDED for further proceedings.

BOARDMAN and DANAHY, JJ., concur.

1 48.181 Service on nonresident engaging in business in state

(1) The acceptance by any person or persons, individually, or associated together as a copartnership or any other...