Coutts v. Sabadell United Bank, N.A. ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed September 7, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-418
Lower Tribunal No. 15-3834
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Sean M. Coutts,
Appellant,
vs.
Sabadell United Bank, N.A.,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Beatrice Butchko, Judge.
Michael Jay Wrubel (Davie), for appellant.
Paul A. Humbert, for appellee.
Before EMAS, LOGUE and SCALES, JJ.
EMAS, J.
Sean M. Coutts, the defendant below, appeals from the trial court’s order
denying his motion to set aside a default and final judgment, and to quash service
of process. We affirm.
Sabadell United Bank, N.A., the plaintiff below, filed and served its
complaint. When Coutts did not respond to the complaint, Sabadell obtained a
clerk’s default and, subsequently, a default final judgment. Thereafter, Coutts filed
a verified motion to set aside the default and final judgment, and to quash service
of process, contending that Sabadell failed to properly effectuate service of process
under the substitute service provisions of section 48.031(6)(a) Florida Statutes
(2015), which provides:
If the only address for a person to be served which is discoverable
through public records is a private mailbox, a virtual office, or an
executive office or mini suite, substitute service may be made by
leaving a copy of the process with the person in charge of the private
mailbox, virtual office, or executive office or mini suite, but only if
the process server determines that the person to be served maintains a
mailbox, a virtual office, or an executive office or mini suite at that
location.
Coutts scheduled his motion for a thirty-minute, special-set evidentiary
hearing before the trial court. However, neither Coutts nor his counsel of record
attended the hearing. Instead, a “coverage” attorney, who had not filed a notice of
appearance as co-counsel, attended the hearing on behalf of Coutts.1
1 Appellant’s counsel in this appeal did not represent Coutts in the trial court.
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Nevertheless, the hearing proceeded as scheduled. When the trial court
inquired of coverage counsel if he was prepared to present evidence, coverage
counsel stated to the court: “This can be decided as a matter of law.” At the
conclusion of the hearing, the trial court entered an order denying Coutts’s motion.
On appeal, Coutts maintains, inter alia, that the trial court erred because it
failed to afford the appellant an evidentiary hearing. This argument is without
merit, as Coutts’s coverage counsel affirmatively advised the court that no
evidentiary hearing was necessary and that the issue could be decided as a matter
of law. See Pope v. State, 441 So. 2d 1073, 1076 (Fla. 1983) (holding that “[a]
party may not invite error and then be heard to complain of that error on appeal”);
Behar v. Southeast Banks Trust Co., N.A., 374 So. 2d 572 (Fla. 3d DCA 1979).
Coutts further contends that Sabadell failed to establish proper service of
process because the return of service did not include the necessary information to
show compliance with the provisions of section 48.031(6)(a), which permits
substitute service on a private mailbox “only if the process server determines that
the person to be served maintains a [private] mailbox . . . at that location.”
However, the premise of Coutts’s argument has already been considered and
rejected by the Florida Supreme Court in Koster v. Sullivan, 160 So. 3d 385, 389
(Fla. 2015), wherein the court addressed whether “the specifics regarding the
manner of service as set forth in section 48.031 must be indicated in a valid return
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of service.” Id. at 390. In rejecting this argument, the court acknowledged that the
return of service of process provision (section 48.21(1), Florida Statutes (2015))2,
clearly and unambiguously delineates what information must be contained in a
valid return of service. The court noted that “the language of section 48.21 does
not expressly incorporate section 48.031, nor does it refer to the factors contained
within section 48.031(1)(a).” The court refused to engraft the provisions of section
48.031 onto section 48.21, acknowledging it “has no power to ‘extend, modify, or
limit [the section’s] express terms or its reasonable and obvious implications’ by
adding requirements not present in the statute.” Id. at 389-90 (quoting Am.
Bankers Life Assur. Co. of Fla. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA
1968)).
Accordingly, Koster held that, to be considered regular on its face, a return
of service must contain the information set forth in section 48.21, but need not
contain information showing compliance with section 48.031(1)(a).3 Coutts has
2 Section 48.21(1) provides:
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. The
return-of-service form must be signed by the person who effects the
service of process. However, a person employed by a sheriff who
effects the service of process may sign the return-of-service form
using an electronic signature certified by the sheriff.
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failed to distinguish Koster or to persuade us that its analysis in the context of
challenge under section 48.031(1)(a) is inapplicable in the context of a challenge
under section 48.031(6)(a). Applying Koster, we conclude that the return of
service complied with section 48.21 and contained the requisite information as set
forth in that provision.
The Koster court reaffirmed the initial burden placed on a plaintiff to
establish proper service:
The party who seeks to invoke the court’s jurisdiction bears the
burden of proving proper service. The burden requires the party to
demonstrate that the return of service is, under section 48.21, facially
valid or regular on its face. A return of service that is regular on its
face must include the statutory factors contained in section 48.21.
Koster, 160 So. 3d at 389. Importantly, a “return of service that is regular on its
face is presumed to be valid absent clear and convincing evidence presented to the
contrary.” Telf Corp. v. Gomez, 671 So. 2d 818, 818 (Fla. 3d DCA 1996).
Coutts concedes that the return of service was regular on its face, containing
the information required by section 48.21. Because the return of service was
3 Although Koster involved a different subsection of section 48.031, the court’s
analysis and holding are fully applicable to the instant case. Section 48.031(1)(a)
provides:
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. Minors who are or
have been married shall be served as provided in this section.
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regular on its face, it was presumptively valid, shifting to Coutts the burden of
establishing, by clear and convincing evidence, that service of process was invalid.
Koster, 160 So. 3d at 389; Morgan Stanley Smith Barney, LLC v. Gibraltar Private
Bank & Trust Co., 162 So. 3d 1058, 1060 (Fla. 3d DCA 2015). The trial court
determined that Coutts failed to meet his burden, and we find no error in that
determination. The other issues raised by Coutts were either waived or are
otherwise without merit.
Affirmed.
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