Third District Court of Appeal
State of Florida
Opinion filed May 25, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1334
Lower Tribunal No. 10-35457
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The Estate of Ruth Torres,
Appellant,
vs.
U.S. Bank, N.A., etc.,
Appellee.
An appeal from a non-final order from the Circuit Court for Miami-Dade
County, Antonio Arzola, Judge.
Troy Nader (Flushing, NY), for appellant.
McGuireWoods LLP, and Sara F. Holladay, and Emily Y. Rottmann,
and Kathleen D. Kilbride (Jacksonville), for appellee.
Before FERNANDEZ, C.J., and EMAS, and MILLER, JJ.
MILLER, J.
Appellant, the Estate of Ruth Torres, appeals an order denying a
motion to quash service in a foreclosure lawsuit filed by appellee, U.S. Bank,
N.A. On appeal, the Estate contends the trial court erred in failing to conduct
an evidentiary hearing. Ordinarily, a party contesting service of process is
entitled to an evidentiary hearing, even in the absence of a request for the
same, “[w]here the allegations of the motion to quash service of process, if
true, would entitle the movant to relief.” Talton v. CU Members Mortg.,
126
So. 3d 446, 447 (Fla. 4th DCA 2013); see Travelers Ins. Co. v. Davis,
371
So. 2d 702, 703 (Fla. 3d DCA 1979); Lilly v. Bank of Am., N.A.,
267 So. 3d
452, 452 (Fla. 4th DCA 2019). Here, however, the sum of the evidence
submitted by way of affidavit to the trial court as clear and convincing
consisted of self-serving allegations by the personal representative that she
did not see or speak to the process server, and she discovered the process
documents in her mailbox. Although she contends this testimony was
corroborated by a neighbor, the neighbor’s affidavit falls short of any such
conclusion. Instead, the neighbor’s affidavit merely indicates that, on the
morning service was supposedly effectuated, an unknown person banged
on the neighbor’s windows and then drove away. This showing was
substantially weaker than that found to be insufficient as a matter of law to
impeach the return of service in several decisions, including Slomowitz v.
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Walker, 429 So. 2d 797 (Fla. 4th DCA 1983) and Jefferson Bank & Trust v.
Levy,
498 So. 2d 450 (Fla. 3d DCA 1986). In the former decision, in addition
to the denial of service of process by the defendant, there was affirmative
testimony the defendant had never visited the location where she was
purportedly served. Slomowitz, 429 So. 2d at 800. In the latter case, the
defendant contended she had not been served and was living elsewhere,
and her father testified there was an unsuccessful attempt to serve her at his
home. Levy,
498 So. 2d at 451. On this authority, we conclude the proffered
testimony, even if accepted as true, would be insufficient as a matter of law
to invalidate the facially valid return of service. See Slomowitz, 429 So. 2d
at 800; Levy,
498 So. 2d at 451; Lazo v. Bill Swad Leasing Co.,
548 So. 2d
1194, 1195 (Fla. 4th DCA 1989); Fla. Nat’l Bank v. Halphen,
641 So. 2d 495,
496 (Fla. 3d DCA 1994); Telf Corp. v. Gomez,
671 So. 2d 818, 819 (Fla. 3d
DCA 1996).
Affirmed.
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