Murphy v. Cach, LLC

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
LAURA MURPHY,
Appellant,
v. Case No. 5D17-2384
CACH, LLC, MICHAEL MURPHY
AND ERROL EQUESTRIAN
CENTER, INC.,
Appellees.
________________________________/
Opinion filed November 9, 2017
Non-Final Appeal from the Circuit Court
for Orange County,
John E. Jordan, Judge.
Gary S. Israel, Orlando, for Appellant.
Bryan Manno, Ashley L. Moore, and Tina D.
Gayle, of Federated Law Group, PLLC,
Juno Beach, for Appellee, Cach, LLC.
No Appearance for other Appellees.
LAMBERT, J.
Appellant, Laura Murphy, appeals the order denying her motion to quash service
of process. Appellant asserts that the trial court never acquired personal jurisdiction over
her because the amended affidavit of substitute service did not strictly comply with section
48.21, Florida Statutes (2015), as it does not provide the name of the person upon whom
service was made. We agree and, as explained below, reverse and remand for further
proceedings.
Appellant was sued for damages by Appellee, Cach, LLC, for breach of a personal
guaranty on a debt owed by a codefendant. The amended affidavit of service filed in this
case states that substitute service of process was obtained upon Appellant when a copy
of the summons and a copy of the complaint with exhibits was personally left with “John
Doe,” who was described in the affidavit of service as a “black-haired white male” and
Appellant’s “co-resident.” The affidavit also relates that service was obtained at
Appellant’s usual place of abode in Apopka, Florida. Appellant timely moved to quash
service of process and, following a hearing at which no evidence was received, the trial
court entered the unelaborated order now on appeal.
Where, as here, the trial court’s ruling on a motion to quash service of process is
based on issues of law, our review on appeal is de novo. Davidian v. JP Morgan Chase
Bank, 178 So. 3d 45, 47 (Fla. 4th DCA 2015) (citing Robles-Martinez v. Diaz, Reus &
Targ, LLP, 88 So. 3d 177, 179 (Fla. 3d DCA 2011)). Further, “[s]tatutes governing service
of process must be strictly construed and enforced.” Koster v. Sullivan, 160 So. 3d 385,
388 (Fla. 2015) (citing Shurman v. Atl. Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla.
2001)).
Appellee, as the party seeking to invoke the jurisdiction of the court over a party,
bears the burden of proving proper service. Id. at 389. To that end, “[t]he return of service
is the instrument a court relies on to determine whether jurisdiction over an individual has
been established.” Id. at 388 (citing Klosenski v. Flaherty, 116 So. 2d 767, 768-69 (Fla.
1959) (holding that an officer’s return of service “is merely evidence to enable the trial
2
judge to conclude that the court has acquired jurisdiction of the person of the defendant,
or has not done so, as the case may be”)). Thus, “[i]f . . . the return is defective on its
face, [then] it ‘cannot be relied upon as evidence that the court acquired jurisdiction over
the person of the defendant.’” Klosenski, 116 So. 2d at 769 (quoting Gibbens v. Pickett,
12 So. 17, 18 (Fla. 1893)).
The dispositive question in the present case is whether the amended affidavit of
service of process is regular or valid on its face. Section 48.21 governs the return of
execution of process. This statute provides in pertinent part:
(1) 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. . . .
(2) A failure to state the facts or to include the signature
required by subsection (1) invalidates the service, but the
return is amendable to state the facts or to include the
signature at any time on application to the court from which
the process issued. On amendment, service is as effective as
if the return had originally stated the omitted facts or included
the signature. . . .
§ 48.21, Fla. Stat. (2015). Therefore, for a return of service of process to be facially valid,
it must include the following four facts: (1) the date and time the pleading is received by
the process server; (2) the date and time that process is served; (3) the manner of service,
and (4) the name of the person served and, if served in a representative capacity, the
position occupied by the person. Koster, 160 So. 3d at 389 (citing Re-Emp’t Servs., Ltd.
v. Nat’l Loan Acquisitions Co., 969 So. 2d 467, 472 (Fla. 5th DCA 2007)).
3
Here, the amended affidavit of service of process is facially deficient under section
48.21 because it does not contain the name of the person served. Providing a physical
description of “John Doe” in lieu of providing the individual’s name is insufficient
compliance with section 48.21. Vives v. Wells Fargo Bank, N.A., 128 So. 3d 9, 15 (Fla.
3d DCA 2012); see also Gonzalez v. Totalbank, 472 So. 2d 861, 864 (Fla. 3d DCA 1985)
(holding that return of service indicating that a Jane Doe was served was defective under
section 48.21 and the service was invalid). Consequently, Appellee never met its initial
burden of establishing proper service of process, personal jurisdiction over Appellant has
not been shown, and the trial court erred in denying Appellant’s motion to quash.
Finally, we reject Appellee’s argument that Appellant waived her objection to
personal jurisdiction based upon her filing a motion to dismiss and a contemporaneously
filed motion for protective order. Appellant filed these motions after the trial court entered
its written order denying Appellant’s motion to quash and ordered her to answer
Appellee’s complaint and to respond to the outstanding discovery. A defendant who
asserts a timely challenge to personal jurisdiction may defend the matter on the merits
without waiving his or her personal jurisdiction objection, as long as the defendant does
not seek affirmative relief. Berne v. Beznos, 819 So. 2d 235, 237-38 (Fla. 3d DCA 2002).
Here, Appellant timely challenged jurisdiction and did not seek affirmative relief.
Accordingly, we reverse the trial court’s order denying Appellant’s motion to quash
and remand for further proceedings.
REVERSED and REMANDED.
SAWAYA and EVANDER, JJ., concur.
4