THE TRAVELERS INSURANCE COMPANY, APPELLANT,
v.
JAMES A. DAVIS, II, APPELLEE
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Travelers Insurance Company appealed a trial court order quashing its service of process against James A. Davis II in a fraud suit. The appellate court reversed, holding that the trial court erred by denying an evidentiary hearing and that Davis must demonstrate service was invalid by clear and convincing evidence before a motion to quash could be granted.
The trial court erred by failing to accord the parties an evidentiary hearing on the sufficiency of service of process. The defendant must demonstrate the invalidity of service by clear and convincing evidence before a motion to quash can be granted. An evidentiary hearing is required to ensure adequate consideration of such motions.
[1] A trial court errs by denying an evidentiary hearing on the sufficiency of service of process when the service is not facially defective.
[2] A party seeking to quash service of process must demonstrate its invalidity by clear and convincing evidence.
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Join FLexlaw to unlock all legal intelligence“The trial court erred when it failed to accord the parties an evidentiary hearing on the sufficiency of process.”
Establishes the core error—the trial court must hold a hearing before granting a motion to quash service.
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Join FLexlaw to unlock all legal intelligenceTravelers filed suit against Davis and a co-defendant alleging fraud and deceit related to insurance policies. Travelers was unable to personally serv…
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KEHOE, Judge.
The Travelers Insurance Co., plaintiff below, takes this appeal pursuant to Fla.R. App.P. 9.130 from a non-final order quash ing its attempted service of process upon the appellee. We reverse and remand for an evidentiary hearing on the issue of sufficient service of process.
Travelers filed suit against the appellee, James A. Davis, II and a co-defendant, alleging fraud and deceit in an effort to obtain money and property from Travelers on certain insurance policies. Travelers was unsuccessful in attempting to personally serve the appellee on several occasions, both in Dade County, Florida, where the incident arose, and in North Carolina, where it was believed that appellee had a summer home and interests in real estate. Travelers then attempted substituted service of process by: (a) serving the appellee’s father at the father’s address in Dade County;1 and (b) by perfecting service upon the Secretary of State pursuant to Section 48.181, Florida Statutes (1977), after counsel for Travelers filed an affidavit stating that the appellee could not be personally served, despite repeated efforts, because he was believed to be concealing himself.
Appellee, through counsel, made a special appearance2 and moved to quash on the ground of insufficiency of service of process. The trial court granted the motion and quashed the service of process. The order quashing service also denied Travelers’ request for an evidentiary hearing on the issue of sufficient service of process.
The trial court erred when it failed to accord the parties an evidentiary hearing on the sufficiency of process. An examination of the record persuades us that service of process was not defective on its face. The appellee must be able to demonstrate the invalidity of the service of process by clear and convincing evidence before the motion to quash could be granted. Livingston v. Fein, 359 So. 2d 25 (Fla.3d DCA 1978); Winky’s Inc. v. Francis, 229 So. 2d 903 (Fla.3d DCA 1969); Rumpf v. Freedman, 118 So. 2d 237 (Fla.3d DCA 1960); Mitchell v. Brown, 114 So. 2d 178 (Fla.1st DCA 1959); rev’d on other grounds, 119 So. 2d 385 (Fla.1960). To insure adequate consideration of the motion, an evidentiary hearing is required in this instance.
The order quashing service of process is reversed and this cause is remanded for an evidentiary hearing on the validity of service of process upon the appellee.
Reversed and remanded.
. The return of the service of process stated that the appellee’s father was served at appel-lee’s “usual place of abode.” The appellee disputes that this was his usual place of abode.
. Appellee’s appearance was confined solely to the question of whether the trial court had jurisdiction over him. See 1 Fla.Jur.2d Actions §§ 88 90 (1977).
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Chi Luu Linville v. Home Sav. OF Am., FSB, 629 So. 2d 295 (Fla. 4th DCA 1993)…s required by section 48.031, Florida Statutes (1991). See Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983). Appellant is therefore entitled to an evidentiary hearing on her motion to quash service of process. See Travelers Ins. Co. v. Davis, 371 So. 2d 702 (Fla. 3d DCA 1979). Accordingly, we reverse the trial court’s order denying appellant’s motion to quash service of process and remand for proceedings consistent with this opinion. REVERSED and REMANDED. DELL, C.J., GLICKSTEIN and FARMER, JJ., con…
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Fern, Ltd. v. Rd. Legends, Inc., 698 So. 2d 364 (Fla. 4th DCA 1997)…s required by section 48.031, Florida Statutes (1991). See Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983). Appellant is therefore entitled to an evidentiary hearing on her motion to quash service of process. See Travelers Ins. Co. v. Davis, 371 So. 2d 702 (Fla. 3d DCA 1979). Id. at 296 (footnote omitted). We agree that appellees could not rebut appellant’s affidavit without an evidentiary hearing. We therefore reverse the order denying appellant’s motion to dismiss appel-lees’ original complaint an…
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Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Winky's, Inc. v. Ivy M. Francis, 229 So. 2d 903 (Fla. 3d DCA 1969)
- Mack Mitchell and wife v. Brown, 114 So. 2d 178 (Fla. 1st DCA 1959)
- Brown v. Mack Mitchell and wife, 119 So. 2d 385 (Fla. 1960)
- Rumpf v. Abe Freedman and Molly Freedman, 118 So. 2d 237 (Fla. 3d DCA 1960)
- Ira Livingston and Lillian Livingston v. Fein, 359 So. 2d 25 (Fla. 3d DCA 1978)
- Smith v. Butler, 118 So. 2d 237 (Fla. 3d DCA 1960)