GLASFORY WILLOUGHBY, PETITIONER,
v.
SEESE REALTY INC., AND BROCATO AND COMPANY, INC., RESPONDENTS
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Willoughby sought certiorari to quash a circuit court order affirming a default judgment in a breach of contract suit. The court granted certiorari, finding that service of process was improper under Florida law, making the judgment void and requiring vacation of the default.
The judgment is void because service of process was improper. Under Rule 1.540(b), when a petitioner can demonstrate that a judgment is void, he is not required to also show excusable neglect. The motion to vacate the default and judgment should have been granted.
[1] A judgment is void and subject to vacation under Florida Rule of Civil Procedure 1.540(b) when service of process is improper.
[2] Improper service of process occurs when a summons and complaint are left at a defendant's door without being delivered to the defendant or another resident, or without in…
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Join FLexlaw to unlock all legal intelligence“A review of the return of service in this case demonstrates that the summons and complaint were not delivered to petitioner or anyone else but were simply left at petitioner's door. This was improper service and the judgment based thereon should have been set aside.”
Establishes that the service was defective because the documents were not delivered to petitioner or left with someone at his residence, violating statutory requirements.
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Join FLexlaw to unlock all legal intelligenceWilloughby was sued in County Court for a brokerage commission on November 11, 1980. He was served by the Sheriff by leaving a summons at his door. He…
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BERANEK, Judge.
Petitioner seeks a writ of certiorari quashing the order of the Circuit Court which affirmed an order of the County Court denying his motion to vacate a default. We grant certiorari.
A suit for a brokerage commission was filed in County Court on November 11, 1980. Petitioner was served by the Sheriff leaving a summons at his door. He failed to file an answer and the clerk entered a default against him on March 18, 1981. A final judgment was entered on June 3,1981. Thereafter, petitioner served a motion to vacate the default contending that the judgment was void because service was improper. The County Court denied this motion, as well as the subsequent motion for rehearing. Petitioner appealed to the Circuit Court, which affirmed. Petitioner now seeks review by way of certiorari.
Florida Rule of Civil Procedure 1.540(b) gives five reasons for relief from judgment, one being that the judgment or decree is void. Petitioner asserts that the judgment is void because service of process was improper. Section 48.031(1), Florida Statutes (1981), provides for service by delivering a copy of the summons and complaint to the person to be served, or by leaving the copies at his usual place of abode with any person residing therein who is 15 years of age or older, and informing the person of their contents. A review of the return of service in this case demonstrates that the summons and complaint were not delivered to petitioner or anyone else but were simply left at petitioner’s door. This was improper service and the judgment based thereon should have been set aside. Respondents fail to address the issue of defective service in their response to the petition. Instead, they concentrate on petitioner’s failure to adequately prove mistake, inadvertence, surprise or excusable neglect. Although most motions to vacate a default are based on excusable neglect, Rule 1.540 does provide other means of vacating a judgment. If petitioner can demonstrate, as was done here, that the judgment is void, he is not also compelled to show there was excusable neglect. We thus conclude that the Circuit Court deviated from the essential requirements of law in affirming the County Court’s erroneous rulings. The Circuit Court’s affirmance is vacated and the matter remanded to the Circuit Court with directions to remand it to the County Court with instructions to grant the motion to vacate the default and judgment.
CERTIORARI GRANTED.
DOWNEY and HERSEY, JJ., concur.
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Steffens v. Steffens, 593 So. 2d 1156 (Fla. 2d DCA 1992)…out such personal jurisdiction, those provisions are void and unenforceable against appellant and were, therefore, the proper subject for appellant’s motion for relief from judgment pursuant to Rule 1.540(b)(4). See Willoughby v. Seese Realty, Inc., 421 So. 2d 691 (Fla. 4th DCA 1982). The provisions which we find void and unenforceable against appellant for lack of personal jurisdiction over appellant are paragraphs three and eight of the final judgment of dissolution. Paragraph three provides: 3. The sum…
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Castro v. The Charter Club, Inc., 114 So. 3d 1055 (Fla. 3d DCA 2013)…& Loan Ass’n, 489 So. 2d 758, 759 (Fla. 3d DCA 1986). Moreover, where a judgment is void due to defective service, the party seeking to vacate such a judgment need not show any other basis for vacating the judgment. Willoughby v. Seese Realty Inc., 421 So. 2d 691 (Fla. 4th DCA 1982). Validity of Service Although the Florida statutes allow for constructive service of process, Chapter 49 sets forth specific procedures that must be strictly followed in order to establish personal jurisdiction through construc…
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Eyster v. Chapnick, 530 So. 2d 1110 (Fla. 4th DCA 1988)…PER CURIAM. Service of process upon Eyster was void because of noncompliance with section 48.-031(1), Florida Statutes (1985). We therefore reverse on authority of Willoughby v. Seese Realty, Inc., 421 So. 2d 691 (Fla. 4th DCA 1982); Herskowitz v. Schwarz & Schiffrin, 411 So. 2d 1359 (Fla. 3d DCA 1982); Cullimore v. Barnett Bank of Jacksonville, 386 So. 2d 894 (Fla. 1st DCA 1980); see also Carlini v. State Dept. of Legal Affairs, 521 So. 2d 254 (Fla. 4th DCA…
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