JAIME ALONZO GAMBOA AND MARINA GAMBOA, APPELLANTS,
v.
IONA LAVERNE JONES, APPELLEE
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Appellants challenged a default judgment entered against them, arguing the trial court lacked jurisdiction because service of process was ineffective. The Florida District Court of Appeal reversed, holding that substituted service on a temporary visitor does not satisfy statutory requirements for valid service.
The court held that: (1) service on a person visiting for only ten days does not satisfy the statutory requirement that process be left with someone 'residing' at the defendants' usual place of abode, rendering service ineffective and precluding in personam jurisdiction; and (2) when jurisdiction is not obtained, defendants are not required to demonstrate a meritorious defense to be entitled to relief.
[1] Substituted service of process requires strict compliance with statutory requirements, including leaving a copy of the process with a person residing in the defendant's u…
[2] A person visiting a defendant for a limited period, such as ten days, does not satisfy the statutory requirement of "residing" in the defendant's usual place of abode for…
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Join FLexlaw to unlock all legal intelligence“where, as here, the sole evidence before the trial court revealed that the person upon whom process was served did not reside with the defendants, but rather was visiting with them for a ten-day period, the requirement of Section 48.031(1), Florida Statutes (1983), that a copy of the process be left with a person 'residing' in the usual place of abode of the defendants was not met, the service was thus ineffective, and no in personam jurisdiction over the defendants was obtained”
Establishes the court's primary holding regarding ineffective service on temporary visitors
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Join FLexlaw to unlock all legal intelligenceProcess was served on a person at the defendants' residence who was visiting for a ten-day period. The trial court denied the defendants' motion to se…
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PER CURIAM.
The appellants, defendants below, appeal from an order denying their motion to set aside a default entered against them and an order denying their motion to quash the service of process upon them. We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).
See Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So. 2d 190 (Fla.1982), approving Pedro Realty, Inc. v. Silva, 392 So. 2d 1005 (Fla. 3d DCA 1981), affd, 411 So. 2d 872 (Fla.1982).
Cognizant of the admonition that statutes governing substituted service of process must be strictly complied with, see Herskowitz v. Schwarz & Schiffrin, 411 So. 2d 1359 (Fla. 3d DCA 1982); Hauser v. Schiff 341 So. 2d 531 (Fla. 3d DCA 1977), we reverse the orders under review upon a holding that (1) where, as here, the sole evidence before the trial court revealed that the person upon whom process was served did not reside with the defendants, but rather was visiting with them for a ten-day period, the requirement of Section 48.031(1), Florida Statutes (1983), that a copy of the process be left with a person “residing” in the usual place of abode of the defendants was not met, the service was thus ineffective, and no in personam jurisdiction over the defendants was obtained, compare Couts v. Maryland Casualty Co., 306 So. 2d 594 (Fla. 2d DCA 1975), with Sangmeister v. McElnea, 278 So. 2d 675 (Fla. 3d DCA 1973) 1; and (2) where, as here, no jurisdiction over the defendants was obtained, the defendants were not required to demonstrate a meritorious defense to the allegations of the complaint in order to be entitled to relief. See Hyman v. Canter, 389 So. 2d 322 (Fla. 3d DCA 1980); Mac Organization, Inc. v. Harry Rich Corp., 374 So. 2d 81 (Fla. 3d DCA 1979). Reversed and remanded with directions to vacate the default and quash service of process.
. Both Couts and Sangmeister were decided under the predecessor to Section 48.031(1), which required that substituted service be made by leaving a copy at the defendant’s "usual place of abode with some person of the family over fifteen years of age _” (emphasis supplied).
The emphasized words having been construed to require residence in the household rather than kinship with the person to be served, see Pyles v. Beall, 37 Fla. 557, 20 So. 778 (1896); Couts v. Maryland Casualty Co., 306 So. 2d 594, the statute was apparently changed to its present form to reflect that construction. Thus, the holding in Couts that a relative visiting for a few days is not a person of the family is effectively a holding that such a short-term visitor is not a person residing in the usual place of abode of the defendant, and the holding in Sangmeister that a relative visiting for four months is a person of the family is effectively a holding that such a long-term visitor is a resident.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Magazine v. Bedoya, 475 So. 2d 1035 (Fla. 3d DCA 1985)…ong enough that she may properly be regarded as “a person residing therein” under section 48.-031(1). Compare Sangmeister v. McElnea, 278 So. 2d 675 (Fla. 3d DCA 1973) (four month visit establishes residing therein requirement) with Gamboa v. Jones, 455 So. 2d 613 (Fla. 3d DCA 1984) (ten day visit [*1036] does not meet the requirement of residency).1 Second, there was no evidence that Ms. Oakford was not informed of the contents of the papers served. Consequently, Magazine has failed to show, by clear and co…
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Bennett v. Christiana Bank & Tr. Co., 50 So. 3d 43 (Fla. 3d DCA 2010)…nsive pleading. Where no in personam jurisdiction is obtained over a defendant, the defendant is not required to demonstrate a meritorious defense to set aside the default. Ubilla v. L & W Supply, 637 So. 2d 994 (Fla. 3d DCA 1994); Gamboa v. Jones, 455 So. 2d 613 (Fla. 3d DCA 1984). The trial court should not have required Ms. Bennett to demonstrate a meritorious defense to the action once it became clear that the summons and complaint were never properly served. Finally, an examination of the final judgmen…
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Baker v. Stearns Bank, N.A., 84 So. 3d 1122 (Fla. 2d DCA 2012)…on residing in the usual place of abode of the person to be served. Couts v. Md. Cas. Co., 306 So. 2d 594 (Fla. 2d DCA 1975) (holding that a stay of a few days is insufficient to qualify that visitor to receive substituted service); Gamboa v. Jones, 455 So. 2d 613 (Fla. 3d DCA 1984) (holding the same for a ten-day visitor). Having had its prima facie showing of regular substituted service rebutted, it was incumbent upon the Bank to provide competing evidence to overcome Mr. Baker’s showing of substituted ser…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Doctor's Hosp. OF Hollywood, Inc. v. Hunter W. Madison, 411 So. 2d 190 (Fla. 1982)
- Hauser v. Schiff, 341 So. 2d 531 (Fla. 3d DCA 1977)
- Herskowitz v. Schwarz & Schiffrin, 411 So. 2d 1359 (Fla. 3d DCA 1982)
- Pedro Realty, Inc. v. Silva, 392 So. 2d 1005 (Fla. 3d DCA 1981)
- The MAC Org., Inc. v. Harry Rich Corp., 374 So. 2d 81 (Fla. 3d DCA 1979)
- THE Florida BAR v. Ethier, 411 So. 2d 872 (Fla. 1982)
- Angeline R. Couts v. Md. Cas. Co., 306 So. 2d 593 (Fla. 2d DCA 1975)
- Sangmeister v. McELNEA, 278 So. 2d 675 (Fla. 3d DCA 1973)
- Hyman v. Goldie Canter, 389 So. 2d 322 (Fla. 3d DCA 1980)
- Pyles v. Beall, 37 Fla. 557 (Fla. 1896)