JOEL R. MAGAZINE, APPELLANT,
v.
ARTURO SIMON BEDOYA, APPELLEE
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Magazine appealed a nonfinal order denying his motion to dismiss and quash service of process. The court affirmed, holding that service on his mother-in-law at his residence satisfied statutory requirements and that Magazine failed to overcome the presumption of valid service by clear and convincing evidence.
The court held that a six-week stay was sufficient to establish that Oakford was 'a person residing therein' under the statute, and that Magazine failed to overcome the presumption of valid service by clear and convincing evidence because Oakford testified she was informed of the contents and her uncertainty about the exact nature of the documents did not meet the clear and convincing standard.
[1] A presumption of valid service of process arises from a return of service that is regular on its face.
[2] A party challenging service of process must overcome the presumption of valid service by clear and convincing evidence.
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Join FLexlaw to unlock all legal intelligence“A presumption of valid service arises from evidence of a return of service which is regular on its face [...] The party challenging the service must overcome that presumption by clear and convincing evidence.”
Establishes the legal standard that Magazine must satisfy to successfully challenge service of process
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Join FLexlaw to unlock all legal intelligenceProcess was served on Magazine's mother-in-law, Agnes Oakford, at Magazine's usual place of abode. Oakford was staying at Magazine's home for six week…
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PER CURIAM.
Magazine appeals a nonfinal order denying his motion to dismiss and quash service of process. We affirm.
The return of service in this case indicates that process was served on Magazine’s mother-in-law, Agnes Oakford, at Magazine’s usual place of abode and that she was informed of. the contents of the papers. Magazine challenges the service arguing that: (1) his mother-in-law was not a “person residing therein” under section 48.031(1), Florida Statutes (Supp.1984) because she was staying at his home for only six weeks while her broken leg healed; and (2) his mother-in-law’s testimony that she did not know exactly what the papers were overcame the presumption of valid service by demonstrating that she was not informed of the contents thereof. We disagree.
A presumption of valid service arises from evidence of a return of service which is regular on its face. Klosenski v. Flaherty, 116 So. 2d 767 (Fla.1959). The party challenging the service must overcome that presumption by clear and convincing evidence. Montano v. Montano, 472 So. 2d 1377 (Fla. 3d DCA 1985); Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983). We find that Magazine has failed to meet that burden in this case.
First, Ms. Oakford’s six-week stay at Magazine’s residence was long 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 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 convincing evidence, that the service was defective.2 Accordingly, the order denying his motion is affirmed.
Affirmed.
. We note also that Ms. Oakford responded affirmatively to the process server’s query, “Do you live here?".
. Ms. Oakford’s testimony that she did not know “just exactly what the papers were” does not establish that she was not informed of their contents since one can be informed of the contents of documents [suit papers] and not know “exactly” what they are [process and pleadings], (emphasis added) Even if such testimony does in some way negate the presumption arising from the return of service, it falls far short of meeting the clear and convincing standard necessary to overcome the presumption. See Slomowitz; see also Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So. 2d 558 (Fla. 3d DCA 1981) (testimony of the recipient and the process server established a failure to meet the requirement that the person served with papers be informed of their contents).
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Lazo v. Bill Swad Leasing Co., 548 So. 2d 1194 (Fla. 4th DCA 1989)…reverse. The appellee admits that the return is regular on its face. As appellant points out, a return of service which is regular on its face is presumed valid unless clear and convincing evidence is presented to the contrary. Magazine v. Bedoya, 475 So. 2d 1035 (Fla. 3d DCA 1985). Furthermore, a defendant cannot impeach a summons by simply denying service, but must present “clear and convincing evidence” to corroborate his denial of service. Slomowitz v. Walker, 429 So. 2d 797, 799 (Fla. 4th DCA 1983). Cle…
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Baker v. Stearns Bank, N.A., 84 So. 3d 1122 (Fla. 2d DCA 2012)
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Dysart v. AN Ultimate Pool Serv. & Repair, Inc., 536 So. 2d 387 (Fla. 3d DCA 1989)…videntiary hearing, that service was valid. Although conflicting the evidence is sufficient to support the court’s finding. It was the appellants’ burden to establish by clear and convincing evidence that service was invalid. See Magazine v. Bedoya, 475 So. 2d 1035 (Fla. 3d DCA 1985). Because the appellants failed to file or serve any papers a default on the issue of liability was properly entered. See American Republic Ins. Co. v. Westchester Gen. Hosp., 414 So. 2d 1163 (Fla. 3d DCA 1982). Nevertheless, it…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Slomowitz v. E.O. Walker and Geneva Walker, 429 So. 2d 797 (Fla. 4th DCA 1983)
- Klosenski v. Flaherty, 116 So. 2d 767 (Fla. 1959)
- Sangmeister v. McELNEA, 278 So. 2d 675 (Fla. 3d DCA 1973)
- Bache v. Mendoza, 400 So. 2d 558 (Fla. 3d DCA 1981)
- Montano v. Montano, 472 So. 2d 1377 (Fla. 3d DCA 1985)
- City OF Homestead v. Chester, 455 So. 2d 613 (Fla. 3d DCA 1984)
- Gamboa v. Iona Laverne Jones, 455 So. 2d 613 (Fla. 3d DCA 1984)