LUIS MILANES, APPELLANT,
v.
COLONIAL PENN INSURANCE COMPANY, AS SUBROGEE OF THOMAS J. KIRKLAND, APPELLEE
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The Third District Court of Appeal reversed a trial court's denial of a motion to vacate a default judgment, holding that service of process at the ex-wife's residence did not satisfy Florida's strict requirements for substituted service and that the trial court abused its discretion by not resolving doubts in favor of allowing a trial on the merits.
Service at the ex-wife's residence did not comply with section 48.031, Florida Statutes, which requires service at the defendant's actual place of abode. The trial court abused its discretion by denying the motion to vacate the default, as Florida policy favors resolving any reasonable doubts in favor of granting relief from defaults and allowing trials on the merits.
[1] Doubts regarding vacating a default judgment should be resolved in favor of allowing a trial on the merits.
[2] Appellate courts require a lesser showing of abuse of discretion to reverse a denial of a motion to vacate a default judgment than to reverse a grant of such a motion.
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Join FLexlaw to unlock all legal intelligence“If there is any reasonable doubt in the matter of vacating a default, it should be resolved in favor of granting the application and allowing the trial upon the merits.”
Establishes Florida's strong policy favoring relief from defaults and trial on the merits.
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Join FLexlaw to unlock all legal intelligenceLuis Milanes was served with process at his ex-wife's residence. Milanes contended that this address was not his usual place of abode and presented ev…
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PER CURIAM.
The Florida Supreme Court has established a policy of providing relief from defaults and allowing trials on the merits. If there is any reasonable doubt in the matter of vacating a default, it should be resolved in favor of granting the application and allowing the trial upon the merits. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962). Although an abuse of discretion is necessary in order to reverse a trial court’s ruling on a motion to vacate default, appellate courts need not find as great a showing of abuse to reverse a trial court’s denial of a motion to vacate default as they do to reverse a grant of such a motion. Garcia Insurance Agen cy, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977).
Kuehne & Nagel, Inc. v. Esser Int’l, Inc., 467 So. 2d 457, 458 (Fla. 3d DCA 1985) (quoting Zimmerman v. VinylGrain Indus., 464 So. 2d 1353, 1354 (Fla. 1st DCA 1985)). This rule applies equally to final default judgments. See Cunningham v. White, 390 So. 2d 467 (Fla. 3d DCA 1980). Section 48.031, Florida Statutes (1985), requires that service be at the “usual place of abode” of the person being served. This requirement, as with all requirements for substituted service, must be strictly complied with, or service is rendered void. Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985); Herskowitz v. Schwartz & Schiffrin, 411 So. 2d 1359 (Fla. 3d DCA 1982); Panter v. Werbel-Roth Secs., Inc., 406 So. 2d 1267 (Fla. 4th DCA 1981). “The term ‘usual place of abode’ means the place where the person is actually living at the time of service. Hauser v. Schiff, [341 So. 2d 531 (Fla. 3d DCA 1977)]; State [ex rel. Merritt] v. Heffernan, 142 Fla. 496, 195 So. 145 (1940).” Panter, 406 So. 2d at 1268. The evidence presented by Milanes in the present case supported his contention that the place of attempted service was not the place at which he was living at the time, or, as he stated, not his address, but that of his ex-wife. The only admissible evidence presented by Colonial at the hearing was the return of service, which did not refute Milanes’s contention. In light of this, the trial court should have resolved whatever doubts it entertained in favor of Milanes and granted his motion to vacate the default and final judgment. See Panter, 406 So. 2d at 1267.
We note that Colonial’s service of process on the residence of Milanes’s ex-wife did not satisfy the requirements of section 48.031. Service at the residence of a relative is not sufficient, regardless of the probability that the party being served will, or the fact the party does, learn of the attempted service. Panter, 406 So. 2d at 1268-69; see also Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225 (Fla.1986). In the present case, service was attempted not at the home of a relative but at the home of Milanes’s ex-wife. Because of the conflicts which often arise between ex-spouses, there is an even stronger reason to reject the attempted service here.
The trial court’s order denying Milanes’s motion to set aside the default and final judgment was an abuse of discretion. Accordingly, the order is Reversed and this case is remanded for further proceedings.
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Shurman v. Atl. Mortg. & Inv. Corp., 795 So. 2d 952 (Fla. 2001)…nd another at another period. Where such conditions exist, a summons must be served at the dwelling house in which the defendant is living at the time when the service is made.” Heffernan, 195 So. at 147. See also Milanes v. Colonial Penn Ins. Co., 507 So. 2d 777, 778 (Fla. 3d DCA 1987); Panter v. Werbel-Roth Securities, Inc., 406 So. 2d 1267, 1268 (Fla. 4th DCA 1981); Hauser, 341 So. 2d at 532. Not surprisingly, in applying the definition of the term “usual place of abode” set forth in Heffeman, courts hav…
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Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So. 3d 177 (Fla. 3d DCA 2011)…s’ “usual place of abode.”12 The statute for substituted service, however, must be strictly construed, and failure to comply with it renders service void. See Shurman, 795 So. 2d at 954; Busman, 905 So. 2d at 958; Milanes v. Colonial Penn Ins. Co., 507 So. 2d 777, 778 (Fla. 3d DCA 1987). “Indeed, because statutes authorizing substituted service are exceptions to the general rule requiring a defendant to be served personally, due process requires strict compliance with their statutory requirements.” Torres, 8…
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Johnston v. Hudlett, 32 So. 3d 700 (Fla. 4th DCA 2010)…h any person residing therein who is 15 years of age or older and informing the [*705] person of their contents.” All requirements for substituted service must be strictly complied with or service is rendered void. Milanes v. Colonial Penn Ins. Co., 507 So. 2d 777, 778 (Fla. 3d DCA 1987). The term “usual place of abode” means the place where the defendant is actually living at the time of service. Cordova v. Jolcover, 942 So. 2d 1045, 1046 (Fla. 2d DCA 2006). Here, the record contains a return of service for…
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 (12 total)
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- State ex rel. King Merritt v. The Honorable David J. Heffernan, 142 Fla. 496 (Fla. 1940)
- Garcia Ins. Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977)
- Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985)
- Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225 (Fla. 1986)
- Hauser v. Schiff, 341 So. 2d 531 (Fla. 3d DCA 1977)
- Mann v. State, 406 So. 2d 1267 (Fla. 4th DCA 1981)
- Ward D. Zimmerman v. Vinylgrain Indus. OF Jacksonville, Inc., 464 So. 2d 1353 (Fla. 1st DCA 1985)
- Herskowitz v. Schwarz & Schiffrin, 411 So. 2d 1359 (Fla. 3d DCA 1982)
- Cunningham v. Clancie White and Essie White, 390 So. 2d 467 (Fla. 3d DCA 1980)