MATTHEW J. MOSCHETTA, D/B/A CALAMITY JANE'S GUN SHOP, APPELLANT,
v.
ATLANTIC NATIONAL BANK OF BROWARD, APPELLEE
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PER CURIAM.
This is an appeal from an order denying appellant’s motion to set aside a final judgment on the grounds that the trial court never acquired personal jurisdiction over the appellant. At issue below was whether the appellant resided at the address where a summons was served upon his daughter. In essence, if appellant could prove he did not reside at that address then no jurisdiction was acquired and the subsequent judgment was void. Cf. Gamboa v. Jones, 455 So. 2d 613 (Fla. 3d DCA 1984). However, the trial court denied appellant’s motion apparently relying on the fact that appellant later received actual notice of the lawsuit. We believe the trial court failed to apply the correct legal test, that of the appellant’s residency at the time of service of process. Accordingly, we reverse and remand with directions that the trial court reconsider the appellant’s motion and resolve the issue set out above. The trial court may, at its discretion, resolve the issue on the present record, or direct further proceedings.
HERSEY, C.J., and DOWNEY and ANSTEAD, JJ., concur.
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Schupak v. Sutton Hill Assocs. & Jesson, Inc., 710 So. 2d 707 (Fla. 4th DCA 1998)…). Where the court’s in personam jurisdiction is dependent upon service of process, the court lacks jurisdiction when the service is insufficient. See Cohen v. Drucker, 677 So. 2d 953 (Fla. 4th DCA 1996); Moschetta v. Atlantic Nat’l Bank of Broward, 540 So. 2d 166 (Fla. 4th DCA 1989). In the instant case, there is no dispute that appellant was not personally served with the summons and complaint, nor was the summons and complaint left at his usual place of abode with any person residing therein who was 15 ye…
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Ubilla v. L & W Supply, 637 So. 2d 994 (Fla. 3d DCA 1994)…operty. Accordingly, the trial court erred in denying the motion to set aside the default, as service of process upon Ubilla was ineffective, and the trial court lacked personal jurisdiction over him. See Moschetta v. Atlantic Nat’l Bank of Broward, 540 So. 2d 166 (Fla. 4th DCA 1989) (where service of process defective, trial court lacked jurisdiction over defendant and improperly denied defendant’s motion to set aside default); Gamboa v. Jones, 455 So. 2d 613 (Fla. 3d DCA 1984) (same). Because jurisdiction d…
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Hovarth v. AETNA Life Ins. Co. for the Use & Benefit of the Voluntary Benefit Plan FOR Retired Emps. OF White Motor Co., 634 So. 2d 240 (Fla. 5th DCA 1994)…, regardless of the probability that the party to be served will or does learn of the attempted service. Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225, 1227 [*241] (Fla.1986). See also Moschetta v. Atlantic National Bank of Broward, 540 So. 2d 166 (Fla. 4th DCA 1989); Milanes v. Colonial Penn Insurance Company, 507 So. 2d 777, 778 (Fla. 3d DCA 1987). In the instant ease, the trial court clearly erred in denying Hovarth’s motion to vacate the final judgment of default. Service of process was…
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- 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)