LEE SCHNEIDERMAN, APPELLANT,
v.
JAY CANTOR, LARRY RITTER, PEOPLE'S EQUITY MORTGAGE, INC., A FLORIDA CORPORATION, ET AL., APPELLEES
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Schneiderman was improperly served in New Jersey due to a defective return of service that failed to include required statutory timing information. The trial court entered default and final default judgments against him. The Fourth District Court of Appeal affirmed the denial of Schneiderman's motion to vacate, holding that his failure to timely object to the defective service constituted a waiver despite the jurisdictional defect.
Although defective service suspends personal jurisdiction, a defendant who unduly delays in objecting to defective service and permits a default and final default judgment to be entered may be denied relief. The defendant must demonstrate excusable neglect, a meritorious defense, and due diligence in seeking relief. Here, the three-and-one-half month delay from the attorney's letter acknowledging the complaint to the motion to vacate constituted untimely delay, and the trial court did not abuse its discretion in denying the motion.
[1] A return of service that fails to state the time process came into hand and the time it was executed is invalid.
[2] A return of service is amendable at any time, and once amended, service is effective as if the return had originally stated the omitted facts.
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Join FLexlaw to unlock all legal intelligence“Defective service suspends personal jurisdiction.”
Establishes the general rule that defective service deprives the court of jurisdiction, but is subject to waiver.
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Join FLexlaw to unlock all legal intelligenceSchneiderman was served in New Jersey on August 24, 1987, but the affidavit of service filed October 1, 1987 failed to state the time when the process…
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GARRETT, Judge.
AFFIRMED. We address whether failure to make timely objection when a case is dormant due to invalid service will allow entry of a final default judgment against the improperly served party.
On August 24, 1987, appellant was served in New Jersey. The affidavit of service filed on October 1, 1987 failed to note the time when the process came into hand and the time it was executed. Both are statutory requirements of a proper return of execution of process. Failure to state the times invalidates the service. The return is amendable at any time. Once amended, service is as effective as if the return had originally stated the omitted facts. § 48.21, Fla. Stat. (1987).
On October 6, 1987, appellant’s attorney wrote the trial court admitting his client received a copy of the complaint and expressing that an attack on the defective service might be made to avoid the acknowledged default.
On December 29, 1987, appellees moved for entry of final default judgment which was entered on February 4, 1988, a copy of which was mailed to appellant on February 15, 1988.
On March 23, 1988, appellant moved to set aside the default and final default judgment. The trial court denied the motion finding lack of due diligence on appellant’s part. Appellant appeals.
Defective service suspends personal jurisdiction. Klosenski v. Flaherty, 116 So. 2d 767 (Fla.1959); Tetley v. Lett, 462 So. 2d 1126 (Fla. 4th DCA 1984). However, where a defendant unduly delays in objecting to defective service, permitting a default and final default judgment to be entered, a court may deny defendant’s motion to vacate for failure to timely object. Accord Ranger Construction Industries, Inc. v. Huff, 499 So. 2d 2 (Fla. 4th DCA 1986), rev. denied, 509 So. 2d 1118 (Fia. 1987); Craven v. J.M. Fields, Inc., 226 So. 2d 407 (Fla. 4th DCA 1969). Defendant is required to demonstrate excusable neglect, the existence of a meritorious defense and a showing of due diligence in seeking relief after learning of the default and final default judgment. Id.
Rule 1.140(b) of the Florida Rules of Civil Procedure states that insufficiency of service if not asserted is deemed to be waived. Section (a) of the rule requires an answer be filed within twenty days after service. To allow a defendant to do nothing without consequences undermines the time limitation and waiver policy of the rule.
The trial judge found the three and one-half month period from appellant’s letter to his motion to vacate (nine months from service) to be untimely delay. The trial court is vested with discretion in ruling on such a motion. Rosenblatt v. Rosenblatt, 528 So. 2d 74 (Fla. 4th DCA 1988). We find no abuse of that discretion.
DOWNEY and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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Re-Employment Servs., Ltd. v. Nat'l Loan Acquisitions Co., 969 So. 2d 467 (Fla. 5th DCA 2007)…2d 861 (Fla. 3d DCA 1985). When there is an error or omission in the return of service, personal jurisdiction is suspended and it “lies dormant” until proper proof of valid service is submitted. Klosenski, 116 So. 2d at 769; Schneiderman v. Cantor, 546 So. 2d 51 (Fla. 4th DCA 1989); Tetley v. Lett, 462 So. 2d 1126, 1127 (Fla. 4th DCA 1984). The statutory provisions that govern return of service are found in section 48.21, which specifically provides: [*472] Each person who effects service of process shall…
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Paleias v. Wang, 632 So. 2d 1132 (Fla. 4th DCA 1994)…void, because then there is a denial of due process. Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980). Where notice is adequate,6 defects in process or service of process are waived if not timely raised. Rule 1.140(b). See Schneiderman v. Cantor, 546 So. 2d 51 (Fla. 4th DCA 1989). I would therefore affirm this case because the service of process issue could not have been raised by this 1.540 motion. I agree with the majority that the other asserted [*1136] ground of the 1.540 motion, excusable neglect, i…
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Schwartz v. Bus. Cards Tomorrow, Inc., 644 So. 2d 611 (Fla. 4th DCA 1994)…xcusable neglect in failing to respond; (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, has demonstrated due diligence in seeking relief. Schneiderman v. Cantor, 546 So. 2d 51 (Fla. 4th DCA 1989). The failure of the defendant to satisfy any one of these elements must result in a denial of the motion to set aside the default. In this case, appellant has failed to establish any of the necessary elements. Indeed, the record…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Klosenski v. Flaherty, 116 So. 2d 767 (Fla. 1959)
- Craven v. J. M. Fields, Inc., 226 So. 2d 407 (Fla. 4th DCA 1969)
- Rosenblatt v. Rosenblatt, 528 So. 2d 74 (Fla. 4th DCA 1988)
- Ranger Constr. Indus., Inc. v. Huff, 499 So. 2d 2 (Fla. 4th DCA 1986)
- Tetley v. Lett, 462 So. 2d 1126 (Fla. 4th DCA 1984)