GEORGE C. LAZO, APPELLANT,
v.
BILL SWAD LEASING CO., AN OHIO CORPORATION, KEVIN J. SWAD D/B/A K.J. AUTO SALES AND RENTALS, AND TIMOTHY LAUGHRIDGE, APPELLEES
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George Lazo appealed an order quashing service of process on Bill Swad Leasing Company. The court reversed, holding that the defendant failed to present clear and convincing evidence to overcome the presumption of validity of a facially regular return of service.
A return of service that is regular on its face is presumed valid and can only be impeached by clear and convincing evidence. A defendant cannot impeach a summons by simply denying service; corroborating evidence meeting the clear and convincing standard is required. The trial court erred in granting the motion to quash because the defendant's affidavit was mere denial without sufficient corroboration.
[1] A return of service that is regular on its face is presumed valid unless clear and convincing evidence is presented to the contrary.
[2] A defendant seeking to impeach a return of service must present clear and convincing evidence to corroborate their denial of service.
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Join FLexlaw to unlock all legal intelligence“a return of service which is regular on its face is presumed valid unless clear and convincing evidence is presented to the contrary”
Establishes the presumption of validity that attaches to facially regular returns of service
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Join FLexlaw to unlock all legal intelligenceA deputy served a summons on the president of Bill Swad Leasing Company (Wilmer L. Swad, Sr.) at the company's address in Columbus, Ohio, as indicated…
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PER CURIAM.
Appellant, plaintiff below, George Lazo, appeals an order quashing service of process on appellee, defendant below, Bill Swad Leasing Company. We 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). Clear and convincing evidence requires that the witnesses to a fact be credible; the facts testified to must be distinctly remembered; the details must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts in issue. Slomowitz, 429 So. 2d at 800.
In the instant case, the legal equivalent of a return of service indicates that the deputy personally served the president of Bill Swad Leasing Company at 100 South Hamilton Road, Columbus, Ohio. In a verified motion to quash service of process, the appellee submitted an affidavit by the president denying that he, Wilmer L. Swad, Sr., was served and stating that “to the best of his knowledge” a diligent search and investigation was undertaken which revealed that no company employee was served in this action. Thus, the only corroborating evidence submitted by the appellee was a mere denial of service which is insufficient to impeach the return of the official process server. As this court explained in Slomowitz, “[rjeasons of public policy require that a sheriff’s return of service be held presumptively valid and that a defendant seeking to impeach a sheriff’s return must meet a high burden of proof” since:
the passage of time and the number of summonses served would naturally dim a process server’s recollection of serving a given summons. To permit a defendant to impeach a summons by simply denying service would create chaos in the judicial system. Therefore, evidence must be presented to corroborate the defendant’s denial of service.
Slomowitz, 429 So. 2d at 798-799.
In the instant case, because the corroborating evidence did not meet the clear and convincing standard of proof, the trial court erred in granting the appellee’s motion to quash service of process.
REVERSED AND REMANDED.
DOWNEY, LETTS and GUNTHER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Telf Corp. v. Ivon Gomez, 671 So. 2d 818 (Fla. 3d DCA 1996)…’s return of service on a defendant which is regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary. Florida Nat’l Bank v. Halphen, 641 So. 2d 495 (Fla. 3d DCA 1994); Lazo v. Bill Swad Leasing Co., 548 So. 2d 1194 (Fla. 4th DCA 1989); Slomowitz v. Walker, 429 So. 2d [*819] 797 (Fla. 4th DCA 1983); Brugh v. Savings & Profit Sharing Pension Fund of United Ins. Co. of Am., 211 So. 2d 613 (Fla. 1st DCA 1968). Further, a defendant may not impeach the validity of t…
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Fla. Nat'l Bank v. Leyda Halphen, 641 So. 2d 495 (Fla. 3d DCA 1994)…and convincing evidence is presented to the contrary. Furthermore, a defendant cannot impeach a summons by simply denying service, but must present ‘clear and convincing evidence’ to corroborate his denial of service.” Lazo v. Bill Swad Leasing Co., 548 So. 2d 1194, 1195 (Fla. 4th DCA 1989) (citations omitted). Appellee Halphen has not satisfied this high burden of proof: denial by the defendant that she was personally served and testimony that she was not a resident at her mother’s address, where she visited,…
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Southeastern Termite AND Pest v. Aser Ones and Gladys Ones, 792 So. 2d 1266 (Fla. 4th DCA 2001)…as due to any excusable neglect. We adhere to the view that a certificate of service which is regular on its face is presumptively valid. See County Sanitation, Inc. v. Jean, 559 So. 2d 1269, 1270 (Fla. 4th DCA 1990); Lazo v. Bill Swad Leasing Co., 548 So. 2d 1194, 1195 (Fla. 4th DCA 1989). . However, where the contents of an affidavit supporting a defendant’s contention of insufficiency of service would, if true, invalidate the purported service and nullify the court’s personal jurisdiction over the defendan…
Previewing 3 of 13 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)
- Magazine v. Bedoya, 475 So. 2d 1035 (Fla. 3d DCA 1985)