COUNTY SANITATION, INC., APPELLANT,
v.
JOSEPH ANDRE JEAN AND JOCELINE JEAN, INDIVIDUALLY AND AS HUSBAND AND WIFE, APPELLEES
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County Sanitation appealed the trial court's denial of its motion to set aside a default judgment entered after the clerk of court deemed the company in default for failing to respond to service. The Fourth District Court of Appeal reversed, finding that the combined evidence—including an erroneous service date on the return, credible testimony that employees never received the papers, and the deputy's lack of independent recollection—clearly and convincingly overcame the presumption of correctness afforded to the service return.
The court held that the trial judge abused her discretion by denying the motion. The service return date error, the finding that Lewis was not served, the denial of service by company employees, and the deputy's admitted lack of recollection together created sufficient doubt regarding whether the company was served, and this evidence clearly and convincingly overcame the presumption of correctness afforded to the service return.
[1] A return of service is afforded a presumption of correctness which must be overcome by clear and convincing evidence.
[2] A mere denial of service is insufficient to overcome the presumption of correctness of a return of service.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We recognize that a return of service is afforded a presumption of correctness which must be overcome by clear and convincing evidence and that a mere denial of service is insufficient.”
Establishes the legal standard: service returns have a presumption of correctness that requires clear and convincing evidence to overcome.
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Join FLexlaw to unlock all legal intelligenceAppellees sued County Sanitation and its employee Charles Lewis for damages from a vehicle collision. A deputy sheriff's return of service indicated s…
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GARRETT, Judge.
Appellant seeks review of the trial court’s denial of its motion to set aside a default.
Appellees sued for the damages they suffered when their car and appellant’s truck collided. A deputy sheriff’s return of service stated that he served appellant on the morning of August 24, 1986, by delivering a copy of the summons and complaint to Sylvia Gwynn, appellant’s comptroller. A separate return of service stated that eode-fendant Charles Lewis (Lewis), the driver employee of appellant, was personally served on the same date at the same place. Neither appellant nor Lewis responded to the service and in May of 1987, the court clerk entered defaults. In September of 1987, both appellant and Lewis filed a motion to set aside the default. At an evidentiary hearing, the parties stipulated that August 24, 1986 was a Sunday, so August 25, 1986, a Monday, should have been written as the service date. The deputy testified that he had no independent recollection of serving the appellant other than what was written on the return of service. However, the deputy remembered going to appellant’s corporate offices twice — once to serve appellant, then a half hour later to serve Lewis. Sylvia Gwynn testified that had she been served she would have followed office procedure and given the papers to the office manager. Pat Bibby, the office manager, testified that neither she nor anyone else associated with appellant’s corporation recalled any service.
Lewis testified that he couldn’t have been served on Monday morning because he was away from the corporate office working. When Lewis returned later that night he found some paperwork on his clipboard. Lewis showed the papers to his dispatcher before he took them home. The trial judge granted Lewis’s motion, but denied appellant’s.
We recognize that a return of service is afforded a presumption of correctness which must be overcome by clear and convincing evidence and that a mere denial of service is insufficient. Slomowitz v. Walker, 429 So. 2d 797 (4th DCA 1983). However, under appropriate circumstances courts should liberally set aside defaults so that controversies may be determined on their merits. Brandt v. Dolman, 421 So. 2d 689 (Fla. 4th DCA 1982). Any doubt should be resolved in favor of granting a motion to set aside a default. Zimmerman v. Vinylgrain Industries of Jacksonville, Inc., 464 So. 2d 1353 (Fla. 1st DCA 1985).
We believe that the service return date error, the trial court’s finding that Lewis was not personally served, the denial of service by appellant’s employees, and the deputy’s admitted lack of recollection ere-ate a doubt whether appellant was served. We find the trial judge abused her discretion as the evidence when taken as a whole clearly and convincingly overcame the service return’s presumption of correctness.
Accordingly, we reverse and remand for further proceedings consistent herewith.
HERSEY, C.J., and WALDEN, J., concur.
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Southeastern Termite AND Pest v. Aser Ones and Gladys Ones, 792 So. 2d 1266 (Fla. 4th DCA 2001)…o showing that appellant’s failure to timely serve a responsive pleading was 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 purport…
Authorities Cited
- Slomowitz v. E.O. Walker and Geneva Walker, 429 So. 2d 797 (Fla. 4th DCA 1983)
- Wes Brandt v. Dolman, 421 So. 2d 689 (Fla. 4th DCA 1982)
- Ward D. Zimmerman v. Vinylgrain Indus. OF Jacksonville, Inc., 464 So. 2d 1353 (Fla. 1st DCA 1985)