CHI LUU LINVILLE, APPELLANT,
v.
HOME SAVINGS OF AMERICA, FSB, F/K/A HOME SAVINGS OF AMERICA, F.A., APPELLEE
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The trial court erred in denying a motion to quash service of process without an evidentiary hearing.
[1] A motion to quash service of process requires an evidentiary hearing when the moving party's unrebutted allegations, if proven, would establish a failure to effect valid…
[2] The submission of affidavits alone is insufficient to constitute an evidentiary hearing on a motion to quash service of process.
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Join FLexlaw to unlock all legal intelligenceAppellant moved to quash service of process, presenting an affidavit. The trial court denied the motion without an evidentiary hearing, despite appell…
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PER CURIAM.
Chi Luu Linville appeals from an order denying her motion to quash service of process and contends the trial court erred in denying her motion without an evidentiary hearing. We agree and reverse.
On March 29, 1993, the trial court heard argument at a motion calendar hearing on appellant’s motion to quash service of process. Appellant’s affidavit constituted the only evidence presented at the hearing. The trial court continued the matter until April 30, 1993 for an evidentiary hearing on appellant’s motion. On April 23, 1993, appellee filed a pleading in opposition to any subse quent hearing and argued the trial court provided appellant the opportunity to present evidence challenging the validity of service during the March 23, 1993 proceedings. The trial court denied appellant’s motion without an evidentiary hearing.
This court has previously expressed its view that neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing. Sperdute v. Household Realty Corp., 585 So. 2d 1168, 1169 (Fla. 4th DCA 1991). The unrebutted allegations1 contained in appellant’s motion to quash service of process and the supporting affidavit, if proven by clear and convincing evidence, would establish appellee’s failure to effect valid service of process as required by section 48.031, Florida Statutes (1991). See Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983). Appellant is therefore entitled to an evidentiary hearing on her motion to quash service of process. See Travelers Ins. Co. v. Davis, 371 So. 2d 702 (Fla. 3d DCA 1979).
Accordingly, we reverse the trial court’s order denying appellant’s motion to quash service of process and remand for proceedings consistent with this opinion.
REVERSED and REMANDED.
DELL, C.J., GLICKSTEIN and FARMER, JJ., concur. . Appellee has not filed an answer brief in this appeal. Moreover, the appendix filed by appellant does not contain any evidence presented by appellee refuting appellant’s allegation of defective service in the trial court.
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Cited By (12 total)
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Fern, Ltd. v. Rd. Legends, Inc., 698 So. 2d 364 (Fla. 4th DCA 1997)…ted. Appellant’s counsel did not dispute the veracity of the statement. Appellant argues, however, that the trial court could not rely on argument of counsel and should have conducted an evidentiary hearing. In Linville v. Home Sav. of America, FSB, 629 So. 2d 295 (Fla. 4th DCA 1993),we held: This court has previously expressed its view that neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing. Sperdute v. Household Realty Corp., 585 So. 2d 1168, 116…
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The Panama City Gen. P'ship v. Godfrey Panama City Inv., 109 So. 3d 291 (Fla. 1st DCA 2013)…ich Defendant was entitled. The conflicting affidavits filed in this case and considered at the hearing on the motion in this case are competent substantive evidence, unlike the mere argument of counsel presented in Linville v. Home Sav. of America, 629 So. 2d 295 (Fla. 4th DCA 1993) and single affidavit and argument of counsel presented in Fern, Ltd. v. Road Legends, Inc., 698 So. 2d 364 (Fla. 4th DCA 1997). I would affirm the order denying the motion to quash service of process and set aside default.…
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Karletta A. Talton v. CU Members Mortg., 126 So. 3d 446 (Fla. 4th DCA 2013)…e motion. We reversed because the allegations of the motion, if established as true, were sufficient to entitle the borrowers to relief, and they should have been given an evidentiary hearing. Similarly, in Linville v. Home Savings of America, FSB, 629 So. 2d 295 (Fla. 4th DCA 1993), the borrower filed a motion to quash service of process. Home Savings did not offer an affidavit in response. The only evidence presented was Linville’s affidavit denying she had received service. We reversed the trial court’s d…
Previewing 3 of 12 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)
- The Travelers Ins. Co. v. Davis, 371 So. 2d 702 (Fla. 3d DCA 1979)
- Burgess v. State, 585 So. 2d 1168 (Fla. 4th DCA 1991)
- Sperdute v. Household Realty Corp., 585 So. 2d 1168 (Fla. 4th DCA 1991)