GEORGE HOVARTH, APPELLANT,
v.
AETNA LIFE INSURANCE COMPANY FOR THE USE AND BENEFIT OF THE VOLUNTARY BENEFIT PLAN FOR RETIRED EMPLOYEES OF WHITE MOTOR COMPANY, APPELLEE
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The court reversed a default judgment against Hovarth because service of process was invalid. The defendant was served through his son-in-law, who did not reside at Hovarth's home, violating the statutory requirement that substituted service must be made to a person actually residing at the defendant's usual place of abode.
No. In personam jurisdiction under § 48.031(1) requires service on a person who actually resides at the defendant's usual place of abode. Service on a non-resident, regardless of the defendant's subsequent actual notice, is insufficient to establish jurisdiction.
[1] Service of process is invalid when substituted service is made upon a person who does not reside at the defendant's usual place of abode.
[2] Actual notice of a lawsuit does not cure defective substituted service of process.
Previewing 2 of 4 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“Essential to substituted service above is the fact that the person actually served must be residing in the house of the person to be served.”
Establishes the core requirement that service must be made to someone actually residing at defendant's abode
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Join FLexlaw to unlock all legal intelligenceOn January 14, 1993, a deputy sheriff attempted to serve George Hovarth at his home while he was on vacation. Hovarth's son-in-law, Karl Biehl, who li…
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COBB, Judge.
The issue on this appeal deals with the validity of service of process.
On January 14,1993, a deputy sheriff went to the home of George Hovarth, who was then on vacation, in an attempt to deliver a summons and complaint.
Hovarth’s son-in-law, Karl Biehl, who lived next door, had a key and was looking after the house taking in mail and newspapers while Hovarth was on vacation. Biehl was the person served even though he was not residing in Hovarth’s house. Subsequently, a default judgment was entered against Hor-vath, and his motion to vacate that default was denied, giving issue to the instant appeal.
Aetna concedes that the requirements of section 48.031(1), Florida Statutes, were met with the exception that Karl Biehl “did not reside at Hovarth’s place of abode.” Aetna claims, however, that the final judgment of default was valid because Hovarth had “actual notice” of the proceeding against him. To simplify the matter further, Hovarth does not deny that he later received actual notice from his 12-year old grandson. The only issue in dispute then is whether in order to obtain in personam jurisdiction pursuant to section 48.031(1), Aetna was required to serve a person who actually resided at Ho-varth’s usual place of abode.
Section 48.031(1) reads:
(l)(a) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.
Essential to substituted service above is the fact that the person actually served must be residing in the house of the person to be served. Gamboa v. Jones, 455 So. 2d 613 (Fla. 3d DCA 1984); Hauser v. Schiff, 341 So. 2d 531 (Fla. 3d DCA 1977). Furthermore, attempted service of a relative who is not residing with the party to be served is insufficient, 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 (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 invalid.
REVERSED.
HARRIS, C.J., and W. SHARP, J., concur.
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Suntrust Banks OF Fla., Inc. v. DON Wood, Inc., 693 So. 2d 99 (Fla. 5th DCA 1997)…081 Fla.Stat. (1995). Moreover, contrary to the Bank’s claim otherwise, such improper service can not be excused even when the defendant and/or the defendant’s attorney possessed actual notice of the lawsuit. See Hovarth v. Aetna Life Insurance Co., 634 So. 2d 240 (Fla. 5th DCA 1994). The Bank also challenges the dismissal order, arguing that the trial court erroneously applied section 95.11(3)(e) which provides that: An action founded on the design, planning, or construction of an improvement to real prope…
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Portfolio Recovery Assocs., LLC v. Gonzalez, 951 So. 2d 1037 (Fla. 3d DCA 2007)…& W Body Shop Supplies, Inc., 622 So. 2d 72 (Fla. 2d DCA 1993); cf. Small v. Chicola, 929 So. 2d 1122 (Fla. 3d DCA 2006). That the defendants actually received the complaint and summons does not affect the result. See Hovarth v. Aetna Life Ins. Co., 634 So. 2d 240 (Fla. 5th DCA 1994); Moschetta v. Atl. Nat’l Bank of Broward, 540 So. 2d 166 (Fla. 4th DCA 1989). Affirmed. . Section 48.03l(1)(a) provides: Service of original process is made by delivering a copy of it to the person to be served with a copy…
Authorities Cited
- Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225 (Fla. 1986)
- Hauser v. Schiff, 341 So. 2d 531 (Fla. 3d DCA 1977)
- Milanes v. Colonial Penn Ins. Co., 507 So. 2d 777 (Fla. 3d DCA 1987)
- Moschetta v. Atl. Nat'l Bank OF Broward, 540 So. 2d 166 (Fla. 4th DCA 1989)
- 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)