FLAVIA ALVAREZ, APPELLANT,
v.
STATE FARM MUTUAL AUTO INSURANCE COMPANY, AS SUBROGEE OF FAY ROBERTS, APPELLEE
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Court reversed denial of motion to set aside default judgment where substituted service was ineffective because defendant was not residing at the alleged usual place of abode.
A default judgment must be set aside when substituted service under Florida Statutes section 48.031 is ineffective because the defendant was not actually residing at the address where service was attempted.
[1] Substituted service of process under Florida Statutes section 48.031 is ineffective and a resulting default judgment is void when the defendant was not actually residing…
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Join FLexlaw to unlock all legal intelligenceAlvarez was served by substituted service at a home in Hialeah allegedly her usual place of abode by serving her cousin, but affidavits and documentat…
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PER CURIAM.
The defendant below seeks review of an order denying her rule 1.540(b) motion to set aside a default and default judgment entered against her. We reverse.
Substituted service of process in this accident case was secured on Alvarez under section 48.031, Florida Statutes (1991) by serving her cousin at what was allegedly her “usual place of abode” at a home in Hialeah. The affidavits and supporting documentation — including a telephone bill and marriage license — submitted in support of appellant’s motion below, however, established uncontra-dictedly that Alvarez was not living at that address on the date of service or for some time before. See Hunt Exterminating Co. v. Crum, 598 So. 2d 113 (Fla. 2d DCA 1992); Partrade, Inc. v. Marchiano, 566 So. 2d 588 (Fla. 3d DCA 1990); Marshall Davis, Inc. v. Incapco, Inc., 558 So. 2d 206 (Fla. 2d DCA 1990). It is therefore apparent that the purported service of process was ineffective as a matter of law, see Kennedy v. Richmond, 512 So. 2d 1129 (Fla. 4th DCA 1987), and that the default and default judgment were therefore void and must be set aside. See Falkner v. AmeriFirst Fed. Sav. & Loan Ass’n, 489 So. 2d 758 (Fla. 3d DCA 1986); Sams Food Store, Inc. v. Alvarez, 443 So. 2d 211 (Fla. 3d DCA 1983); Hyman v. Canter, 389 So. 2d 322 (Fla. 3d DCA 1980).
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Shurman v. Atl. Mortg. & Inv. Corp., 795 So. 2d 952 (Fla. 2001)…place of abode” set forth in Heffeman, courts have frequently invalidated substituted service of process in cases where the defendant was not actually living at the place where service was made. See, e.g., Alvarez v. State Farm Mutual Auto Ins. Co., 635 So. 2d 131, 132 [*955] (Fla. 3d DCA 1994) (invalidating substituted service on defendant’s cousin where affidavits and supporting documentation, including a telephone bill and marriage license, established defendant was not living at that address on the date o…
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Torres v. Arnco Constr., Inc., 867 So. 2d 583 (Fla. 5th DCA 2004)…y invalidated substituted service of process in cases where the defendant was not actually living at the place where service was made, even though process might have been delivered to a relative. See, e.g., Alvarez v. State Farm Mut. Auto. Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994); Stern v. Gad, 505 So. 2d 531 (Fla. 3d DCA 1987). Our standard of review of an order ruling on a motion to vacate a default judgment is whether there has been a gross abuse of discretion by the trial court. See North Shore Hosp.,…
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Clauro Enters., Inc. v. Aragon Galiano Holdings, LLC, 16 So. 3d 1009 (Fla. 3d DCA 2009)…trial court did not have personal jurisdiction over Rupcich, and the default judgment is void. See Weiss v. Mashantucket Pequot Gaming Enter., 935 So. 2d 69 (Fla. 3d DCA 2006); Fandino, 751 So. 2d at 753-54; Alvarez v. State Farm Mut. Auto Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994). Accordingly, we reverse and remand with instructions that the default judgment entered against Rupcich be vacated forthwith. Affirmed in part, reversed in part, and cause remanded for proceedings consistent with this opinion.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So. 2d 758 (Fla. 3d DCA 1986)
- Marshall Davis, Inc. v. Incapco, Inc., 558 So. 2d 206 (Fla. 2d DCA 1990)
- Kennedy v. Richmond, 512 So. 2d 1129 (Fla. 4th DCA 1987)
- Hyman v. Goldie Canter, 389 So. 2d 322 (Fla. 3d DCA 1980)
- Hunt Exterminating Co., Inc. v. Crum, 598 So. 2d 113 (Fla. 2d DCA 1992)
- State v. Aldwyn Powell, 566 So. 2d 588 (Fla. 3d DCA 1990)
- Sams Food Store, Inc. v. Daysee Alvarez, 443 So. 2d 211 (Fla. 3d DCA 1983)