PABLO UBILLA, APPELLANT,
v.
L & W SUPPLY, A FOREIGN CORPORATION D/B/A SEACOAST SUPPLY, APPELLEE
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The court held that service of process was ineffective because it was not made at the defendant's usual place of abode, and thus the trial court lacked personal jurisdiction.
A plaintiff served a defendant by leaving a copy of the complaint at the defendant's sister's residence, where the defendant did not live. The defenda…
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PER CURIAM.
Pablo Ubilla, a resident of Nicaragua, appeals from an order denying his motion to set aside a default judgment. For the following reasons, we reverse.
Ubilla was named as a defendant in an action to foreclose on a mechanic’s lien, based upon a personal guaranty that he had executed for the purchase of construction supplies. Plaintiff served a summons and a copy of the complaint on Ubilla’s sister in Miami at a residence that she owned. When Ubilla, who lived in Nicaragua, learned of the lawsuit, the time to answer had elapsed; a default was then entered. After securing an attorney in Miami, Ubilla moved to set aside the default pursuant to Fla.R.Civ.P. 1.540; the trial court denied the motion.
Section 48.031, Florida Statutes (1993) provides that service of process may be made by leaving a copy of the complaint at the defendant’s “usual place of abode with any person residing therein.... ” (Emphasis added). The affidavits that Ubilla and his sister filed in support of the motion established that Ubilla neither lived at his sister’s residence nor owned the property. Accordingly, the trial court erred in denying the motion to set aside the default, as service of process upon Ubilla was ineffective, and the trial court lacked personal jurisdiction over him. See Moschetta v. Atlantic Nat’l Bank of Broward, 540 So. 2d 166 (Fla. 4th DCA 1989) (where service of process defective, trial court lacked jurisdiction over defendant and improperly denied defendant’s motion to set aside default); Gamboa v. Jones, 455 So. 2d 613 (Fla. 3d DCA 1984) (same). Because jurisdiction did not lie, defendant need not demonstrate a meritorious defense to the allegations of the complaint. Gamboa, 455 So. 2d at 614.
Reversed and remanded for further proceedings consistent with this opinion.
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Bennett v. Christiana Bank & Tr. Co., 50 So. 3d 43 (Fla. 3d DCA 2010)…ent, and allow Ms. Bennett to file and serve a responsive pleading. Where no in personam jurisdiction is obtained over a defendant, the defendant is not required to demonstrate a meritorious defense to set aside the default. Ubilla v. L & W Supply, 637 So. 2d 994 (Fla. 3d DCA 1994); Gamboa v. Jones, 455 So. 2d 613 (Fla. 3d DCA 1984). The trial court should not have required Ms. Bennett to demonstrate a meritorious defense to the action once it became clear that the summons and complaint were never properly s…
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Busman v. State, 905 So. 2d 956 (Fla. 3d DCA 2005)…ft the copy of the summons and complaint with Potts. Therefore, the substituted service was invalid, and the trial court abused its discretion in denying Busman’s motion to vacate the judgment. See Shurman, 795 So. 2d at 956; Ubilla v. L & W Supply, 637 So. 2d 994 (Fla. 3d DCA 1994); Alvarez v. State Farm Mut. Auto. Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994); Milanes v. Colonial Penn Ins. Co., 507 So. 2d 777 (Fla. 3d DCA 1987); Gahagen v. Mahoney, 511 So. 2d 1125 (Fla. 4th DCA 1987); Stern v. Gad, 505 So. 2d…
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Gonzalez v. City OF Hollywood, 805 So. 2d 58 (Fla. 3d DCA 2002)…to have the judgment set aside so that the case could proceed in the proper course. Because defendant was never properly served, he did not have to demonstrate a meritorious defense in order to have the judgment set aside. Ubilla v. L. & W. Supply, 637 So. 2d 994 (Fla. 3d DCA 1994); see also Ocean Bank v. Save Import and Export, Inc., 797 So. 2d 609 (Fla. 3d DCA 2001). The defendant argues that he is entitled at this point to have judgment entered in his favor, and to have the funds returned to him. He cont…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 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)