FLORIDA NATIONAL BANK, N/K/A FIRST UNION NATIONAL BANK OF FLORIDA, APPELLANT,
v.
LEYDA HALPHEN, APPELLEE
Explore caselaw by topic → Browse Clear And Convincing Evidence Standard cases and more on FLexlaw
BASKIN, Judge.
We reverse the order setting aside a default judgment entered in favor of appellant First Union National Bank of Florida. “[A] return of service which is regular on its face is presumed valid unless clear and convincing evidence is presented to the contrary. Furthermore, a defendant cannot impeach a summons by simply denying service, but must present ‘clear and convincing evidence’ to corroborate his denial of service.” Lazo v. Bill Swad Leasing Co., 548 So. 2d 1194, 1195 (Fla. 4th DCA 1989) (citations omitted). Appellee Halphen has not satisfied this high burden of proof: denial by the defendant that she was personally served and testimony that she was not a resident at her mother’s address, where she visited, is insufficient to impeach service, Jefferson Bank & Trust v. Levy, 498 So. 2d 450, 451 (Fla. 3d DCA 1986); Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983), deemed sufficient by the court entering the default judgment. The trial court erred in setting aside the default judgment; the order is reversed and the cause is remanded.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
-
Telf Corp. v. Ivon Gomez, 671 So. 2d 818 (Fla. 3d DCA 1996)…ice of process. It has well been established that a process server’s return of service on a defendant which is regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary. Florida Nat’l Bank v. Halphen, 641 So. 2d 495 (Fla. 3d DCA 1994); Lazo v. Bill Swad Leasing Co., 548 So. 2d 1194 (Fla. 4th DCA 1989); Slomowitz v. Walker, 429 So. 2d [*819] 797 (Fla. 4th DCA 1983); Brugh v. Savings & Profit Sharing Pension Fund of United Ins. Co. of Am., 211 So. 2d 613 (Fla. 1s…
-
Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So. 3d 177 (Fla. 3d DCA 2011)…claims that service was not made at the defendant's usual place of abode must establish such a claim by clear and convincing evidence. See Busman, 905 So. 2d at 956; Telf Corp. v. Gomez, 671 So. 2d 818 (Fla. 3d DCA 1996); Fla. Nat’l Bank v. Halphen, 641 So. 2d 495 (Fla. 3d DCA 1994); Gonzalez, 472 So. 2d at 861. . The return of service was additionally defective in failing to state (as required under section 48.031(1)) that the individual served resided with the defendant and that the process server informed…
-
The Panama City Gen. P'ship v. Godfrey Panama City Inv., 109 So. 3d 291 (Fla. 1st DCA 2013)…2d 818, 818 (Fla. 3d DCA 1996). “[A] defendant may not impeach the validity of the summons with a simple denial of service, but must present ‘clear and convincing evidence’ to corroborate his denial.” Id. at 819 (quoting Fla. Nat'l Bank v. Halphen, 641 So. 2d 495, 496 (Fla. 3d DCA 1994)). Here, the Partnership called up its own motion to quash service and was aware that an affidavit of service had been filed, yet came to the hearing only prepared to deny the service to Porretta. This was insufficient as a ma…
Previewing 3 of 11 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)
- Lazo v. Bill Swad Leasing Co., 548 So. 2d 1194 (Fla. 4th DCA 1989)
- NEW Port Largo, Inc. v. Mary Anne Munz and substitute trustee, 498 So. 2d 450 (Fla. 3d DCA 1986)