BERNARD ZIMMERMAN AND VICTORIA ZIMMERMAN, APPELLANTS,
v.
GREATE BAY HOTEL AND CASINO, INC., APPELLEE

Fla. 3d DCA | 1996-12-18
No. 96-1820
Before COPE, GODERICH and SHEVIN, JJ.
683 So. 2d 1160 Florida District Court of Appeal, Third District (1996) Positive Treatment
Cited by 2 cases

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Synopsis

The Zimmermans appealed an order finding they were properly served in New Jersey litigation. The Florida District Court of Appeal reversed, holding that the trial court erred by admitting inadmissible hearsay testimony from the process server regarding the identity and statements of the person who allegedly received service.


Holding

The court held that the process server's testimony regarding Sanders' statements was inadmissible hearsay that did not fall within the exception under Florida Statutes § 90.801(2)(c). The trial court erred in admitting this testimony and in relying upon it to find proper service.


Headnotes

[1] A statement of identification of a person made after perceiving them is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination…

[2] Testimony regarding statements made by a person served with process, when that person does not testify at trial and is not subject to cross-examination, constitutes inadm…

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Key Quotes

“indicates that a statement of identification of a person made after perceiving him is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination about the statement”

Establishes the requirements for the hearsay exception under § 90.801(2)(c), emphasizing that the declarant must testify and be subject to cross-examination

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Facts & Procedural History

A process server went to the Zimmermans' residence and served a person who identified himself as Scott Sanders, the Zimmermans' nephew. At the hearing…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Bernard and Victoria Zimmerman appeal an order finding that they were properly served in New Jersey actions filed by Greate Bay Hotel and Casino, Inc. We reverse.

At the hearing on Zimmermans’ action contesting the New Jersey court’s jurisdiction, § 55.509, Fla.Stat. (1993), the process server testified that he went to the Zimmer-mans’ residence and served a person who identified himself as Scott Sanders, the Zim-mermans’ nephew, who resided at that address. The process server recounted Sanders’ responses upon being served. The Zimmermans stated that Sanders was not their nephew, but rather, he was a repairman who did not reside there.

The Zimmermans correctly argue that the court erred in admitting the process server’s testimony as to Sanders’ statements.1 Contrary to Greate Bay’s contention, that testimony is inadmissible hearsay and does not fall within section 90.801(2)(c), Florida Statutes (1995). As stated by this court in Weinstein v. LPI-The Shoppes, Inc., 482 So. 2d 520, 521 (Fla. 3d DCA 1986), section 90.801(2)(c) “indicates that a statement of identification of a person made after perceiving him is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination about the statement.” Here, the process server did not testify as to his identification of Sanders. Instead, he testified as to Sanders’ remarks when he served Sanders the process. Sanders did not testify at trial and was not subject to cross-examination. The court should have sustained the Zimmermans’ objection to that evidence. Weinstein, 482 So. 2d at 520. The court’s consideration of that testimony in finding that service was proper requires reversal and remand for a new hearing. Accordingly, the order is reversed, and the cause remanded for proceedings consistent with this decision.

Reversed and remanded.

. On appeal, the Zimmermans do not raise any issue whether the returns are facially regular. At oral argument, however, they contended that the affidavit of service on Mrs. Zimmerman inaccurately reflects that Sanders was personally known to the process server. A review of the affidavit indicates that the "personally known” indication is part of the notary's stamp and not the process server’s averments. Therefore, their contention is without merit.


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Citator

Cited By

  • Holborough v. State, 103 So. 3d 221 (Fla. 4th DCA 2012)
    …. The Third District held that “all of the process server’s testimony regarding what [the served person] had told him was hearsay” that did not qualify as non-hearsay under section 90.801(2)(c). Id.; see Zimmerman v. Greate Bay Hotel & Casino, Inc., 683 So. 2d 1160 (Fla. 3d DCA 1996). Another issue in this case is whether the identity of the victim was an essential element of the crime charged that the State was required to prove beyond a reasonable doubt. We conclude that it was. It is well established in F…

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