BANKERS INSURANCE COMPANY, A FLORIDA CORPORATION, APPELLANT,
v.
RANDALL J. THOMAS, AND HOME ELECTRIC SERVICE OF CENTRAL FLORIDA, INC., A FLORIDA CORPORATION, APPELLEES
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Bankers Insurance Company appealed the dismissal of its complaint against Thomas and Home Electric Service for failure to comply with Florida's 120-day service of process rule. The court reversed, holding that timely service of process—even if made on the wrong person—satisfies the rule and cannot be dismissed with prejudice, and that laches was improperly applied without proper pleading and proof.
The court held that timely service of process, even if made on the wrong person, satisfies Florida Rule of Civil Procedure 1.070's 120-day requirement and cannot support a dismissal with prejudice. The court also held that laches is an affirmative defense requiring proper pleading and clear and positive evidence of prejudice, which the appellees failed to establish.
[1] Dismissal for failure to comply with the 120-day service of process requirement is to be without prejudice.
[2] A complaint should not be dismissed with prejudice for untimely service of process if service was effected within 120 days, even if service was initially made on the wron…
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Join FLexlaw to unlock all legal intelligence“The record before us clearly reflects that the appellant timely effected service of process, albeit through invalid service on the wrong person, within 120 days of filing its complaint.”
Establishes the central factual finding that service was timely despite being served on the wrong person
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Join FLexlaw to unlock all legal intelligenceBankers Insurance Company filed a complaint against Randall J. Thomas and Home Electric Service of Central Florida, Inc. The appellant effected servic…
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' PER CURIAM.
We reverse the trial court’s final order dismissing the appellant’s complaint against the appellees with prejudice for failure to comply with the 120-day service of process requirement of Florida Rule of Civil Procedure 1.070®. The record before us clearly reflects that the appellant timely effected service of process, albeit through invalid service on the wrong person, within 120 days of filing its complaint. Accordingly, the trial court should not have dismissed the complaint after vacating the default final judgment rendered against the appellees for lack of notice but should have allowed the action to remain pending. See, e.g., Sneed v. H.B. Daniel Constr. Co., 674 So. 2d 158 (Fla. 5th DCA 1996); Smith v. Saunders, 652 So. 2d 1187 (Fla. 2d DCA 1995); Caban v. Skinner, 648 So. 2d 251 (Fla. 3d DCA 1994); Stoeffler v. Castagliola, 629 So. 2d 196 (Fla. 2d DCA 1993), review denied, 639 So. 2d 976 (Fla.1994). Moreover, under the plain language of the rule, any dismissal for noncompliance with its terms is to be without prejudice.
We also conclude that the record does not substantiate the trial court’s finding that the appellees would be unduly prejudiced by the delay in notice of the lawsuit. Laches is an affirmative defense which, under the Florida Rules of Civil Procedure, must be pled as such. Kornaker v. Payor, 565 So. 2d 899, 900 (Fla. 5th DCA 1990). Furthermore, “[a]s an affirmative defense, the burden of proving it is on its proponent, and it must be proved by very clear and positive evidence.” Golden v. Lewis, 647 So. 2d 979, 980 (Fla. 2d DCA 1994) (citing Van Meter v. Kelsey, 91 So. 2d 327, 332 (Fla. 1956)).
In this case, the record fails to demonstrate that the appellees have properly pled or proved the defense of laches in response to appellant’s complaint. It only reflects the trial court’s unsupported conclusions regarding prejudice suffered by the appellees because of the delay. Our reversal on this point, however, is without prejudice to the appellees’ properly pleading and proving the defense of laches on remand. In the event they choose to do so by way of a motion to dismiss, we emphasize that in order to prevail on such a motion, the appellees must establish that even taking the allegations of the four corners of the appellant’s complaint as true, the complaint on its face shows “clear and positive evidence” of laches. Komaker, 565 So. 2d at 900.
Accordingly, we reverse the trial court’s order of dismissal with prejudice, reinstate the appellant’s complaint, and remand for further proceedings.
Reversed and remanded for further proceedings.
PATTERSON, A.C.J., and ALTENBERND and LAZZARA, JJ., concur.
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Smith v. ST. VIL, 714 So. 2d 603 (Fla. 4th DCA 1998)…r failure to prosecute under rule 1.420(e) are not on the merits. Kohly v. Wallach, 580 So. 2d 880 (Fla. 3d DCA 1991). Nor are dismissals for failure to serve a defendant within 120 days under rule 1.070(j) on the merits. Bankers Ins. Co. v. Thomas, 684 So. 2d 246 (Fla. 2d DCA 1996).1 [*605] Although the above described dismissals are not on the merits, and should not contain the words, “with prejudice,” they are nevertheless final orders for purposes of appeal. See, e.g., Murphy White Dairy, Inc. v. Simmons,…
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Bice v. Metz Constr. Co., Inc., 699 So. 2d 745 (Fla. 4th DCA 1997)…against the Hoenigs and James Young & Co., the trial court rejected this argument without explanation. Smith, Caban and Stoeffler, as well as Sneed v. H.B. Daniel Constr. Co., Inc., 674 So. 2d 158 (Fla. 5th DCA 1996) and Bankers Ins. Co. v. Thomas, 684 So. 2d 246 (Fla. 2d DCA 1996), stand for the proposition that dismissal of an action is improper where service, albeit invalid, was effected within the 120-day period. This line of cases can be traced back to the following language from Stoejfler: Even though…
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Gardina v. Karene E. Aronowitz, 899 So. 2d 1248 (Fla. 4th DCA 2005)…somehow be thought invalid, defendant failed to demonstrate that she would have been prejudiced by granting the request for an after-the-fact order deeming the personal service timely for purposes of rule 1.070(j). See Bankers Insur. Co. v. Thomas, 684 So. 2d 246, 247 (Fla. 2d DCA 1996) (“We also conclude that the record does not substantiate the trial court’s finding that the appellees would be unduly prejudiced by the delay in notice of the lawsuit.”). Until defendant arranged for a hearing and a determina…
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
- VAN Meter v. Edward L. Kelsey and his wife, 91 So. 2d 327 (Fla. 1956)
- Gay Stoeffler v. Castagliola, 629 So. 2d 196 (Fla. 2d DCA 1993)
- Golden v. Lewis, 647 So. 2d 979 (Fla. 2d DCA 1994)
- Sneed v. H.B. Daniel Constr. Co., Inc., 674 So. 2d 158 (Fla. 5th DCA 1996)
- Caban v. Skinner, 648 So. 2d 251 (Fla. 3d DCA 1994)
- Smith v. Saunders, 652 So. 2d 1187 (Fla. 2d DCA 1995)
- Kornaker v. Louis G. Payor, D.D.S., 565 So. 2d 899 (Fla. 5th DCA 1990)