FERN, LTD., APPELLANT,
v.
ROAD LEGENDS, INC., A FLORIDA CORPORATION AND KENNETH SMALHEISER, AN INDIVIDUAL, AND R. ANTHONY SCIACCA, AN INDIVIDUAL, APPELLEES
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Fern, Ltd. appealed an order denying its motion to dismiss for lack of jurisdiction and defective service of process. The court reversed and remanded, holding that the trial court erred by relying on counsel's argument and affidavit testimony without conducting an evidentiary hearing to determine whether service of process was properly effected.
The court held that when a defendant submits an unrebutted affidavit raising factual questions about whether valid service was effected, the defendant is entitled to an evidentiary hearing on the motion to quash service of process. Counsel's argument and affidavits alone are insufficient to constitute an evidentiary hearing.
[1] A party is entitled to an evidentiary hearing on a motion to quash service of process when the motion is supported by an affidavit containing factual allegations that, if…
[2] Neither the submission of affidavits nor the argument of counsel alone constitutes an evidentiary hearing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing”
Establishes the legal standard that a trial court cannot rely solely on affidavits and counsel argument when ruling on a motion to quash service of process.
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Join FLexlaw to unlock all legal intelligenceAppellees filed an original complaint against Fern, Ltd. and served the defendant. Fern moved to quash service of process and submitted an affidavit f…
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DELL, Judge.
This non-final appeal arises out of an order denying appellant’s motion to dismiss appel-lees’ original complaint for lack of jurisdiction and insufficiency of service of process. Appellees, shortly after being served with appellant’s motion to dismiss, filed an amended complaint and properly completed service of process on the secretary of state. Although it would appear that the issues of jurisdiction and service of process are moot, appellant maintains that service of the original complaint was defective, thereby rendering orders entered prior to service of the amended complaint invalid as they pertain to appellant.
Appellant moved to quash service of process and submitted an affidavit of the individual served, containing facts which, if proven, would establish that she was not a person qualified to accept service of process for appellant. At the hearing on appellant’s motion to dismiss, appellees’ counsel stated that appellant’s predecessor counsel had directed service of process on the person and at the address where service was completed. Appellant’s counsel did not dispute the veracity of the statement. Appellant argues, however, that the trial court could not rely on argument of counsel and should have conducted an evidentiary hearing. In Linville v. Home Sav. of America, FSB, 629 So. 2d 295 (Fla. 4th DCA 1993),we held:
This court has previously expressed its view that neither the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing. Sperdute v. Household Realty Corp., 585 So. 2d 1168, 1169 (Fla. 4th DCA 1991). The un-rebutted allegations contained in appellant’s motion to quash service of process and the supporting affidavit, if proven by clear and convincing evidence, would establish appellee’s failure to effect valid service of process as required by section 48.031, Florida Statutes (1991). See Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983). Appellant is therefore entitled to an evidentiary hearing on her motion to quash service of process. See Travelers Ins. Co. v. Davis, 371 So. 2d 702 (Fla. 3d DCA 1979).
Id. at 296 (footnote omitted).
We agree that appellees could not rebut appellant’s affidavit without an evidentiary hearing. We therefore reverse the order denying appellant’s motion to dismiss appel-lees’ original complaint and remand for an evidentiary hearing on that issue and for such further proceedings as may be necessary.
REVERSED and REMANDED.
STONE, C.J., and POLEN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Southeastern Termite AND Pest v. Aser Ones and Gladys Ones, 792 So. 2d 1266 (Fla. 4th DCA 2001)…iciency of service would, if true, invalidate the purported service and nullify the court’s personal jurisdiction over the defendant, the trial court should hold an evidentiary hearing before deciding the issue. See Fern, Ltd. v. Road Legends, Inc., 698 So. 2d 364, 365 (Fla. 4th DCA 1997) (finding that an affidavit supporting defendant’s motion to quash service of process, if true, would establish that service was effected on someone unqualified to receive service, therefore an evidentiary hearing was require…
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Monsour v. Bruce Balk, A.I.A., P.A., 705 So. 2d 968 (Fla. 2d DCA 1998)…r served in Pennsylvania. Instead, Balk filed a motion for default. First, the trial court erred by not conducting an evidentiary hearing to determine whether or not the facts in the affidavits could be proven. See Fern, Ltd. v. Road Legends, Inc., 698 So. 2d 364, 365 (Fla. 4th DCA 1997) (Court required to hold evidentia-ry hearing in face of allegations in affidavit of defendant, because if proven would establish that person served was not qualified to accept service for defendant). If the allegations in D…
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The Panama City Gen. P'ship v. Godfrey Panama City Inv., 109 So. 3d 291 (Fla. 1st DCA 2013)…ase are competent substantive evidence, unlike the mere argument of counsel presented in Linville v. Home Sav. of America, 629 So. 2d 295 (Fla. 4th DCA 1993) and single affidavit and argument of counsel presented in Fern, Ltd. v. Road Legends, Inc., 698 So. 2d 364 (Fla. 4th DCA 1997). I would affirm the order denying the motion to quash service of process and set aside default.…
Previewing 3 of 9 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)
- Chi Luu Linville v. Home Sav. OF Am., FSB, 629 So. 2d 295 (Fla. 4th DCA 1993)
- The Travelers Ins. Co. v. Davis, 371 So. 2d 702 (Fla. 3d DCA 1979)
- Burgess v. State, 585 So. 2d 1168 (Fla. 4th DCA 1991)
- Sperdute v. Household Realty Corp., 585 So. 2d 1168 (Fla. 4th DCA 1991)