MELVIN ROKEACH AND SUSAN ROKEACH, APPELLANTS,
v.
ALEXANDER GLICKSTEIN, APPELLEE
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The Fourth District Court of Appeal affirmed the trial court's denial of the Rokeachs' motion to vacate default judgment and quash service of process. The court held that service was valid under Florida law because it was effected at the defendants' usual place of abode, even though the process server handed the papers to Melvin Rokeach through his car window as he was leaving the residence.
Service was valid under Florida Statutes section 48.031(l)(a) as service at the defendants' usual place of abode. The process server's placement of papers at the car window constituted sufficient service at that location. The trial court properly found that the defendants failed to demonstrate excusable neglect. The eight to ten foot distance from the residence to the point of service distinguished this case from cases where service was made at greater distances from the defendant's home.
[1] Service of process is valid when delivered at a defendant's usual place of abode to a person residing therein, even if the delivery occurs a short distance from the resid…
[2] A trial court's findings of fact in support of an order denying a motion to vacate default and for relief from final judgment will be affirmed if supported by the record.
Previewing 2 of 5 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“Under these circumstances, process was delivered "at" Susan Rokeach's "usual place of abode" to a person residing therein.”
Establishes the court's holding that service was valid despite occurring outside the home because it was sufficiently connected to the defendants' usual place of abode.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe process server made two prior attempts to serve the Rokeachs at their home. On the day of service (before February 19), the process server arrived…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
This non-final appeal arises out of an “order denying a motion to vacate default and for relief from final judgment, and to quash service of process.”
The record supports the trial court’s finding that Alexander Glickstein effected valid service of process on Melvin Rokeach, and that Mr. Rokeach failed to demonstrate excusable neglect in support of his motion to vacate default and for relief from final judgment.
As to Susan Rokeach, service was sufficient under section 48.031(l)(a), Florida Statutes (1997). On appeal, the facts should be viewed in the light most favorable to sustaining the trial court’s order. Before February 19, the process server had made two attempts to serve the Rokeachs at their home. On the day of service, the process server went to the home at 6:19 a.m. He rang the doorbell and no one answered. Susan Rok-each was in the house at the time. He returned to his ear, parked on the street in front of the house and waited. At 8:10 a.m., a ear emerged from the driveway of the house. Melvin Rokeach was the driver. The process server stood in its path as it turned onto the street. After a conversation with the driver in which he identified himself and described the summons and complaint, the process server placed the suit papers against the window of the automobile, holding them there for four or five seconds before the driver pulled away. At this time, the process server was eight to ten feet from the residence. The entire episode took from two to five minutes.
Under these circumstances, process was delivered “at” Susan Rokeach’s “usual place of abode” to a person residing therein. The eight to ten foot distance from the location of service to the Rokeach residence distinguishes this case from Ward v. Gibson, 349 So. 2d 173 (Fla. 3d DCA 1976), where service was made on the defendant’s roommate in a parking space in the garage of the defendant’s apartment complex.
AFFIRMED.
GUNTHER and GROSS, JJ., concur. DELL, J., concurs in part and dissents in part with opinion.
DELL, Judge,
concurring in part and dissenting in part.
I concur with the majority in its affirmance of the trial court’s order denying Melvin Rokeach’s motion to vacate default and for relief from final judgment. I would reverse and quash the service of process on Susan Rokeach on the authority of Ward v. Gibson, 349 So. 2d 173 (Fla. 3d DCA 1976). In my view, the majority has failed to distinguish the facts in Ward from those relied upon as the basis for service of process on Mrs. Rok-each.