ALLAN EMMER, APPELLANT,
v.
CHARLES BRUCATO AND MARCIA BRUCATO, ET AL., APPELLEES
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The court held that the trial court did not abuse its discretion in denying the motion to vacate the default judgment, as the appellant failed to meet the required legal standards.
[1] A return of service, regular on its face, is presumed valid unless overcome by clear and convincing evidence.
[2] A defaulting party must establish by clear and convincing evidence that service of process was invalid.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff filed suit against the defendant, who was allegedly served in Michigan. The defendant claimed he was never served and only learned of th…
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Allan Emmer appeals an order of the court denying his motion to vacate a default final judgment entered against him and his motion to dismiss for lack of personal jurisdiction.
We affirm. Charles Brucato and Marcia Brucato filed suit against Emmer in Seminole County, Florida. According to the return of service filed with the court, Emmer was served a copy of the summons and complaint on October 26, 2000, by a deputy sheriff at his place of residence in West Bloomfield, Michigan. It is the validity of that service and Emmer’s actions, or inac-tions thereafter, that are at the heart of this appeal. Emmer claims he was never served, and that the first notice he had of the pending suit was when he received a copy of the Brucatos’ motion for entry of a default in late December, 2000, for his failure to respond to the complaint. At that time, Emmer contacted his Michigan attorney, who telephoned the Brucatos’ attorney and asked for a copy of the summons and complaint. The Brucatos’ attorney promptly sent the Michigan attorney a copy of the summons and complaint, although the Michigan attorney testified he never received it.
On January 16, 2001, the trial court entered, a default against Emmer, and entered a final judgment against him shortly thereafter. Still, Em-mer took no action until February 5, 2001, when his Florida counsel filed a motion to vacate the default judgment pursuant to Florida Rule of Civil Procedure 1.540(b), alleging that Emmer had failed to answer due to excusable neglect, that he had a meritorious defense, and that the court lacked personal jurisdiction over him based on his claim that he had never been served with process.
On April 16, 2001, Emmer filed a motion to dismiss for lack of personal jurisdiction. After both of Emmer’s motions were denied, this appeal ensued.
Our standard of review of an order ruling on a motion to vacate a default judgment is whether there has been a gross abuse of the trial court’s discretion. North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla.1962).1 We find no such abuse in this case and affirm.
Emmer failed to show that (1) his failure to file a timely responsive pleading was due to excusable neglect; (2) he had a meritorious defense to the claim; and, (3) the request for relief from the default was made with reasonable diligence after it was discovered. Hunt Exterminating Co., Inc. v. Crum, 598 So. 2d 113 (Fla. 2d DCA 1992).
The real crux of this appeal is Emmer’s contention that he was never served with process. While the burden of proving the validity of service of process is on the Brueatos, the parties seeking to invoke the jurisdiction of the court, Knabb v. Morris, 492 So. 2d 839, 841 (Fla. 5th DCA 1986), a return of service, which is regular on its face, is presumed valid unless clear and convincing evidence is presented to the contrary. Telf Corp. v. Gomez, 671 So. 2d 818 (Fla. 3d DCA 1996).
Whether that presumption is overcome is a factual one for the trial court. Titus Bros. Roofing Co. v. Blank, 542 So. 2d 439 (Fla. 5th DCA 1989).
The defaulting party must establish by clear and convincing evidence that service was invalid. Aboudraah v. Tartus Group, Inc., 795 So. 2d 79 (Fla. 5th DCA 2000).
A defendant cannot impeach a summons by simply denying service, but must present clear and convincing evidence to corroborate his denial of service. Slomowitz v. Walker, 429 So. 2d 797, 799 (Fla. 4th DCA 1983).
Here, the trial court made a factual determination, after weighing the conflicting evidence, that Emmer was served with process.
The record before us contains competent, substantial evidence to support that conclusion.
Finding no merit in the other issues raised by Emmer, we affirm the trial court’s order. AFFIRMED.
THOMPSON, C.J. and SAWAYA, J., concur. . We use the gross abuse of discretion standard because that is the standard the Florida Supreme Court adopted in North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962). It is, however, unclear to us the difference between “gross abuse of discretion” and "abuse of discretion,” although some courts have recognized, though not defined, a difference. See George v. Radcliffe, 753 So. 2d 573 (Fla. 4th DCA 2000). ("[I]t makes sense to use abuse of discretion, not gross abuse, as the standard of review, when the trial court has denied a motion to vacate.")
In Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), the supreme court defined abuse of discretion as follows:
Discretion ... is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
Id., at 1203 (quoting Delno v. Market St. Ry. Co., 124 F. 2d 965, 967 (9th Cir.1942).) Thus, if an abuse of discretion is an action by the trial court that no reasonable judge would take, what then is a "gross” abuse of discretion? Is it an action that only an extremely unreasonable judge would take? We suspect that the one and only standard is abuse of discretion, and that the supreme court’s use of the word "gross” was merely surplusage. Nevertheless, in the instant case, we find no abuse of discretion, gross or otherwise.
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Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300 (Fla. 2d DCA 2004)…hich both Ronco and Popeil rely was executed by Michael Johnson, who averred in that affidavit that he represented Popeil. Given our disposition of this case, we need not address the issues posed by these facts. . In a footnote in Emmer v. Brucato, 813 So. 2d 264, 265 n. 1 (Fla. 5th DCA 2002), the Fifth District suggests that there is but one standard and that the word "gross”- was merely surplusage used by the Florida Supreme Court in North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla.1962), where th…
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Torres v. Arnco Constr., Inc., 867 So. 2d 583 (Fla. 5th DCA 2004)…nt the motion of Mr. Torres for relief from judgment. Accordingly, we reverse and remand for proceedings not inconsistent with this opinion. REVERSED and REMANDED. SAWAYA, C.J., concurs. GRIFFIN, J., dissents with opinion. . In Emmer v. Brucato, 813 So. 2d 264 (Fla. 5th DCA 2002), we questioned the difference between “abuse of discretion” and "gross abuse of discretion.”…
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In re Guardianship OF Theresa Marie Schiavo v. Schiavo, 851 So. 2d 182 (Fla. 2d DCA 2003)…owing of a gross abuse of discretion. LPP Mortgage Ltd. v. Bank of Am., N.A., 826 So. 2d 462, 463-64 (Fla. 3d DCA 2002); Tilden Groves Holding Corp. v. Orlando/ Orange County Expressway, 816 So. 2d 658 (Fla. 5th DCA 2002); see also Emmer v. Brucato, 813 So. 2d 264, 265 n. 1 (Fla. 5th DCA 2002) (expressing confusion as to difference between “gross abuse of discretion” and “abuse of discretion”). In this case, the guardianship court followed the instructions in our last decision. It conducted a thorough hearing…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Delno v. Mkt. ST. RY. Co., 124 F.2d 965 (9th Cir. 1942)
- Slomowitz v. E.O. Walker and Geneva Walker, 429 So. 2d 797 (Fla. 4th DCA 1983)
- Telf Corp. v. Ivon Gomez, 671 So. 2d 818 (Fla. 3d DCA 1996)
- Baldwin v. State, 753 So. 2d 573 (Fla. 2d DCA 1999)
- Knabb v. Morris, 492 So. 2d 839 (Fla. 5th DCA 1986)
- Hunt Exterminating Co., Inc. v. Crum, 598 So. 2d 113 (Fla. 2d DCA 1992)
- Titus Bros. Roofing Co. v. Blank, 542 So. 2d 439 (Fla. 5th DCA 1989)
- Aboudraah v. Tartus Grp., Inc., 795 So. 2d 79 (Fla. 5th DCA 2000)