CALVIN THOMPSON, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF REVENUE, APPELLEE
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Calvin Thompson appealed the denial of his motion to quash service of process in a child support action filed by the Florida Department of Revenue. The court reversed, holding that Thompson's affidavit established a prima facie case that service at his wife's address was invalid under Florida's substituted service statute, requiring an evidentiary hearing to determine validity.
The court reversed the trial court's order denying the motion to quash, holding that Thompson's affidavit established a prima facie case that service did not comply with § 48.031's requirement of service at the defendant's 'usual place of abode,' and remanded for an evidentiary hearing on the validity of service.
[1] A court lacks personal jurisdiction over a defendant when service of process is invalid.
[2] Substituted service of process must be made at the defendant's usual place of abode.
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Join FLexlaw to unlock all legal intelligence“[s]ection 48.031 expressly requires that substituted service be at the person's usual place of abode.”
Establishes the statutory requirement for valid substituted service under Florida law.
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Join FLexlaw to unlock all legal intelligenceThe Department of Revenue filed a child support action against Thompson for his four-year-old daughter. Service of process was attempted at 625 F Cove…
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Calvin Thompson appeals a non-final order denying his motion to quash service of process in this support-administrative paternity action filed by the Department of Revenue. We reverse and remand for an evidentiary hearing pursuant to Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502-03 (Fla.1989).
Pursuant to section 409.2564, Florida Statutes (2002), the-Department filed an action to establish and enforce child support for Thompson’s four year-old daughter. The petition was served at 625 F Covenant Drive, Belle Glade, Florida 33430, and accepted by Thompson’s wife. Thompson filed a motion to dismiss/quash for lack of service of process stating that he was not present at the Belle Glade address and was not personally served. In his attached affidavit, Thompson stated that he has been separated from his wife, that he has not resided at that address for over three years, and that he did not authorize anyone to accept service of process on his behalf.
The trial court entered an order ruling that any jurisdictional defect could be cured by mailing a copy of the petition and accompanying documents to Thompson’s attorney, “who has made a general appearance.” The Department correctly concedes that the jurisdictional defect cannot be cured in the manner suggested by the trial court and that Thompson’s argument that the trial court lacked personal jurisdiction was not waived because Thompson neither took affirmative action nor sought affirmative relief prior to raising the alleged defect. See Coto-Ojeda v. Samuel, 642 So. 2d 587, 588 (Fla. 3d DCA 1994)(Cope, J., specially concurring).
Turning to the merits, “[sjection 48.031 expressly requires that substituted service be at the person’s usual place of abode.” Shurman v. Atlantic Mortgage & Investment Corp., 795 So. 2d 952, 954 (Fla.2001). The requirement “usual place of abode” means “the place where the defendant is actually living at the time of service.” Id., citing State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147 (1940). The burden of proof to sustain .the validity of service of process is upon the person who seeks to invoke the jurisdiction of the court and, without proper service of process, the court lacks personal jurisdiction over the defendant. M.J.W. v. Department of Children and Families, 825 So. 2d 1038, 1041 (Fla. 1st DCA 2002).
“[A] process server’s return of service on a defendant which is regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary.” Telf Corp. v. Gomez, 671 So. 2d 818 (Fla. 3d DCA 1996). Although simple denial of service is not sufficient, id. at 819, Thompson’s motion and affidavit are based on the fact that the service did not comply with section 48.031 and was therefore legally deficient. National Safety Associates, Inc. v. Allstate Insurance Co., 799 So. 2d 316, 317 (Fla. 2d DCA 2001). Thompson’s affidavit makes a prima facie showing that he was not served at his usual place of abode by valid substituted service. See, e.g., S.H. v. Department of Children and Families, 837 So. 2d 1117, 1118 (Fla. 4th DCA 2003)(invalidating substituted service on father at mother’s address, where mother’s residence was not father’s “usual place of abode” at the time of service); Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985)(invalidating substituted service when wife was separated from husband and not living at address where service was attempted). Having raised the issue of personal jurisdiction, Thompson’s motion and accompanying affidavit placed the burden on the Department to establish the validity of service of process. M.J.W., 825 So. 2d at 1041. Accordingly, the cause is reversed and remanded for an evidentiary hearing to determine whether the attempted service of Thompson pursuant to section 48.031, Florida Statutes (2003), was valid. See Venetian Salami, 554 So. 2d at 502-03; Mowrey Elevator of Florida, Inc. v. Automated Integration, 745 So. 2d 1046, 1047-48 (Fla. 1st DCA 1999).
REVERSED and REMANDED.
KAHN and BENTON, JJ., concur.
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Re-Employment Servs., Ltd. v. Nat'l Loan Acquisitions Co., 969 So. 2d 467 (Fla. 5th DCA 2007)…idavits by NLAC from the process server providing the necessary information mandated by section 48.21.1 Accordingly, we remand [*473] this case to the trial court for proceedings consistent with this opinion. See Thompson v. State, Dep’t of Revenue, 867 So. 2d 603 (Fla. 1st DCA 2004). REMANDED. GRIFFIN and TORPY, JJ., concur. . We note, parenthetically, that the parties did. set a hearing date for the purpose of [*473] resolving this matter, but the trial court, two days before the scheduled date, cancelle…
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Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So. 3d 177 (Fla. 3d DCA 2011)…s regular on its face and therefore presumptively valid; defendant thus had burden of proving, by clear and convincing evidence, that he was not served at his usual place of abode). .The dissent relies upon Thompson v. State, Department of Revenue, 867 So. 2d 603 (Fla. 1st DCA 2004), for the proposition that an affidavit alleging that defendant was not served at his usual place of abode is a challenge to the facial regularity of the return of service. In Thompson, our sister court appeared to blur the distin…1 / 2
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The Panama City Gen. P'ship v. Godfrey Panama City Inv., 109 So. 3d 291 (Fla. 1st DCA 2013)…give the Partnership additional time to prepare. We reverse, however, for an evi-dentiary hearing based upon the Partnership’s motion for reconsideration, which makes a prima facie case to challenge service. See Thompson v. State, Dep’t of Revenue, 867 So. 2d 603, 605 (Fla. 1st DCA 2004). The Partnership’s motion attached Porretta’s amended affidavit, an affidavit from Porretta’s son, a receipt from the moving company, and a letter from the director of the retirement community where Porretta now resides. All…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Venetian Salami Co. v. J.S. Parthenais, 554 So. 2d 499 (Fla. 1989)
- State ex rel. King Merritt v. The Honorable David J. Heffernan, 142 Fla. 496 (Fla. 1940)
- Shurman v. Atl. Mortg. & Inv. Corp., 795 So. 2d 952 (Fla. 2001)
- Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985)
- Telf Corp. v. Ivon Gomez, 671 So. 2d 818 (Fla. 3d DCA 1996)
- M.J.W. v. Dep't of Child. & Families, 825 So. 2d 1038 (Fla. 1st DCA 2002)
- Nat'l Safety Assocs., Inc. v. Allstate Ins. Co., 799 So. 2d 316 (Fla. 2d DCA 2001)
- S.H. v. The Dep't OF Child. & Families, 837 So. 2d 1117 (Fla. 4th DCA 2003)
- Coto-Ojeda v. Anne S. Samuel, 642 So. 2d 587 (Fla. 3d DCA 1994)
- Rockwell v. State, 745 So. 2d 1046 (Fla. 1st DCA 1999)