RONALD ARDT, AIM SECURITIES, INC., AND AIM FINANCIAL ADVISORS, INC., APPELLANTS,
v.
AMERICA'S SENIOR FINANCIAL SERVICES, INC., APPELLEE
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The court held that a default judgment entered without proper notice and compliance with substituted service statutes is void and must be set aside.
Defendants were served in Texas via substituted service on the Florida Secretary of State after an initial service attempt failed. They moved to set a…
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KLEIN, J.
Appellant defendants were served in Texas under section 48.181, Florida Statutes (2003), by substituted service on the Florida Secretary of State. After they failed to answer, a default judgment was entered, which they moved to set aside under rule 1.540(b), asserting that the judgment is void for insufficient service of process and lack of notice. We reverse the denial of their motion.
Plaintiff attempted to serve defendants through the Dallas County sheriff at one address and was unsuccessful. As it turned out, defendants had not occupied that address for a number of months. Without doing anything further, plaintiff alleged that the defendants were concealing their whereabouts and served the Florida Secretary of State under section 48.181. When the time expired in which to answer, plaintiff obtained a default judgment and, after being informed of the judgment, defendants moved to set aside the default asserting that none of them had received notice.
In their affidavit defendants stated that none of them had been located at the address at which the deputy had attempted to serve them, but they were available at a different Dallas address which would have been easily ascertainable. In addition, defendants pointed out that plaintiff had failed to comply with section 48.161 in that it had failed to file an affidavit of compliance with the statute, and had failed to file evidence of sending notice and a copy of process by certified mail. Valliappan v. Cruz, 871 So. 2d 1035 (Fla. 4th DCA 2004).
Plaintiff did not assert in the trial court, nor has it asserted here, that it did comply with our substituted service statute. We accordingly reverse the judgment as it is void.
FARMER, C.J., and BERGER, WILLIAM J., Associate Judge, concur.
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Silvio Cozzetto v. Banyan Fin., LLC, 234 So. 3d 803 (Fla. 4th DCA 2018)…, and the circuit court should have granted the defendant's motion to vacate the judgment. We reverse and remand for the circuit court to vacate both the judgment and the default against the defendant. See Ardt v. America's Senior Fin. Servs., Inc., 885 So. 2d 918, 919 (Fla. 4th DCA 2004) (reversing denial of defendants' motion to set aside final judgment under rule 1.540(b) where defendants were served in another state under section 48.181 by substituted service on the Florida Secretary of State, but section…
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Authorities Cited
- Morrow v. State, 871 So. 2d 1035 (Fla. 3d DCA 2004)
- Jodhi Valliappan v. Cruz, 871 So. 2d 1035 (Fla. 4th DCA 2004)