SCOTT NIRK A/K/A SCOTT A. NIRK, APPELLANT,
v.
BANK OF AMERICA, N.A., APPELLEE

Fla. 4th DCA | 2012-08-08
No. 4D11-4218
TAYLOR and CIKLIN, JJ., concur.
94 So. 3d 658 Florida District Court of Appeal, Fourth District (2012) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Scott Nirk appealed a circuit court's denial of his motion to quash service of process, arguing that the process server failed to place statutorily-required notations on the complaint. The Fourth District Court of Appeal affirmed, holding that Florida law requires such notations only on the summons, not the complaint, and clarified its prior inconsistent precedent.


Holding

A process server must place the required notations only on the copy of the summons served, not on the copy of the complaint. Section 48.031(5) requires these notations on the 'copy served' of 'process,' referring to the summons alone.


Headnotes

[1] Statutorily-required notations on service of process must be placed on the copy of the summons, not the copy of the complaint.

[2] Statutes governing service of process must be read in pari materia to harmonize their provisions and effect legislative intent.

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

Key Quotes

“A person serving process shall place, on the copy served, the date and time of service and his or her identification number and initials for all service of process.”

This statute is the foundation for the court's interpretation that notations must be placed on the summons only.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

A process server served Scott Nirk with a summons and complaint in a case brought by Bank of America. The process server placed the date, time of serv…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
GERBER, J.

GERBER, J.

The defendant appeals the circuit court’s non-final order denying his amended motion to quash service of process. He argues that the court erred because the process server placed certain statutorily-required notations on only the copy of the summons served, and not on the copy of the complaint served. We disagree with the defendant’s argument. We hold that process servers must place the statutorily-required notations on only the copy of the summons served, and not on the copy of the complaint served. To the extent we inadvertently suggested to the contrary in Vidal v. SunTrust Bank, 41 So.3d 401 (Fla. 4th DCA 2010), and Kwong v. Countrywide Home Loans Servicing, L.P., 54 So.3d 1033 (Fla. 4th DCA 2011), we write to clarify those opinions accordingly.

We write this brief opinion in three parts. First, we analyze the two service of process statutes which are relevant here. *659Second, we review our previous opinions in Vidal and Kwong. Third, we clarify those opinions to- definitively articulate that a process server must place the statutorily-required notations on only the copy of the summons served, and not on the copy of the complaint served. In writing this opinion, our review is de novo. See Vidal, 41 So.3d at 402 (appellate court reviews de novo questions of law as to whether a party has complied with the statutes on service of process or whether service is defective and must be quashed).

Section 48.031(l)(a), Florida Statutes (2010), provides, in pertinent part:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

§ 48.031(l)(a), Fla. Stat. (2010) (emphases added). By section 48.031(l)(a)’s plain language above, the “copy of it ” refers to the previously-mentioned “original process,” that is, the summons, and not the later-mentioned “copy of the complaint.” See Hill v. Davis, 70 So.3d 572, 575-76 (Fla.2011) (“[I]f the meaning of the statute is clear then this Court’s task goes no further than applying the plain language of the statute.”) (citations and quotations omitted).

Section 48.031(5), Florida Statutes (2010), provides: “A person serving process shall place, on the copy served, the date and time of service and his or her identification number and initials for all service of process.” § 48.031(5), Fla. Stat. (2010) (emphasis added). Although section 48.031(5) does not expressly state whether its use of the terms “process” and “the copy served” refers to the summons, the complaint, or both, we conclude that section 48.031(5)’s use of the terms “process” and “the copy served” refers to only the summons and not the complaint. We reach this conclusion by reading section 48.031(5) in pari materia with section 48.031(l)(a). See Fla. Dep’t of State, Div. of Elections v. Martin, 916 So.2d 763, 768 (Fla.2005) (“The doctrine of in pari materia is a principle of statutory construction that requires that statutes relating to the same subject or object be construed together to harmonize the statutes and to give effect to the Legislature’s intent.”) (citation omitted). As mentioned above, section 48.031(l)(a)’s plain language differentiates between “a copy of [original process],” i.e., the summons, and “a copy of the complaint.” Applying that differentiation to section 48.031(5), which refers to placing the required notations on the “copy served” of the “process,” i.e., the summons, we conclude that under section 48.031(5), a process server must place the required notations on only the copy of the summons, and not on the copy of the complaint.

We now turn to our previous opinions in Vidal and Kwong. In Vidal, the plaintiffs process server effected service on the defendant. We wrote that, in effecting such service, “[t]he process server placed his initials and the date of service on the copy delivered ... but did not record the time of service on the copy of the complaint.” 41 So.3d at 402. The defendant moved to quash service, arguing that service “was insufficient because the time of service was not noted on the complaint.” Id. The circuit court denied the motion. On the defendant’s appeal, we held that a process server’s failure to note the time of service on the process served rendered service defective. Id. In reaching this holding, however, we used the terms “complaint” and “summons” interchangeably instead of using only the proper term “summons.” Compare id. at 402 (“Because the require*660ment to note the time on a copy of the complaint is a statutory requirement of service, and strict compliance with statutory requirements of service is mandated, we conclude that failure to note the time of service renders the service defective.”), with id. at 403 (“Noting the time and date of service on the copy of the summons left with the person to be served does not insure that the defendant receives due process notice.”) (emphasis added).

In Kwong, where another defendant argued that service was insufficient because the process server “failed to note ... the time of service on the process served,” we agreed with the defendant’s argument and cited Vidal in support. Kwong, 54 So.3d at 1034. However, we did not define what we meant when we referred to “the process served.” We also did not address that, in Vidal, we used the terms “complaint” and “summons” interchangeably instead of using only the proper term “summons.”

We now clarify Vidal and Kwong to resolve any confusion which those opinions inadvertently may have created. We hold that under section 48.031(5), a process server must place the required notations on only the copy of the summons, and not on the copy of the complaint. To the extent in Vidal we used the terms “complaint” and “summons” interchangeably instead of using only the proper term “summons,” we clarify Vidal to refer to only the proper term “summons.” To the extent Kwong relied on Vidal, we clarify Kwong accordingly.

Turning to the merits of this case, because the process server here placed “the date and time of service and his or her identification number and initials” on the copy of the summons served, the process server satisfied section 48.031(5). Thus, the circuit court properly denied the defendant’s amended motion to quash service.

Affirmed. 1

TAYLOR and CIKLIN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …ly with Florida’s service requirements. See § 48.031(l)(a), Fla. Stat. (2016) (providing that “[sjerviee of original process is made by delivering a copy of it to the person to be served with a copy of the complaint”); Nirk v. Bank of America, N.A., 94 So. 3d 658, 659 (Fla. 4th DCA 2012) (“By section 48.031(l)(a)’s plain language ... the ‘copy of it refers to the previously-mentioned ‘original process,’ that is, the summons, and not the later-mentioned ‘copy of the complaint.’ ”) Accordingly, we reverse th…
  • Lilly v. Bank of Am., N.A., 267 So. 3d 452 (Fla. 4th DCA 2019)
    …Am., FSB, 629 So. 2d 295, 296 (Fla. 4th DCA 1993). Appellant’s motion to quash and accompanying affidavit adequately challenged the process server’s failure to comply with section 48.031, Florida Statutes (2015). See Nirk v. Bank of Am., N.A., 94 So. 3d 658, 659- 660 (Fla. 4th DCA 2012) (holding that section 48.031(5), Florida Statutes (2010) required the information to appear on the copy of the summons); see also Romeo v. U.S. Bank Nat’l Ass’n, 144 So. 3d 585, 586 (Fla. 4th DCA 2014) (“When a proce…
  • Body Details v. Harrington (15th Cir. Ct. App. Div. 2013)
    …iew. Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So. 3d 695, 698 (Fla. 4th DCA 2010). Strict compliance with the statutory provisions governing service of process is required in order to obtain jurisdiction over a party. Nirk v. Bank of America, 94 So. 3d 658 (Fla. 4th DCA 2012). Where other requirements for service of process, which do not directly implicate due process, have been violated, courts still have determined that service is defective, and no jurisdiction has been obtained over the defendant.…
    1 / 2

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw