SEAN M. COUTTS, APPELLANT,
v.
SABADELL UNITED BANK, N.A., APPELLEE

Fla. 3d DCA | 2016-09-07
No. 3D16-418
Before EMAS, LOGUE and SCALES, JJ.
199 So. 3d 1099 Florida District Court of Appeal, Third District (2016) Positive Treatment
Cited by 4 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

Coutts appeals the trial court's denial of his motion to set aside a default judgment and quash service of process. The court affirmed, holding that the return of service was facially valid under Florida's service provisions and that Coutts failed to present clear and convincing evidence that service was improper.


Holding

The court affirmed the trial court's order. A return of service that is regular on its face and complies with section 48.21 is presumptively valid, and Coutts failed to meet his burden of proving by clear and convincing evidence that service was invalid. Additionally, Coutts cannot appeal the trial court's failure to conduct an evidentiary hearing when his own counsel affirmatively stated the matter could be decided as a matter of law.


Headnotes

[1] A party who affirmatively advises the court that an issue can be decided as a matter of law waives the right to an evidentiary hearing on that issue.

[2] A return of service is facially valid if it contains the information required by section 48.21, Florida Statutes, and is not required to contain information demonstrating…

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Key Quotes

“The party who seeks to invoke the court's jurisdiction bears the burden of proving proper service. The burden requires the party to demonstrate that the return of service is, under section 48.21, facially valid or regular on its face.”

Establishes the initial burden on the plaintiff to show proper service and what constitutes a valid return of service.

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Facts & Procedural History

Sabadell United Bank filed a complaint against Coutts and obtained a clerk's default and default final judgment when Coutts did not respond. Coutts fi…

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Opinion of the Court
EMAS, J.

EMAS, J.

Sean M. Coutts, the defendant below, appeals from the trial court’s order denying his motion to set aside a default and *1100final judgment, and to quash service of process. We affirm.

Sabadell United Bank, N.A., the plaintiff below, filed and served its complaint. When Coutts did not respond to-the complaint, Sabadell obtained a clerk’s default and, subsequently, a default final judgment. Thereafter, Coutts filed a verified motion to set aside the default and final judgment, and to quash service of process, contending that Sabadell failed to properly effectuate service of process under the substitute service provisions of section 48.031(6)(a) FÍóridá Statutes (2015), which provides:

If the only address for a'person to be served which is discoverable through public records is a private mailbox, a virtual office, or an executive office or mini suite, substitute service may be made by leaving a copy of the process with the person in charge of the private mailbox, virtual office, or executive office or mini suite, but only if the process server determines that the person to be served maintains a mailbox, a virtual office, or an executive office or mini suite at that location.

Coutts scheduled his motion for a thirty-minute, special-set evidentiary hearing before the trial court. However, neither Coutts nor his counsel of record attended the hearing. Instead, a “coverage” attorney, who had not filed a notice of appearance as co-counsel, attended the hearing on behalf of Coutts.1

Nevertheless, the hearing proceeded as scheduled. When the trial court inquired of coverage counsel if he was prepared to present evidence, coverage counsel stated to the court: “This can be decided as a matter of law.” At the conclusion of the hearing, the trial court entered an order denying Coutts’s motion.

On appeal, Coutts maintains, inter alia, that the trial court erred because it failed to afford the appellant an evidentia-ry hearing. This argument is without merit, as Coutts’s coverage counsel affirmatively advised the court that no eviden-tiary hearing was necessary and that the issue could be decided as a matter of law. See Pope v. State, 441 So.2d 1073, 1076 (Fla.1983) (holding that “[a] party may not invite error and then be heard to complain of that error on appeal”); Behar v. Southeast Banks Trust Co., N.A., 374 So.2d 572 (Fla. 3d DCA 1979).

Coutts further contends that Saba-dell failed to establish proper service of process because the return of service did not include the necessary information to show compliance with the provisions of section 48.031(6)(a), which permits substitute service on a private mailbox “only if the process server determines that the person to‘ be served maintains a [private] mailbox .,. at that location.”

However, the premise of Coutts’s argument has already been considered and rejected by the Florida Supreme Court in Koster v. Sullivan, 160 So.3d 385, 389 (Fla.2015), wherein the court addressed whether “the specifics regarding the manner of service as set forth in section 48.031 must be indicated in a valid return of service.” Id. at 390. In rejecting this argument, the court acknowledged that the return of service of process provision (section 48.21(1), Florida Statutes (2015))2, clearly and un*1101ambiguously delineates what information must be contained in a valid return of service. The court noted that “the language of section 48.21 does not expressly incorporate section 48.031, nor does it refer to the factors contained within section 48.031(l)(a).” The court refused to en-graft the provisions of section 48.031 onto section 48.21, acknowledging it “has no power to ‘extend, modify, or limit [the section’s] express terms or its reasonable and obvious implications’ by adding requirements not present in the statute,” Id. at 389-90 (quoting Am. Bankers Life Assur. Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)).

Accordingly, Roster held that, to be considered regular on its face, a return of service must contain the information set forth in section 48.21, but need not contain information showing compliance with section 48.031(l)(a).3 Coutts has failed to distinguish Roster or to persuade us that its analysis in the context of challenge under section 48.031(l)(a) is inapplicable in the context of a challenge under section 48.031(6)(a). Applying Roster, we conclude that the return of service complied with section 48.21 and contained the requisite information as set forth in that provision.

The Roster court reaffirmed the initial burden placed on a plaintiff to establish proper service:

The party who seeks to invoke the court’s jurisdiction bears the burden of proving proper service. The burden requires the party to demonstrate that the return of service is, under section 48.21, facially valid or regular on its face. A return of service that is regular on its face must include the statutory factors contained in section 48.21.

Koster, 160 So.3d at 389. Importantly, a “return of service that 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, 818 (Fla. 3d DCA 1996).

Coutts concedes that the return of service was regular on its face, containing the information required by section 48.21. Because the return of service was regular on its face, it was presumptively valid, shifting to Coutts the burden of establishing, by clear and convincing evidence, that service of process was invalid. Koster, 160 So.3d at 389; Morgan Stanley Smith Barney, LLC v. Gibraltar Private Bank & Trust Co., 162 So.3d 1058, 1060 (Fla. 3d DCA 2015). The trial court determined that Coutts failed to meet his burden, and we find no error in that determination. The other issues raised by Coutts were either waived or are otherwise without merit.

Affirmed.


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Citator

Cited By

  • Morales LAW Grp., P.A. v. Tres Rodman, 305 So. 3d 759 (Fla. 3d DCA 2020)
    …(Fla. 4th DCA 1983). In the present case, the trial court found that the verified return of service was regular on its face. Therefore, the burden then shifted to Morales Law to show that service was defective. Coutts v. Sabadell United Bank, N.A., 199 So. 3d 1099, 1101 (Fla. 3d DCA 2016). Morales Law did not proffer any evidence at the hearing, either by affidavit, sworn testimony, documents, or other competent evidence, to counter the valid service on its employee. Moreover, Morales Law’s counsel’s unsworn…
  • …Beach), for appellants. Shubin & Bass, P.A., and John K. Shubin, Juan J. Farach, Jamie L. Katz and Katherine R. Maxwell, for appellee. Before FERNANDEZ, C.J., and LOGUE and GORDO, JJ. GORDO, J. 2 Affirmed. Coutts v. Sabadell United Bank, N.A., 199 So. 3d 1099, 1100 (Fla. 3d DCA 2016) (“This argument [as to an evidentiary hearing] is without merit, as [Appellant]’s coverage counsel affirmatively advised the court that no evidentiary hearing was necessary and that the issue could be decided as a matter…
  • Carrillo v. State (Fla. 3d DCA 2023)
    …PER CURIAM. Affirmed. See Coutts v. Sabadell United Bank, N.A., 199 So. 3d 1099, 1100 (Fla. 3d DCA 2016) (appellant maintains “that the trial court erred because it failed to afford the appellant an evidentiary hearing. This argument is without merit, as [appellant’s trial] counsel affirmatively advised the court that no eviden…

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