MARIA HENRY

v.

ANTONIO CARAM

We find the trial court erred both in denying Appellant's Motion to Quash Service and Set Aside Default Judgment, and in later denying Appellant's Motion for Reconsideration. [*1] Tenant, Antonio Caram, sued his landlord, Maria Henry, to recover a security deposit. Mr. Caram's process server filed a verified return of service affidavit swearing that he had accomplished substitute service on Ms. Henry by serving a copy of the complaint upon Ms. Henry's husband, Michael Henry, at Ms. Henry's usual place of abode. When Ms. Henry failed to appear at the scheduled Pre-Trial Conference, the trial court entered a default final judgment against her. Two weeks later, Ms. Henry filed a pro se Motion to Quash Service and Set Aside Default Judgment. She supported the motion with her own affidavit, and affidavits from her husband and Kevin Cottrell ("Cottrell"). The gist of these affidavits was that Michael Henry was out of town when service was effectuated, Cottrell was a guest at the Henry residence on the date of service, and it was Cottrell - not Michael Henry - that the process server served. If these claims are true, the process server served a person that did not reside at the Ms. Henry's usual place of abode, the substitute service was therefore improper, see § 48.031(1)(a), Fla. Stat. (2017), and the motion to quash should have been granted.

Whether the claims in the affidavits are true, however, is unknowable at this time because the trial court denied the motion to quash without a hearing,¹ much N 1 See Patricia Russell Designs, Inc. v. Gans, 277 So. 2d 801, 801 (Fla. 3d DCA 1973) (“The record reveals that appellant's motion [for relief from judgment] was timely filed and supported by an affidavit setting out facts relied upon for relief. The motion was denied without a hearing before the trial judge. We will not deal with the merits of appellant's contention at this time [*2] less an evidentiary hearing. This was clear error. See Hernandez v. Nat'l Bank of Florida, 423 So. 2d 920, 920 (Fla. 3d DCA 1982) ("trial court abused its discretion in denying, without an evidentiary hearing, the motion to vacate and set aside the final judgment entered after default"); Linville v. Home Sav. of America, FSB, 629 So. 2d 295, 296 (Fla. 4th DCA 1993) (“[N]either the submission of affidavits nor argument of counsel is sufficient to constitute an evidentiary hearing. The unrebutted allegations contained in appellant's motion to quash service of process and the supporting affidavit, if proven by clear and convincing evidence, would establish appellee's failure to effect valid service of process as required by section 48.031, Florida Statutes (1991). Appellant is therefore entitled to an evidentiary hearing on her motion to quash service of process.") (citations omitted) The trial court compounded the error when Ms. Henry, this time through counsel, filed a motion for reconsideration. This motion was based expressly on the trial court's failure to hold an evidentiary hearing on the motion to quash. Nevertheless, the trial court denied the motion for reconsideration - again without a hearing - erroneously asserting in its Order that the motion for reconsideration was based on the same grounds which had been previously raised, thus failing to since we are of the opinion that the trial judge abused his discretion in not allowing appellant a hearing on his motion."). [*3] acknowledge that Ms. Henry based the motion on the trial court's failure to hold an evidentiary hearing.

Mr. Caram's argument that the trial court properly denied the motion to quash because it merely denied service is unsupported by the record and by Florida law. As detailed above, Ms. Henry's affidavits were far from "mere" denials of service. In other words the motion didn't simply say, "I never got it," or "it wasn't me." The affidavits provided detailed sworn testimony from 3 separate individuals which, if true, would constitute a valid legal basis to challenge service.

It is entirely proper for a party to challenge substitute service if it can establish that service was made on a person that does not reside at the usual abode of the person being served. See Williams v. Nuno, 239 So. 3d 153, 155 (Fla. 3d DCA 2018) (trial court correctly denied motion to quash service after holding an evidentiary hearing where defendant alleged through affidavit that the person served did not reside at defendant's usual place of abode); Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So. 3d 177, 180 (Fla. 3d DCA 2011) (parties can challenge "invalid service of process (for example, a claim that the residence where service was effectuated was not the defendant's usual place of abode)"). In this exact situation, Florida courts have consistently found that a trial court must hold an evidentiary hearing to ascertain whether substitute service was properly effectuated. See Fern, Ltd. v. Road Legends, Inc., 698 So. 2d 364, 365 (Fla. 4th [*4] DCA 1997) (court required to hold evidentiary hearing in light of allegations in affidavit of defendant, because if proven they would establish that person served was not qualified to accept service for defendant); Monsour v. Balk, 705 So. 2d 968, 969 (Fla. 2d DCA 1998) ("If the allegations in Dr. Monsour's and his son's affidavits are true, Balk did not obtain service on Dr. Monsour. Balk argues that he obtained substituted service by serving Dr. Monsour's son. Section 48.031(1)(a), Florida Statutes (1995), provides for service of process by delivery to the person at their regular abode with any person residing therein who is fifteen years or older. This does not apply because Dr. Monsour's regular place of abode is in Pennsylvania.").

Accordingly, the Order denying Appellant's Motion to Quash Service and Set Aside Default Judgment is REVERSED. This cause is REMANDED to the trial court with directions that it hold an evidentiary hearing on the merits of the motion, and for such further proceedings as may be necessary.

WALSH and REBULL, JJ., concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.