BACHE, HALSEY, STUART, SHIELDS, INCORPORATED, A FOREIGN CORPORATION AUTHORIZED TO DO BUSINESS IN FLORIDA, APPELLANT,
v.
VICTOR MENDOZA, APPELLEE
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Bache, Halsey, Stuart appealed an order setting aside a default judgment against Mendoza. The Florida District Court of Appeal reversed its initial dismissal of the appeal and, on the merits, affirmed the trial court's decision to vacate the default, finding that service of process did not comply with Florida's statutory requirements because the defendant was not informed of the contents of the papers served.
The court affirmed the trial court's order setting aside the default judgment, holding that service of process did not comply with section 48.031(1) because the deputy sheriff failed to inform Mrs. Mendoza of the contents of the papers served.
[1] Orders granting a motion to vacate a default are reviewable under Florida Rule of Appellate Procedure 9.130(a)(4).
[2] Service of process requires informing the person of the contents of the papers being served, not just leaving them with a resident of the household.
Previewing 2 of 4 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“Section 48.031(1), Florida Statutes (1979) permits service of original process to be made by leaving copies with any person fifteen years or more who resides at the usual place of abode of the person to be served and 'informing the person of their contents.'”
Establishes the statutory requirement for proper service of process in Florida.
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Join FLexlaw to unlock all legal intelligenceA deputy sheriff served process on Mrs. Mendoza at her residence by knocking on the door, saying 'Mendoza,' and delivering papers. The deputy did not …
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BASKIN, Judge.
ON MOTION FOR REHEARING
Subsequent to the entry of our order of May 5, 1981, 397 So. 2d 1011, dismissing an appeal from an order granting a motion to vacate a default, we granted rehearing. Upon rehearing we now vacate our order of dismissal, withdraw our mandate, and reinstate the appeal as appropriate under Florida Rule of Appellate Procedure 9.130(a)(4).
According to Committee Notes: “Other non-final orders entered by a lower tribunal after final order are reviewable and are to be governed by this rule. Such orders include, for example, an order granting a motion to vacate default.” The appeal was from an order granting Defendant’s Motion to Set Aside Default and Final Judgment, see Yates v. Roller Skating Rinks, Inc., 379 So. 2d 1333 (Fla. 5th DCA 1980), and was therefore proper. We have reviewed the merits of the parties’ contentions presented in their briefs and at oral argument, and we find no error committed by the trial court in setting aside default judgment.
Section 48.031(1), Florida Statutes (1979) permits service of original process to be made by leaving copies with any person fifteen years or more who resides at the usual place of abode of the person to be served and “informing the person of their contents.” The deputy sheriff did not recall explaining to Mrs. Mendoza the contents of the papers he left. Mrs. Mendoza testified at her deposition that service consisted solely of a knock on the door, a man saying “Mendoza”, and delivery of papers, the contents of which she did not understand. Under these circumstances, we find no compliance with section 48.031(1), and we affirm the trial court’s order setting aside default judgment.
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Magazine v. Bedoya, 475 So. 2d 1035 (Fla. 3d DCA 1985)…es in some way negate the presumption arising from the return of service, it falls far short of meeting the clear and convincing standard necessary to overcome the presumption. See Slomowitz; see also Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So. 2d 558 (Fla. 3d DCA 1981) (testimony of the recipient and the process server established a failure to meet the requirement that the person served with papers be informed of their contents).…
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Mogul v. Fodiman, 406 So. 2d 1225 (Fla. 5th DCA 1981)…entered after final order on authorized motions are reviewable by the method prescribed by this rule, (emphasis added). . Yates v. Roller Skating Rinks, Inc., 379 So. 2d 1333 (Fla. 5th DCA 1980). . Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So. 2d 558 (Fla.3d DCA 1981).…
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Cason v. Hammock, 908 So. 2d 512 (Fla. 5th DCA 2005)…e is neither a guardian nor a legal guardian of Sarah.2 Moreover, there is nothing in the record to suggest that the babysitter was ever informed of the contents of the paper for which she signed. See Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So. 2d 558 (Fla. 3d DCA 1981) (holding that failure to inform the person at the usual place of abode on whom the documents were served of the contents of the document renders the service defective). Indeed, the record shows that' Hammock mailed the Notice of A…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yates v. Roller Skating Rinks Inc., 379 So. 2d 1333 (Fla. 5th DCA 1980)
- Bache v. Mendoza, 397 So. 2d 1011 (Fla. 3d DCA 1981)