ROSENDO JUNCA, APPELLANT,
v.
MARINE DEALERS UNLIMITED CORP., A FLORIDA CORPORATION, APPELLEE
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The appellate court reversed a lower court's order allowing a creditor's bill to seize funds from an injunction bond. The court found that the creditor failed to properly serve the debtor, violating procedural due process.
No, Marine Dealers Unlimited failed to comply with Florida Rule of Civil Procedure 1.070(e) by not delivering a copy of the initial pleading at the time of personal service of process. Therefore, Junca was not properly served.
[1] A creditor's bill proceeding is subject to the same rules of service of process as any other civil action.
[2] Florida Rule of Civil Procedure 1.070(e) requires that a copy of the initial pleading be delivered at the time of personal service of process.
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Join FLexlaw to unlock all legal intelligence“The procedures providing for proper service are clear and explicit.”
Establishes the court's focus on procedural rules.
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Join FLexlaw to unlock all legal intelligenceRosendo Junca posted a $55,000 injunction bond in a prior lawsuit. After losing a separate federal case, Marine Dealers Unlimited (MDU) filed a credit…
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POLEN, Judge.
Appellant, Rosendo Junca, the plaintiff in a prior lawsuit against the seller of a yacht, was required to post a $55,000.00 injunction bond in the registry of the circuit court. In a separate federal admiralty proceeding against the vessel and appellee, Marine Dealers Unlimited (“MDU”), Junca lost and was ordered to pay $21,380.50 in fees and costs. After the court entered judgment for MDU in the federal suit, MDU filed a separate action for a creditor’s bill against Junca in state court to obtain a lien on the $55,000.00, immediately upon Junca’s moving to release the bond. After his attorney in the federal lawsuit received a copy of MDU’s petition for the creditor’s bill in the mail, Junca filed a special appearance and moved to dismiss MDU’s action based on lack of service. After a hearing on the motion to dismiss, wherein Junca argued the lack of service as well as the merits of the underlying petition, the court denied the motion and granted MDU’s creditor’s bill. It ordered the clerk of court to disburse $21,380.50 of the funds held in connection with Junea’s original lawsuit against the yacht.
The procedures providing for proper service are clear and explicit. Florida Rule of Civil Procedure 1.070(e) requires that a copy of the initial pleading be delivered at the time of personal service of process. This rule applies to creditors’ bill proceedings just as any other civil action. See Sverdahl v. Farmers and Merchants Sav. Bank, 582 So. 2d 738, 740 (Fla. 4th DCA 1991). Junca appeared to contest the service of process at the hearing on his motion to dismiss and did not waive his right to be properly served. Because we find that MDU failed to comply with procedural due process in these proceedings, we do not reach Junca’s remaining arguments on appeal concerning the merits of MDU’s underlying petition.
The Order and Final Judgment of the circuit court, therefore, is reversed for further proceedings consistent with this opinion.
REVERSED.
STEVENSON and GROSS, JJ., concur.
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Citator
Cited By
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Varveris v. Alberto M. Carbonell, P.A., 773 So. 2d 1275 (Fla. 3d DCA 2000)…). See State ex rel. Phoenix Tax Title Corp. v. Viney, 120 Fla. 657, 163 So. 57 (1935); see also Exceletech, Inc. v. Williams, 597 So. 2d 275 (Fla.1992); Patterson v. Venne, 594 So. 2d 331 (Fla. 3d DCA 1992); Junca v. Marine Dealers Unlimited Corp., 706 So. 2d 326 (Fla. 4th DCA 1997). Here, it is undisputed that Marie was not served personally or by a substituted method sufficient to confer jurisdiction upon the court. Thus, the judgment must be reversed as she was not properly brought into the proceedings su…
Authorities Cited
- Sverdahl v. Farmers & Merchs. Sav. Bank, 582 So. 2d 738 (Fla. 4th DCA 1991)