INCLAIM, LLC

v.

STRUCTURAL WRAP, LLC

Third District Court of Appeal State of Florida

Opinion filed May 28, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-1082 Lower Tribunal No. 23-108477-CC-05 ________________

InClaim, LLC, Appellant,

vs.

Structural Wrap, LLC, Appellee.

An Appeal from a non-final order from the County Court for Miami- Dade County, Lissette De La Rosa, Judge.

Legon Fodiman & Sudduth, P.A., and Todd A. Fodiman and Jeffrey A. Sudduth, for appellant.

Giasi Law, P.A., and Melissa A. Giasi (Tampa), for appellee.

Before EMAS, FERNANDEZ and MILLER, JJ.

EMAS, J.

2

INTRODUCTION

InClaim, LLC, (“InClaim”) plaintiff below, appeals an order granting the amended verified motion of defendant Structural Wrap, LLC (“Structural Wrap”) to vacate a default final judgment. The trial court granted the motion and vacated the default final judgment, concluding the judgment was void because InClaim failed to utilize due diligence in attempting to serve Structural Wrap, and thus improperly relied upon section 48.161, Florida Statutes (2023), to effectuate service on Structural Wrap through substitute service on the Secretary of State. We affirm and find no error in the trial court’s determination that InClaim failed to utilize due diligence and that service of process was not properly effectuated, rendering the default final judgment void. We therefore affirm the trial court’s order setting aside the default final judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2023, InClaim filed suit against Structural Wrap in county court, asserting one count of breach of contract. Attached to its complaint was the contract between the parties, dated September 15, 2020, which expressly provided that notices were to be sent to:

STRUCTURAL WRAP, LLC

Attention: Spiro Naos and Larry Bond 10 NW 42nd Ave- Suite 320

MIAMI, FL 33126

(Emphasis added). InClaim sent a copy of the default final judgment by certified mail to Structural Wrap, Larry Bond and Spiro Naos, at both the 8793 S.W. 131 Street address and the 10 N.W. 42nd Avenue address. Less than a week later, on February 16, 2024, Structural Wrap filed a verified motion to vacate the default final judgment, asserting the default final

STANDARDS OF REVIEW

The standard of review of an order granting or denying a motion to vacate a default judgment is gross abuse of discretion. See Rodriguez v. Falcones, 314 So. 3d 469, 471 (Fla. 3d DCA 2019) (“An order granting a motion to vacate a default final judgment is reviewed for a gross abuse of discretion.”) (citing Chetu, Inc. v. Franklin First Fin., Ltd., 276 So. 3d 39, 41 (Fla. 4th DCA 2019); Bequer v. Nat'l City Bank, 46 So. 3d 1199, 1201 (Fla. 4th DCA 2010); and LPP Mortg. Ltd. v. Bank of Am., N.A., 826 So. 2d 462, 463-64 (Fla. 3d DCA 2002)).

ANALYSIS AND DISCUSSION

The trial court found that the default final judgment was void because InClaim failed to reasonably employ knowledge at its command, make a conscientious effort and conduct a diligent search for where personal service could be effectuated. Specifically, the court found that, in this breach of contract action, the underlying contract “contains information that conscientious efforts appropriate to the circumstances would have revealed, i.e., the names and address for [Structural Wrap’s] corporate officers at a minimum, none of which was cited to by [InClaim] in the Verified Return of Non-Service and Affidavit of Compliance . . . .” In other words, the court determined that InClaim failed to use reasonable diligence to effectuate personal service before utilizing substitute service on the Secretary of State because there was no attempt by InClaim to serve Structural Wrap at the address listed in the contract for notices to be sent to Structural Wrap and its

(Internal citations omitted). See also Alvarado v. Cisneros, 919 So. 2d 585, 588-89 (Fla. 3d DCA 2006) (“Because substituted service of process statutes provide an exception to the general rule that a defendant must be personally served, they must be strictly construed to protect due process guarantees.”) (citing Monaco v. Nealon, 810 So. 2d 1084, 1085 (Fla. 4th DCA 2002) and McAlice v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979)). “Substitute service is unauthorized if personal service could be obtained through reasonable diligence.” Coastal Cap. Venture, LLC v.

10 (3) If service cannot be made on a registered agent of the domestic limited liability company or registered foreign limited liability company because the domestic limited liability company or registered foreign limited liability company ceases to have a registered agent, or if the registered agent of the domestic limited liability company or registered foreign limited liability company cannot otherwise be served after one good faith attempt because of a failure to comply with this chapter or chapter 605, the process may be served on any of the following:

(a) Any manager of a manager-managed domestic limited liability company. . . .

(b) Any member of a member-managed domestic limited liability company. . . .

(c) Any person listed publicly by the domestic limited liability company . . . on its latest annual report, as most recently amended.

(4) If, after due diligence, the process cannot be completed under subsection (2) and if either:

(a) The only person listed publicly by the domestic limited liability company. . . on its latest annual report, as most recently amended, is also the registered agent on whom service was attempted under subsection (2); or (b) After due diligence, service was attempted on at least one person listed publicly by the domestic limited liability company or registered foreign limited liability company on its latest annual report, as most recently amended, and cannot be completed on such person under subsection (3),

the service of process may be served as provided in s. 48.161 on the Secretary of State as an agent of the domestic limited liability company or the registered foreign limited liability company or by order of the court under s. 48.102.

(Emphasis added).

11 Pursuant to section 48.161(4), Florida Statutes (2023), due diligence is considered to have been used where the party: (a) Made diligent inquiry and exerted an honest and conscientious effort appropriate to the circumstances to acquire the information necessary to effectuate personal service;

(b) In seeking to effectuate personal service, reasonably employed the knowledge at the party's command, including knowledge obtained pursuant to paragraph (a); and (c) Made an appropriate number of attempts to serve the party, taking into account the particular circumstances, during such times when and where such party is reasonably likely to be found, as determined through resources reasonably available to the party seeking to secure service of process.

(Emphasis added). Thus, only after a plaintiff exercises “due diligence,” as defined above, in attempting to serve the registered agent or a person publicly listed by the LLC, may a plaintiff rely upon substitute service to serve a Florida LLC by serving the Secretary of State. In the instant case, the trial court found InClaim failed to exercise such due diligence because it did not attempt to serve Structural Wrap or its managers, Spiro Naos or Larry Bond, at 10 NW 42nd Avenue, Suite 320, Miami, FL 33126, even though: (1) this was a breach of contract claim and the above address was expressly listed in the underlying contract between

12 the parties as the address for notices to be delivered to the Structural Wrap and its managers; (2) InClaim prepared a default final judgment that listed the above address as the only address of Structural Wrap; and (3) InClaim sent a copy of the default final judgment by certified mail to the above address. We find no error in the trial court’s determination.

CONCLUSION

We find no error in the trial court’s determination that InClaim failed to utilize due diligence and that service of process was not properly effectuated, rendering the default final judgment void. Tarves, 368 So. 3d at 507.1 We therefore affirm the trial court’s order setting aside the default final judgment.

Affirmed.