County Civil Court: CIVIL PROCEDURE – Service of Process –  default judgment - pluries summons on Secretary of State was defective – Plaintiff failed to meet statutory requirements of service of process set forth in Florida Statutes, section 48.161 – Defendant did not execute a return receipt and record was void of evidence showing Defendant intentionally failed or refused service – Plaintiff also failed to file its Affidavit of Service of Process on or before the return of process on Secretary of State – Default Final Judgment reversed. Cooper v. F.A. Management Solutions, Inc., Appeal No. 05-0093AP-88B (Fla. 6th Cir. App. Ct. August 7, 2006). 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

MARIO D. COOPER,

                        Appellant,

 

vs.                                                                                    Appeal No.05-0093AP-88B

                                                                                         UCN522005AP000093XXXXCV

 

F.A. MANAGEMENT SOLUTIONS, INC.,

                        Appellee.

____________________________________/

 

Appeal from Default Final Judgment

Pinellas County Court

Judge Walt Fullerton

 

Mario D. Cooper, pro se

 

 

 

ORDER AND OPINION

 

THIS CAUSE came before the Court on appeal, filed by Mario D. Cooper (Cooper), from the Default Final Judgment, entered May 13, 2005, in favor of F.A. Management Solutions, Inc. (F.A.), and the Order Denying Rehearing, entered October 14, 2005.  Upon review of the Initial Brief,[1] the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.

The record shows that on September 14, 2004, F.A., a debt collection agency, filed its Complaint against Cooper, seeking to collect an unpaid credit card debt of

$ 1,268.98, plus interest.  A summons was issued for Cooper at 901 28th Avenue South, St. Petersburg, the residence of Carl Cooper, Cooper’s father.  The summons was returned unserved by F.A.’s process server and indicated that the “subject is in law school in Gainesville, FL.  An Alias Summons was then issued for Cooper at the same St. Petersburg address.  The summons was returned unserved by the Pinellas County Sheriff’s Office with the notation that the father stated that Cooper “lives in Gainesville, FL but exact address is unknown.” 

As set forth in the Affidavit of Service of Process, signed March 28, 2005, by F.A.’s counsel, because efforts to locate Cooper had been exhausted and Cooper was attempting to conceal his whereabouts, F.A. sought to perfect service pursuant to Florida Statutes, Section 48.161 and 48.181.  On February 23, 2005, service on behalf of Cooper, via Pluries Summons, was accepted by the Secretary of State.  On March 1, 2005, a Notice of Service of Process, along with a copy of the complaint and summons, was mailed to Cooper, via certified mail, return receipt requested, at the St. Petersburg address.  The Notice informed Cooper that he must attend the pre-trial hearing scheduled for April 6, 2005.  Cooper did not appear for the pre-trial hearing and a Default Final Judgment was entered against him on May 13, 2005.  A copy of the order was mailed to Cooper at the same St. Petersburg address where service of process had been attempted.  On June 5, 2005, Cooper filed Defendant’s Motion to Set Aside Default Judgment which was denied by the trial court in its Order Denying Rehearing, entered October 11, 2005. 

            Before this Court, Cooper argues that the trial court erred in denying his Motion to Set Aside Default Judgment when F.A. failed to comply with the statutory requirements of Florida Statutes, Section 48.161, and F.A. did not diligently search for Cooper’s whereabouts.  This Court’s standard of review of an order denying a motion to vacate a default judgment is whether there has been a gross abuse of discretion.  See Torres v. Arnco Construction, Inc., 867 So.2d 583, 586 (Fla. 5th DCA 2004).  Statutes governing service of process must be strictly construed to assure that the defendant is notified of the proceedings and has the opportunity to protect his rights.  See Shepheard v. Deutsche Bank Trust Company Americas, 922 So.2d 340, 343 (Fla. 5th DCA 2006); see also Torres, 867 So.2d at 586.  Judgment entered without proper service of process is void.  See id.

            In attempting to perfect substitute service pursuant to Section 48.161, three requirements must be met:  (1) notice must be sent by registered or certified mail; (2) the defendant’s executed return receipt must be filed on or before the day of process; and, (3) the plaintiff’s affidavit of compliance must be filed on or before the day of the process.  See Fla. Stat. 48.161(1); see also Wyatt v. Haese, 649 So.2d 905, 907 (Fla. 4th DCA 1995).  As in Wyatt, the certified letter in this case was returned “UNCLAIMED.”  But there is nothing in the record indicating that Cooper intentionally failed or refused to claim the notices.  Indeed, both returns of the summons reflect that Cooper was attending law school in Gainesville. 

            As in Wyatt, the Court finds that the statutory requirements for service on the Secretary of State was not met because no return receipt was obtained, nor does the record suggest that Cooper intentionally rejected service.  Further, F.A. failed to file its Affidavit of Service of Process averring compliance with the statutory requirements on or before the return of process on the Secretary of State, which occurred on or about February 23, 2005.  See id.   The Affidavit was not filed until March 31, 2005. 

           

 

 

Therefore, it is,

ORDERED AND ADJUDGED that Final Default Judgment is reversed and this cause remanded for action consistent with this Order and Opinion. 

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ______ of August 2006.

 

 

 

                                                ______________________________

                                                DAVID A. DEMERS

                                                Circuit Judge, Appellate Division

 

 

 

 

 

 

_____________________________                          _____________________________

PETER RAMSBERGER                                          ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

 

 

 

 

 

 

 

Copies furnished to:

 

Judge Walt Fullerton

 

Mario Cooper

2777 S.W. Archer Road

Gainesville, FL  32608

 

Hugh Shafritz, Esquire  

One S.E. 4th Avenue, Suite 212

Delray Beach, FL  33483

 



[1] F.A. failed to file an Answer Brief even after being directed by this Court to do so.