County Civil Court: CIVIL PROCEDURE – Default - Service of Process.  Return of service regular on its face presumed valid.  Appellant failed to present clear and convincing evidence at Fla. R. Civ. P. 1.540(b) hearing to impeach sworn return of service by process server.  Trial Court properly denied motion to set aside final judgment of foreclosure and to rescind foreclosure sale and to set aside entry of default.  Affirmed.  Koster v. Island Yacht Club CAI, No. 11-000033AP-88A (Fla. 6th Cir. App. Ct. December 16, 2011).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

LANCE KOSTER,                                                  

      Appellant,                                                           Case No.: 11-000033AP-88A

                                                                                    UCN: 522011AP000033XXXXCV

 

v.

 

ISLAND YACHT CLUB CAI, a not for profit

corporation; PETER MARDER;

DEPARTMENT OF THE TREASURY--INTERNAL

REVENUE SERVICE; STATE OF FLORIDA,

DEPARTMENT OF AGRICULTURE,

      Appellees.                     

______________________________________/

 

Opinion Filed  ______________

 

Appeal from Non-final order

Pinellas County Court

Judge John Carassas

 

William Newt Hudson, Esq.

Attorney for Appellant

 

Astrid Guardado, Esq.

Attorney for Appellee

 

No appearance for Appellees Peter Marder,

Internal Revenue Service,

Florida Department of Agriculture.

 

PER CURIAM.

 

            Lance Koster appeals the County Court's non-final order denying his "Motion of Defendant, Lance Koster, to Set Aside Final Judgment of Foreclosure and to Rescind Judicial Sale and to Set Aside Entry of Default."  See Fla. R. App. P. 9.130(5).  Upon review of the briefs and the appendices, this Court dispensed with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.  We affirm.

Statement of Case

            On June 8, 2009, Island Yacht Club CAI filed an action against Mr. Koster to foreclose a claim of lien for condominium association assessments on a parcel composed of a boat slip (a "documinium") at the Island Yacht Club, Clearwater Beach, Florida.  A return of service was filed with the Clerk of Court representing that Mr. Koster was served by substitute service on June 12, 2009.  On April 16, 2010, the Clerk of Court entered a default against Mr. Koster.  Island Yacht Club filed a motion for summary judgment and after a hearing, on August 16, 2010, a Final Judgment of Foreclosure was entered.  A judicial foreclosure sale was conducted on September 16, 2010, and the Horwitz Living Trust was the successful bidder.  A Certificate of Title was issued by the Clerk of Court on October 14, 2010. 

            On November 2, 2010, Mr. Koster filed the "Motion of Defendant, Lance Koster, to Set Aside Final Judgment of Foreclosure and to Rescind Judicial Sale and to Set Aside Entry of Default."  Hearings on the motion were conducted on March 7, 2011, and April 27, 2011.  The trial court entered an order on May 23, 2011.  The order states:

            The Motion to Set Aside Final Judgment of Foreclosure and to Rescind Judicial Sale and to Set Aside Entry of Default is denied, as the Court finds that, on its face, the June 12, 2009, Return of Service Affidavit of process server, Nathaniel McQuay, is regular and thus evidence of adequate service upon Defendant, Lance Kostner (sic).

 

This appeal followed.

            On appeal, Mr. Koster raises two arguments.  First, he asserts that the return of service was defective on its face, and, absent proof that valid service had been made, the ensuing default judgment must be set aside as void.  Second, he argues that assuming the return of service was regular on its face, clear and convincing evidence of non-service was presented, mandating that the default judgment be set aside as void.

Standard of Review

            The standard of review for an order of the trial court denying a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b) is whether there has been an abuse of discretion.  Carmona v. Wal-Mart Stores, East, LP, 2011 WL 5600239 (Fla. 2d DCA Nov. 18, 2011)(citing Leach v. Salehpour, 19 So. 3d 342, 344 (Fla. 2d DCA 2009)).[1]  In reviewing the decision of the trial court, the appellate court must apply a "reasonableness" test.  Jerue v. Holladay, 945 So. 2d 589, 591 (Fla. 2d DCA 2006).

            The definition of a judicial abuse of discretion was provided by the Florida Supreme Court in Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980):

            Discretion ... is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

 

Analysis

            The sworn Return of Service of record executed by process server Nathaniel McQuay states that the process service company received the process on June 5, 2009, at 2:37 p.m.  The process server affirmed that on June 12, 2009, at 10:42 a.m., Mr. Koster was served at an address in Clearwater, Florida.  Mr. McQuay states that he

            SUBSTITUTE served by delivering a true copy of the Summons, notice of Lis Pendens, Complaint with Exhibits on Janet Koster, the spouse of the person to be served in any place in the county, if the cause of action is not an adversarial proceeding between the spouse and the person to be served, if the spouse requests such service, and if the spouse and the person to be served are residing together in the same dwelling, pursuant to Florida Statute, Section 48.031(2)(a).

            . . . .

            Additional Information pertaining to this Service:  Upon inquiry defendant is married.

 

(Emphasis in original).  The return of service tracks the service of process statute at issue in the present case, section 48.031(2)(a), Florida Statutes (2009).[2]  

            In order to be facially sufficient, the return of service must comply with the requirements of section 48.21, Florida Statutes (2009).  A return of service must contain the following notations: (1) the time when it comes to hand; (2) the time when it is executed; (3) the manner of execution; and (4) the name of the person on whom it was executed.  See Khambaty v. Lepine, 734 So. 2d 1183, 1185 (Fla. 2d DCA 1999). 

            Mr. Koster acknowledges that section 48.21 is applicable in the present case.  However, he observes that under section 48.031(2)(a), the process server is required note "the manner of service" on the return of summons.  According to Mr. Koster, this "manner of service" allegedly requires the process server to include the information (1) that the cause of action is not an adversarial action between Janet Koster and Lance Koster; (2) that Janet Koster and Lance Koster are residing in the same household; and (3) that Janet Koster requested such service.  This Court was unable to find, and Mr. Koster concedes that there is no case law interpreting the exact meaning of the phrase "the manner of service" in section 48.21 as it relates to substituted service upon a spouse pursuant to section 48.031(2)(a).

            In the present case, the trial court concluded that the notation by the process server that the substituted service was accomplished by service upon Janet Koster, Mr. Koster's wife, as set out above was sufficient to demonstrate that the service was regular on its face.

            A return of service that is regular on its face is presumed valid unless clear and convincing evidence is presented to the contrary.  Lazo v. Bill Swad Leasing Co., 548 So. 2d 1194, 1195 (Fla. 4th DCA 1989).  Clear and convincing evidence requires that the witnesses to a fact be credible; the facts testified to must be distinctly remembered; the details must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts in issue.  Id.     This Court has reviewed the testimony and evidence presented at the hearings on Mr. Koster's motion.  At the March 7, 2011, hearing the following colloquy occurred concerning the substituted service of process upon Janet Koster:

Atty Hudson (for Mr. Koster):  And do you recall anyone telling you that they were           there to, perhaps, serve some papers?

 

Mrs. Koster:   There has [sic] been people that came in that—yes.  People that came in and said, you know, I have paperwork for Lance.

 

Atty Hudson: Have you ever told a process server to serve you papers on Lance's            behalf?

 

Mrs. Koster:   No.  I would not take any legal papers for Lance.  I don't think he'd take them for me.

 

(3/7/11 Trans., p. 23).  Thereafter, Janet Koster examined the summons and denied she had ever seen the document before. (3/7/11 Trans., p. 30, 40).

            This Court concludes that the trial court did not err or abuse its discretion when it found that the return of service is regular on its face, that Mr. Koster failed to present clear and convincing evidence to impeach the sworn return of service by the process server, and when it denied the "Motion of Defendant, Lance Koster, to Set Aside Final Judgment of Foreclosure and to Rescind Judicial Sale and to Set Aside Entry of Default."  See Slomowitz, 429 So. 2d at 798-99.

            Affirmed.

            DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 16th day of December, 2011.

 

Original order entered on December 16, 2011, by Circuit Judges Linda R. Allan,

W. Douglas Baird, and John A. Schaefer.

 

Copies furnished to:

 

William Newt Hudson, Esq.

23 West Tarpon Ave.

Tarpon Springs, FL 34689

 

Astrid Guardado, Esq.

311 Park Place Blvd., Ste. 250

Clearwater, FL 33759

 

Horwitz Family Living Trust

William Horwitz

15406 Patterson Road

Odessa, FL 33556

 

Hon. John Carassas



[1]   The standard of review for an order granting a motion for relief from judgment is whether there has been a gross abuse of discretion by the trial court.  Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300, 302 (Fla. 2d DCA 2004).

 

[2]   Section 48.031(2)(a), in effect in 2009 states: "Substitute service may be made on the spouse of the person to be served at any place in the county, if the cause of action is not an adversary proceeding between the spouse and the person to be served, if the spouse requests such service, and if the spouse and person to be served are residing together in the same dwelling."