NOTICE:  THIS OPINION IS SUBJECT TO REVISION OR WITHDRAWAL

UNTIL TIME EXPIRES FOR REHEARING OR FURTHER APPELLATE

REVIEW AND, IF FILED, DETERMINED

County Civil Court: CIVIL PROCEDURE – Default – service of process – party must present clear and convincing evidence to impeach service of process – Defendant’s testimony that she never received the summons is insufficient to overcome valid return of service – Order affirmed.  Deal v. Citizens and Southern National Bank, Appeal No. 06-0048AP-88B ( Fla. 6th Cir. App. Ct. March 26, 2008). 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

NADINE DEAL,

                        Appellant,

vs.                                                                                     Appeal No. 06-0048AP-88B

                                         UCN522006AP000048XXXXCV

CITIZENS AND SOUTHERN NATIONAL

BANK OF FLORIDA,

                        Appellee.

____________________________________________/

Appeal from Pinellas County Court

Alan J. Kerben, Esquire

Attorney for Appellant

Andrew D. Fleisher, Esquire

Attorney for Appellee

ORDER AND OPINION

            THIS CAUSE came before the Court on appeal, filed by the Appellant, Nadine Deal (Deal), from the Order, entered July 14, 2006.  In its Order, the trial court set aside its previous ruling, Order on Motion to Set Aside Final Judgment, wherein the trial court had set aside the Final Judgment of Default entered in favor of the Appellee, Citizens & Southern National Bank of Florida (Citizens).  The trial court found that there was a lack of clear and convincing evidence to impeach the validity of the return of service.  Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling. 

The record shows that, in 1990, Citizens sued Deal to recover on losses sustained as a result of Deal’s default on a loan to purchase a 1986 Toyota.  Deal did not respond to the complaint resulting in the entry, on May 7, 1990, of the Final Judgment of Default awarding Citizens a judgment of $ 4,001.41.  In July 2005, Citizens began garnishment and related discovery proceedings.  On December 23, 2005, Deal made her first appearance in the case by filing a Claim of Exemption and Request for Hearing.  On March 21, 2006, Deal filed a Motion to Set Aside Final Judgment, arguing that the Final Judgment was void as Deal was not properly served.  On May 26, 2006, the trial court entered its Order on Motion to Set Aside Final Judgment wherein the trial court found that Deal had never received the summons, complaint or any other pleading.[1]  The trial court found that Deal had been served at 6901 – 22nd Ave. N., St. Petersburg, the location of Tyrone Square Mall, where Deal worked part-time at Maison Blanch and other stores.  The process server was unable to identify which store he served Deal and Deal testified that she was not served. 

Citizens then filed a Motion to Rehear Defendant’s Motion to Vacate Judgment.[2]  The transcript from this hearing, held on June 29, 2006, shows that Citizens argued to the trial court that the Order on Motion to Set Aside Final Judgment was unlawful as the trial court applied the wrong legal standard.  The trial court agreed with Citizens and entered its Order finding that it had inherent authority to correct an improper or unlawful decision and that the Deal’s return of service, dated February 6, 1990, was valid on its face.  The trial court went on to find that Deal failed to present corroborating evidence that she was not served and that Deal’s “uncorroborated denial of service does not constitute clear and convincing evidence sufficient to impeach the presumed validity of regular return of service.”  Deal timely sought review of this Order.[3]

            This Court must decide whether the trial court erred in setting aside its Order on Motion to Set Aside Final Judgment based on a lack of corroborating evidence that Deal was not served.[4]  The Court finds that the effect of the trial court’s ruling was to deny Deal’s motion to vacate the Final Judgment of Default.  The 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. 

The record contains the affidavit of John O. Heisler, a certified process server, stating that he personally served Nadine Deal, on February 5, 1990, with the summons and complaint, at 1:35 p.m., at 6901 – 22nd Avenue North, St. Petersburg, (P.O.E.).  This return of service is valid on its face.  See Fla. Stat. 48.21.  The transcript of the hearing on June 29, 2006, shows that Mr. Heisler had previously testified, at the hearing on Deal’s Motion to Set Aside Final Judgment, that he could not remember any of the details of that particular service, which happened 16 years earlier.  Deal testified that she never received the summons.  The trial court relied on this testimony in setting aside the default final judgment.  In reversing its ruling, the trial court agreed with Citizens that the testimony and evidence did not establish clear and convincing evidence to impeach the service of process.

            As held in Slomowitz v. E.O. Walker, 429 So.2d 797 (Fla. 4th DCA 1983), a defendant may not impeach a summons by simply denying service, but must present clear and convincing evidence to corroborate denial of service.  See id. at 799; see also Latin American Cafeteria, Inc. v. Zales Meats Distributors, Inc., 921 So.2d 768, 770 (Fla. 3d DCA 2006); Department of Revenue v. Wright, 813 So.2d 989, 992 (Fla. 2d DCA 2002); Lazo v. Bill Swad Leasing Co., 548 So.2d 1194, 1195 (Fla. 4th DCA 1989).  Under the facts of this case, the Court finds that the trial court did not abuse its discretion in entering the Order setting aside its Order on Motion to Set Aside Final Judgment.

Therefore, it is,

            ORDERED AND ADJUDGED that the Order is affirmed. 

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ______ of March 2008.

                                                                                ______________________________

                                                                                AMY M. WILLIAMS

                                                            Circuit Judge, Appellate Division

_______________________                                      _____________________________

PETER RAMSBERGER                                        J. THOMAS McGRADY

Circuit Judge, Appellate Division                               Circuit Judge, Appellate Division

Copies furnished to:

Judge Henry J. Andringa

Alan J. Kerben, Esquire

3959 Van Dyke Road, P.M.B. 255

Lutz, FL 33558

Andrew D. Fleisher, Esquire

55 Weston Road, Suite 300

Ft. Lauderdale, FL 33326