Koster v. Sullivan
103 So. 3d 882
| Fla. Dist. Ct. App. | 2012Background
- Koster challenged a trial court order denying his motion to set aside default, set aside partial final default judgment, and quash service of process.
- The return of service was found regular on its face, creating a presumption of valid service.
- Service was attempted on Koster at his residence on November 7, 2009, with the documents left with his sister-in-law who was present.
- Koster did not answer or respond; a clerk's default was entered and he failed to appear at the final default judgment hearing.
- The trial court held an evidentiary hearing, concluded the return was facially valid, and denied the motion; the court rejected Koster’s challenge to service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the return of service regular on its face under 48.21? | Koster argues the return is facially defective. | Sullivan argues the return is facially regular. | Yes; the return is regular on its face. |
| Must 48.21 require listing every 48.031(l)(a) factor to be facially regular? | Koster contends strict construction requires detailing all factors. | Sullivan contends 48.21 suffices without listing all factors. | Not required; facial regularity satisfied without explicit listing of all factors. |
| Did Koster prove by clear and convincing evidence that service was defective? | Koster bears burden to rebut presumption of proper service. | Sullivan bears burden to prove regularity; Koster failed to meet it. | No; the evidence was inconclusive and failed to overcome the presumption. |
| Was the trial court correct to deny the motion and certify the public-importance question? | N/A in summary; focus on service validity. | N/A in summary; focus on service validity. | Yes; denial affirmed and conflict certified on the listed question. |
Key Cases Cited
- Re-Employment Services, Ltd. v. National Loan Acquisitions Co., 969 So.2d 467 (Fla. 5th DCA 2007) (burden shifts if return on its face; regularity governs presumption of service)
- Robles-Martinez v. Diaz, Reus, & Targ, LLP, 88 So.3d 177 (Fla. 3d DCA 2011) (strict construction of substitute-service provisions; facial regularity context)
- Walton v. Walton, 181 So.2d 715 (Fla. 2d DCA 1966) (strict construction of service statutes for jurisdictional effect)
- Gonzalez v. Totalbank, 472 So.2d 861 (Fla. 3d DCA 1985) (absence of certain details can render a return defective under 48.21)
- Herskowitz v. Schwarz & Schiffrin, 411 So.2d 1359 (Fla. 3d DCA 1982) (returns failing to identify served person can be defective under 48.21)
- Carone v. Millennium Settlements, Inc., 84 So.3d 1141 (Fla. 4th DCA 2012) (regular on its face where statutory requirements are identified as applicable)