Nirk v. Bank of America, N.A.
2012 Fla. App. LEXIS 13206
| Fla. Dist. Ct. App. | 2012Background
- Defendant appeals a non-final order denying amended motion to quash service of process.
- Question presented: whether process servers must place statutorily-required notations on the copy of the summons or on the copy of the complaint.
- Statutes at issue: §48.031(5) and §48.031(l)(a) (2010) interpreted together; later amendment noted but not deemed material here.
- Court concluded notations must be placed on the copy of the summons only, not on the copy of the complaint.
- Court clarified Vidal and Kwong to align with summons-only notation rule and applied it to the present service, affirming denial of the motion to quash.
- Merits: in this case, the server placed the required date/time and identification on the summons copy, satisfying §48.031(5). The circuit court’s denial of the amended motion to quash was correct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notations belong on the summons copy or the complaint. | Vidal/Kwong implied time notation on the complaint. | Notations required on the process copy, possibly the complaint. | Notations on the summons copy suffice. |
| How §48.031(l)(a) and §48.031(5) should be interpreted together. | Statutes should be read in pari materia with harmonizing intent. | Ambiguity exists in applying to summons vs. complaint. | In pari materia confirms summons-only notation rule. |
| Effect of Vidal and Kwong on current case after clarification. | Vidal/Kwong control prior practice. | Clarification narrows interpretation. | Vidal/Kwong clarified to refer to summons; Kwong aligned accordingly. |
| Whether service in this case satisfied §48.031(5). | Server placed date/time/ID/initials on summons copy. | Arguments of defect due to complaint copy. | Service satisfied; motion to quash properly denied. |
Key Cases Cited
- Vidal v. SunTrust Bank, 41 So.3d 401 (Fla. 4th DCA 2010) (noting time on copy of the complaint led to defect; later clarified)
- Kwong v. Countrywide Home Loans Servicing, L.P., 54 So.3d 1033 (Fla. 4th DCA 2011) (relying on Vidal; clarified process served terminology)
- Hill v. Davis, 70 So.3d 572 (Fla. 2011) (statutory interpretation using plain language)