James P. Waczewski of Luks, Santaniello, Perez, Petrillo, Gold & Jones, Tallahassee and Jack D. Luks of Luks, Santaniello, Perez, Petrillo, Gold & Jones, Fort Lauderdale, for appellant.
Mara Shlackman of Law Offices of Mara Shlackman, P.L., Fort Lauderdale, for appellees.
MARX, KRISTA, Associate Judge.
The Mills Corporation, Inc. (" The Mills" ) challenges the trial court's denial of its motion to set aside default judgment and argues the judgment is void due to improper service. We agree and reverse. Our ruling on this issue renders moot all other issues raised in this appeal.
Maria and Frank Amato, based upon a trip and fall accident at the Broward Mall, filed this personal injury action. On the date of the incident in August, 2005, the Broward Mall was owned and operated by a company that was a subsidiary of The Mills.
On May 4, 2007, Simon Property Group, Inc. (" Simon Group" ) acquired The Mills and its subsidiaries, including the Broward Mall. On this same date, the CEO of The Mills was terminated from his position.
The Amatos filed their complaint on November 26, 2007 and attempted to effectuate service upon The Mills on January 5, 2008 by serving the former CEO at his home in Maryland. At that time, the former CEO no longer had any association with The Mills or Simon Group.
Records of the Florida Department of State, Division of Corporations, showed that on August 22, 2007, The Mills filed an " Application by Foreign Corporation for Withdrawal of Authority to Transact Business or Conduct Affairs in Florida." That document provided, in pertinent part:
This corporation is no longer transacting business or conducting affairs within the State of Florida and hereby voluntarily surrenders its authority to transact business or conduct affairs in Florida.
This corporation revokes the authority of its registered agent in Florida to accept service on its behalf and appoints the Department of State as its agent for service of process based on a cause of action arising during the time it was authorized to transact business or conduct affairs in Florida.
The following is a current mailing address for the corporation:
The principal address listed for The Mills was the same address as the corporate headquarters of Simon Group because at the time of the Amatos' attempted service, Simon Group was the parent corporation of the Broward Mall.
The Mills failed to answer the complaint and the clerk of court entered a default. On September 22, 2008, after a jury trial in which The Mills did not participate, the trial court entered a default final judgment for damages. The Mills filed a motion to set aside default judgment, arguing that the judgment was void due to improper service. The trial court denied the motion. This appeal followed.
The standard of review for an order denying a motion to vacate a default judgment, where the motion is premised on the alleged insufficiency of service of process, is abuse of discretion. BoatFloat, LLC v. Cent. Transp. Int'l, Inc.,941 So.2d 1271, 1272 (Fla. 4th DCA 2006). In evaluating whether a trial court abused its discretion, the appellate court often finds it determinative whether or not the trial court applied the law ...