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Twin Oaks Villas, Ltd. v. Joel D. Smith, L.L.C.

Florida Court of Appeal, First District

December 2, 2011

JOEL D. SMITH, L.L.C., and Con Cor Construction, Inc., Appellees.

Rehearing Denied Jan. 20, 2012.

Page 68

Michael G. Meyer and George W. Tate, III, of Broad and Cassel, Orlando; Ginger Barry Boyd of Broad and Cassel, Destin, for Appellant.

Larry D. Kellar, Pensacola; Charles F. Beall, Jr., of Moore, Hill & Westmoreland, Pensacola, for Appellees.


Twin Oaks Villas, Ltd., appeals a nonfinal order denying its motion to set aside a default final judgment on the ground that Joel D. Smith, L.L.C. failed to effect service of process, rendering the final judgment void under Florida Rule of Civil Procedure 1.540(b). We reverse, having concluded that the subcontractor's single attempt to personally serve Twin Oaks at its Cocoa Beach address did not amount to reasonable diligence under the circumstances. See Hudson v. Pioneer Fed. Savs. & Loan Ass'n, 516 So.2d 339, 340 (Fla. 1st DCA 1987) (on review of a circuit court's determination that a plaintiff conducted a diligent search to locate the defendant, the appellate court determines whether the decision is supported by competent, substantial evidence). Accord

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Giron v. Ugly Mortgage, Inc., 935 So.2d 580, 582 (Fla. 3d DCA 2006).

Twin Oaks Villas, Ltd. contracted with Con Cor Construction, Inc. in 2005 to build an apartment complex, and Con Cor hired subcontractor Joel D. Smith, L.L.C. to render labor, materials, and services. After the subcontractor ceased working on the project, it sought unsuccessfully to recover $48,078 for work performed, then recorded a claim of lien listing a Cocoa Beach address for Twin Oaks. Twin Oaks, in turn, sued the subcontractor to release the defective lien, but the trial court dismissed Twin Oaks' suit.

The subcontractor subsequently filed suit against Twin Oaks to foreclose on the claim of lien and attempted to serve Twin Oaks at the same Cocoa Beach address. The Sheriff's Return of Service dated February 22, 2006, stated that " after diligent search and inquiry," the registered agent— Jacqueline McPhillips— could not be found, and included the comment, " vacant bldg." The subcontractor then served an alias summons on the Secretary of State, asserting in a letter that, pursuant to section 48.061, Florida Statutes, " [w]e previously attempted service on the Registered Agent listed and it is now a vacant building and we are unable to serve them at that address. We were also unable to locate or serve any general or limited partner for this partnership." The circuit court entered a default final judgment foreclosing the construction lien.

When it received a copy of the final judgment in the mail, Twin Oaks filed a motion to vacate the clerk's default and set aside the final judgment. Twin Oaks filed an affidavit of Jim Kincaid, vice president and sole shareholder of Heritage Partners Group, Inc., general partner of Twin Oaks Villas, Ltd. He averred that Heritage Group's main offices had moved from the Cocoa Beach address to Cape Canaveral during late 2004 and early 2005, but that it had failed to change the address of its (and Twin Oaks') registered agent from Cocoa Beach to Cape Canaveral until March 2008. Neither Heritage, Twin Oaks, nor Mr. Kincaid had been served with the subcontractor's complaint or summons, nor were copies posted at either the Cocoa Beach or Cape Canaveral addresses, nor were copies received by certified mail at either address, nor did they receive notice of the subcontractor's motion for clerk's default or the motion for final judgment. The defendants first gained knowledge of this suit when they received a letter from plaintiff's attorney at the Cape Canaveral address, enclosing a copy of the final judgment. The offices and building in Cocoa Beach were not vacant, he said, and mail was collected daily from that address. Moreover, Joel Smith had personally travelled to the Heritage Group main office in Cape Canaveral to discuss what he believed he was owed on the Twin Oaks project.

The subcontractor filed an affidavit of Joel Smith in opposition, averring that the annual reports on file with the Secretary of State since 2005 listed the address of Twin Oaks, Heritage Partners, and Con Cor in Cocoa Beach, with Jacqueline McPhillips as registered agent for service of process. The subcontractor further averred that before the instant suit was filed, he had mailed the claim of lien to Mr. Kincaid at the Cocoa Beach address by certified mail and a return receipt showed that Mr. Kincaid had received it. The subcontractor also said he had told the manager of the apartments in Pensacola that he had sued Twin Oaks and Con Cor in February 2007 to enforce his lien. He thus believed James Kincaid was fully aware of the lawsuit against him.

The circuit court conducted a non-evidentiary motion hearing and decided the

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issue based upon the parties' affidavits and the sheriff's return of service. The court found that the service attempted to be effected on Twin Oaks' registered agent was valid and there was no deficiency, that the Secretary of State had complied with the law in serving the alias summons, and that Twin Oaks did not exercise due diligence and thus failed to show ...

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