final until disposition of timely filed motion for rehearing.
of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Cymonie Rowe, Judge;
L.T. Case No. 502014CA005034.
C. Buschel of Buschel Gibbons, P.A., Fort Lauderdale, and
Grant J. Smith of Strategysmith, P.A., Fort Lauderdale, for
appearance for appellees.
defendant appeals from the circuit court's order denying
his Florida Rule of Civil Procedure 1.540 motion to vacate
the final default judgment entered against him. The
defendant's motion primarily argued that the final
default judgment was void because the plaintiff's service
on the defendant through the Florida Secretary of State under
section 48.181(1), Florida Statutes (2014), was insufficient.
We agree with the defendant's argument and reverse.
plaintiff's complaint alleged, in pertinent part, as
follows. The defendant is a Michigan resident who is the
majority owner, managing member, and president of a Michigan
corporation which provides health care services. The
defendant's corporation entered into several agreements
with two financing companies. Under the agreements, in
exchange for an immediate advance of funds from the financing
companies to the defendant's corporation, the
defendant's corporation would repay the financing
companies using its account receivables collected over time.
The face of the agreements bear no relation to Florida.
financing companies later entered into agreements with the
plaintiff whereby the financing companies assigned to the
plaintiff the right to be paid from the account receivables
of the defendant's corporation. The assignment agreements
directed that payments were to be made to the plaintiff in
Florida. However, the defendant's corporation was not a
party to those assignment agreements.
the defendant's corporation allegedly failed to pay its
account receivables to the plaintiff, the plaintiff filed
suit in Florida against the defendant and the defendant's
corporation. The complaint alleged counts for breach of
contract, unjust enrichment, conversion, and breach of the
duty of good faith and fair dealing. The complaint alleged
that the defendant was a Michigan resident "doing
business in Florida." However, the complaint did not
contain any specific facts indicating how the defendant
allegedly was "doing business in Florida."
plaintiff was able to obtain service on the defendant's
corporation. However, the plaintiff was unable to obtain
service on the defendant in Michigan after several attempts.
The plaintiff's Michigan process servers filed affidavits
opining that the defendant was avoiding service.
plaintiff obtained from the clerk of court an alias summons
directing that service upon the defendant be made upon the
Florida Secretary of State pursuant to section 48.181(1),
Florida Statutes (2014), which provides, in pertinent part:
The acceptance by any person or persons . . . who are
residents of any other state . . . and any person who is a
resident of the state and who subsequently becomes a
nonresident of the state or conceals his or her whereabouts,
of the privilege extended by law to nonresidents and others
to operate, conduct, engage in, or carry on a business or
business venture in the state, or to have an office or agency
in the state, constitutes an appointment by the persons and
foreign corporations of the Secretary of State of the state
as their agent on whom all process in any action or
proceeding against them, or any of them, arising out of any
transaction or operation connected with or incidental to the
business or business venture may be served. The acceptance of
the privilege is signification of the agreement of the
persons . . . that the process against them which is so
served is of the same validity as if served personally on the
persons . . . .
the plaintiff served the alias summons upon the Florida
Secretary of State, the plaintiff obtained a clerk's
default against the defendant. The plaintiff then obtained a
final default judgment against the defendant.
defendant later learned of the final default judgment and
filed a motion to vacate the judgment pursuant to Florida
Rule of Civil Procedure 1.540(b) ("On motion and upon
such terms as are just, the court may relieve a party . . .
from a final judgment . . . for the following reasons: . . .
(4) that the judgment ...