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Mattress One, Inc. v. Sunshop Properties, LLC

Florida Court of Appeals, Third District

November 20, 2019

Mattress One, Inc., Appellant,
v.
Sunshop Properties, LLC, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 18-31741, Jacqueline Hogan Scola, Judge.

          Navarro | McKown, and Luis F. Navarro and Tania M. Varela, for appellant.

          Lerman & Whitebook, P.A., and Carlos D. Lerman, (Hollywood), for appellee.

          Before SCALES, HENDON, and LOBREE, JJ.

          HENDON, J.

         Mattress One, Inc. appeals from the trial court's February 2019 order denying its motion to set aside the entry of default judgments, to quash service of process and vacate the writ of garnishment. We reverse.

         Pursuant to an action against Mattress One for breach of a commercial lease and non-residential eviction, Sunshop Properties, LLC ("Sunshop") served the summons and complaint at Mattress One's designated principal place of business, which was also the address designated for its registered agent for service of process. The record shows that the process server went to Mattress One's place of business at 10:59 a.m., where the agent for service of process was required by statute to be between 10 a.m. and 12 noon each day. § 48.091, Fla. Stat. (2018).[1] The agent for service of process was not present when the process server arrived. The return of service indicates that the process server gave the summons and complaint to an unknown employee of Mattress One, described only as "Drew Doe (refused to provide full name)."

         When Mattress One failed to respond to the summons and complaint, the trial court subsequently entered default final judgments against it as to both the breach of lease and eviction counts. Mattress One became aware of the defaults when its funds were seized pursuant to Sunshop's writ of garnishment. Mattress One immediately filed an emergency motion to set aside the default judgments and to quash the writ of garnishment. After a hearing, the trial court denied the motion, concluding that the return of service was legally sufficient on its face.

         Our standard of review of a trial court's ruling on a motion to quash is de novo. Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So.3d 695, 698 (Fla. 4th DCA 2010). Florida law requires strict compliance with all the statutory requirements for service of process. York Commc'ns, Inc. v. Furst Grp., Inc., 724 So.2d 678 (Fla. 4th DCA 1999); §§ 48.21, 48.081, 48.091, Fla. Stats. (2018). Section 48.081(1) directs that process is to be served on specified officers of the corporation or, in their absence, on any director or, in their absence, on any officer or business agent. Id. To bind a corporation for jurisdictional purposes, a return of service must show the absence of all officers of a superior class designated in the statute before service can be obtained by serving an officer or agent of an inferior class. See Space Coast Credit Union v. The First, F.A., 467 So.2d 737, 739 (Fla. 5th DCA 1985). If this requirement is not met, a court's jurisdiction is not perfected, and any judgment entered is void. Id. at 740. As an alternative to any of these, service may be perfected on the registered agent designated by the corporation to accept service of process. See § 48.081(3), Fla. Stat. (2018). The object of section 48.081 is to have service made upon someone who is held responsible by the corporation, "and it contemplates that service shall be made, whenever possible, upon the more responsible officers before resorting to service upon one of the inferior officers or agents of the corporation." Morgan Stanley Smith Barney, LLC v. Gibraltar Private Bank & Tr. Co., 162 So.3d 1058, 1060 (Fla. 3d DCA 2015) (quoting Bank of America, N.A. v. Bornstein, 39 So.3d 500 (Fla. 4th DCA 2010)). Here, service of process was not perfected on Mattress One through its officers pursuant to section 48.081(1) because the return of service does not show the absence of all officers of a superior class before resorting to service on an officer or agent of an inferior class. Further, the return of service fails to contain any statement supporting alternative service on the registered agent pursuant to section 48.081(3). Finally, although the registered agent was not present on the corporate premises when he or she was required to be under section 48.091, the return of service does not indicate that service of process was proper based on the absence of the registered agent. Instead, the attempted service was made on an unidentified, random employee. See, e.g., Nationsbanc Mortg. Corp. v. Gardens N. Condo. Ass'n, 764 So.2d 883 (Fla. 4th DCA 2000) (holding service on random employee of corporation was facially void because the affidavit did not contain any statement supporting the necessity for the substitute service); Saridis v. Vista St. Lucie Ass'n, Inc., 804 So.2d 372, 373 (Fla. 4th DCA 2001) (affirming quashal of service of process on corporation where the affidavit filed by the process server noted that service was effected on a corporate employee, referred to "F.S. 48.081(3)" but said nothing more).

         We therefore reverse the order finding service was legally sufficient on its face, and remand with directions to quash the October 3, 2018, service of process as void, to set aside the default final judgment of eviction, to set aside the default final judgment for breach of lease, quash the writ of garnishment, and for further proceedings consistent with this opinion.

         Reversed and remanded with instructions.

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