Arlene Preudhomme v. Christopher Matthews and Garth Bailey

District Court of Appeal of Florida

Arlene Preudhomme v. Christopher Matthews and Garth Bailey

194 So. 3d 1057, 2016 Fla. App. LEXIS 9265, 2016 WL 3268441

CourtDistrict Court of Appeal of Florida

DecidedJune 15, 2016

Docket4D15-3640

StatusPublished

Cited by1 cases

This text of 194 So. 3d 1057 (Arlene Preudhomme v. Christopher Matthews and Garth Bailey) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Arlene Preudhomme v. Christopher Matthews and Garth Bailey, 194 So. 3d 1057, 2016 Fla. App. LEXIS 9265, 2016 WL 3268441 (Fla. Ct. App. 2016).

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Opinion

PER CURIAM.

We reverse the order granting the motion to quash service of process.

A plaintiff seeking to “invoke the court’s jurisdiction bears the burden of proving proper service,” which requires a showing that the return of service is “facially valid or regular on its face.” Koster v. Sullivan, 160 So.3d 385, 389 (Fla.2015). “If the return is regular on its face, then the service of process is presumed to be valid and the party challenging service has the burden of overcoming that presump *1058 tion by clear and convincing evidence.” Id. (quoting Re-Emp’t Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 471 (Fla. 5th DCA 2007)); see also Bank of Am., N.A. v. Bornstein, 39 So.3d 500, 503 (Fla. 4th DCA 2010). Thus,

a defendant cannot impeach a summons by simply denying service, but must present “clear and convincing evidence” to corroborate his denial of service. Slomowitz v. Walker, 429 So.2d 797, 799 (Fla. 4th DCA 1983). Clear and convincing evidence requires that the witnesses to a fact be credible; the facts testified to must be distinctly remembered; the details must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts in issue.

Lazo v. Bill Swad Leasing Co., 548 So.2d 1194, 1195 (Fla. 4th DCA 1989); see also Bornstein, 39 So.3d at 503 (stating “clear and convincing evidence” standard for overcoming presumption of valid service).

Here, appellant met her initial burden of establishing the validity of service, as the return of service was regular on its face. The burden thus shifted to appellee to demonstrate that the place of service was not his usual place of abode. Appellee presented no documentation or live testimony at the hearing on the motion to quash, only his affidavit, which fell short of the “clear and convincing evidence” standard. See Johnson v. Christiana Tr., 166 So.3d 940, 943-44 (Fla. 4th DCA 2015).

Reversed and remanded.

GROSS, CONNER and FORST, JJ., concur.

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PER CURIAM.

We reverse the order granting the motion to quash service of process.

A plaintiff seeking to “invoke the court’s jurisdiction bears the burden of proving proper service,” which requires a showing that the return of service is “facially valid or regular on its face.” Koster v. Sullivan, 160 So.3d 385, 389 (Fla.2015). “If the return is regular on its face, then the service of process is presumed to be valid and the party challenging service has the burden of overcoming that presump *1058 tion by clear and convincing evidence.” Id. (quoting Re-Emp’t Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 471 (Fla. 5th DCA 2007)); see also Bank of Am., N.A. v. Bornstein, 39 So.3d 500, 503 (Fla. 4th DCA 2010). Thus,

a defendant cannot impeach a summons by simply denying service, but must present “clear and convincing evidence” to corroborate his denial of service. Slomowitz v. Walker, 429 So.2d 797, 799 (Fla. 4th DCA 1983). Clear and convincing evidence requires that the witnesses to a fact be credible; the facts testified to must be distinctly remembered; the details must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts in issue.

Lazo v. Bill Swad Leasing Co., 548 So.2d 1194, 1195 (Fla. 4th DCA 1989); see also Bornstein, 39 So.3d at 503 (stating “clear and convincing evidence” standard for overcoming presumption of valid service).

Here, appellant met her initial burden of establishing the validity of service, as the return of service was regular on its face. The burden thus shifted to appellee to demonstrate that the place of service was not his usual place of abode. Appellee presented no documentation or live testimony at the hearing on the motion to quash, only his affidavit, which fell short of the “clear and convincing evidence” standard. See Johnson v. Christiana Tr., 166 So.3d 940, 943-44 (Fla. 4th DCA 2015).

Reversed and remanded.

GROSS, CONNER and FORST, JJ., concur.

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194 So. 3d 1057, 2016 Fla. App. LEXIS 9265, 2016 WL 3268441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arlene-preudhomme-v-christopher-matthews-and-garth-bailey-fladistctapp-2016.

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