Moschetta v. Atlantic National Bank of Broward

540 So. 2d 166, 1989 WL 22521

Opinion

540 So.2d 166 (1989)

Matthew J. MOSCHETTA, D/B/a Calamity Jane's Gun Shop, Appellant,
v.
ATLANTIC NATIONAL BANK OF BROWARD, Appellee.

No. 87-3357.

District Court of Appeal of Florida, Fourth District.

March 15, 1989.

Paul D. Novack of Rosen & Switkes, Miami Beach, for appellant.

Eric J. Braunstein of Goodman & Webber, P.A., Hollywood, for appellee.

PER CURIAM.

This is an appeal from an order denying appellant's motion to set aside a final judgment on the grounds that the trial court never acquired personal jurisdiction over the appellant. At issue below was whether the appellant resided at the address where a summons was served upon his daughter. In essence, if appellant could prove he did not reside at that address then no jurisdiction was acquired and the subsequent judgment was void. Cf. Gamboa v. Jones, 455 So.2d 613 (Fla. 3d DCA 1984). However, the trial court denied appellant's motion apparently relying on the fact that appellant later received actual notice of the lawsuit. We believe the trial court failed to apply the correct legal test, that of the appellant's residency at the time of service of process. Accordingly, we reverse and remand with directions that the trial court reconsider the appellant's motion and resolve the issue set out above. The trial court may, at its discretion, resolve the issue on the present record, or direct further proceedings.

HERSEY, C.J., and DOWNEY and ANSTEAD, JJ., concur.