PEACEFUL PAWS MEMORIAL SERVICES LLC v. KAREN TARVES

• Court: District Court of Appeal of Florida
• Decided: August 2, 2023
• Docket: 23-0348
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed August 2, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-348 Lower Tribunal No. 18-13147 CC ________________

Peaceful Paws Memorial Services LLC, Appellant,

vs.

Karen Tarves, et al., Appellees.

An Appeal from a non-final order from the County Court for Miami- Dade County, Michaelle Gonzalez-Paulson, Judge.

Ayala Law, P.A., and Eduardo A. Maura, for appellant.

The Levey Law Firm, P.A., and Lewis J. Levey, for appellees.

Before EMAS, HENDON, and BOKOR, JJ.

HENDON, J.

Peaceful Paws Memorial Services LLC (“Peaceful Paws”) appeals from the denial of its Emergency Motion to Quash Service of Process,

Vacate Clerk’s Default, Vacate Default Final Judgment, and Stay of

Execution. We reverse.

I. Facts and Procedural History

Karen Tarves, individually, and as the Trustee of The Karen Tarves

Revocable Trust (collectively, “Ms. Tarves”), obtained a final judgment

against Joseph Castranova III (“Castranova”) and Julian Mauricio Rivera

Moncaleano (“Moncaleano”) in the amount of $18,383.75. Thereafter, the

trial court entered a final judgment awarding attorney’s fees and costs in

favor of Ms. Tarves in the amount of $17,853.00.

Ms. Tarves filed a motion for post-judgment continuing writ of

garnishment to Peaceful Paws for Castranova’s and Moncaleano’s salary,

wages, and commissions. The trial court issued a post-judgment

continuing writ of garnishment to Peaceful Paws, requesting that the writ of

garnishment be served on Peaceful Paws’ registered agent, Paul A. Sack

(“Mr. Sack”), at 1130 Washington Avenue, 3rd Floor, Miami Beach, Florida

33139 (“Miami Beach address”). The writ of garnishment provided that

Peaceful Paws had twenty days to file an answer.

On April 22, 2021, Ms. Tarves filed the Return of Service, which

reflects that on April 1, 2021, the process server “served a CORPORATION

2 by serving Continuing Writ of Garnishment to Paul Butler Employee as an

employee of said Corporation or Registered Agent in the absence of any

superior officer as defined in Florida Statute, Section 48.081 when

defendant’s corporation fails to comply with F.S. 48.091.” On that same

day, Ms. Tarves filed a motion for default against Peaceful Paws for failure

to file an answer. The Clerk of Court entered a default against Peaceful

Paws. Thereafter, Ms. Tarves moved for a default final judgment against

Peaceful Paws. On May 27, 2021, without conducting an evidentiary

hearing, the trial court entered a default final judgment in favor of Ms.

Tarves and against Peaceful Paws (as garnishee) in the amount of

$17,853.00.

Starting in November 2021, in an attempt to execute on the final

judgment entered against Peaceful Paws, Ms. Tarves filed, among other

things, a notice of serving fact information sheet, a request for production of

documents, a notice of taking deposition in aid of execution, and a notice of

taking the deposition of Paul Butler (“Mr. Butler”). There was no response

from Peaceful Paws, Mr. Sack, or Mr. Butler.

On January 30, 2023, Ms. Tarves filed a writ of garnishment to Bank

of America, N.A., asserting that she has a judgment against Peaceful Paws

in the amount of $17,853.00. Thereafter, on February 8, 2023, Peaceful

3 Paws filed an Emergency Motion to Quash Service of Process, Vacate

Clerk’s Default, Vacate Default Final Judgment, and Stay Execution,

arguing, among other things, that it was not properly served under section

48.062(1), Florida Statutes, which applies to process of service on a limited

liability company. Mr. Sack asserted that he is no longer at the Miami

Beach address, and neither he nor anyone else at his office was served

with the continuing writ of garnishment, and his office has not been at the

Miami Beach address for years. Further, Mr. Butler has never been an

employee of Mr. Sack. Moreover, there is no evidence that the process

server attempted to serve Peaceful Paws at another address. Therefore,

the service was ineffective and, as a matter of law, the default and default

final judgment are void and must be vacated under Florida Rule of Civil

Procedure 1.540(b)(4). Mr. Sack further asserted that the writ of

garnishment asserts a claim for unliquidated damages and therefore the

trial court erroneously entered the default final judgment without notice of

trial on damages. Finally, Peaceful Paws moved to stay execution of the

default final judgment. In support of its emergency motion, Peaceful Paws

filed Mr. Sack’s declaration.

On February 15, 2023, Ms. Tarves filed her attorney’s (Lewis J.

Levey) declaration in opposition to Peaceful Paws’ emergency motion.

4 Levey asserted that Peaceful Paws is an active Florida corporation, whose

registered agent is Mr. Sack, who is located at the Miami Beach address.

When the process server served the continuing writ of garnishment, Mr.

Sack was not present and service was effectuated on Peaceful Paws’

employee/authorized member, Mr. Butler, who was authorized to accept

process. Further, although Mr. Sack claims that his office has not been

located at the Miami Beach address for years, on January 10, 2021, Mr.

Butler, as an authorized member, submitted Peaceful Paws’ Annual

Report, which was electronically signed by Mr. Sack and provides that Mr.

Sack is Peaceful Paws’ registered agent, and Mr. Sack’s address is at the

Miami Beach address. Moreover, on April 7, 2022, Mr. Butler, as “CFO,”

submitted Peaceful Paws’ Annual Report to the Secretary of State, which

was electronically signed and stated that Mr. Sack was Peaceful Paws’

registered agent and that his address is the Miami Beach address. Further,

numerous notices were mailed to Mr. Sack as Peaceful Paws’ registered

agent at the Miami Beach address, but no return mail was received.

Finally, Peaceful Paws’ motion to vacate was untimely because Peaceful

Paws waited almost two years to claim that someone pretending to be Mr.

Butler while at Mr. Sack’s office was served with the continuing writ of

garnishment.

5 Peaceful Paws filed a reply to Ms. Tarves’ opposition and to Levey’s

declaration, asserting that Attorney Levey misrepresented Peaceful Paws’

argument because Peaceful Paws did not claim in its Motion to Vacate that

“someone pretending to be Paul Butler in Paul A. Sack’s office was served

with the Court’s Continuing Writ of Garnishment.” Peaceful Paws further

argued

[E]ven if Sack’s office was located at the address in question (and it was not) and Mr. Butler accepted service (which he did not), Mr. Butler was not and has never been Sack’s employee, and therefore, was not authorized to accept service on Sack’s behalf. Consequently, [Ms. Tarves’] claim that she served Sack by serving Mr. Butler is a legal nullity.

Moreover, Peaceful Paws asserted that Ms. Tarves failed to address

Peaceful Paws’ argument that Peaceful Paws was entitled to an evidentiary

hearing on damages, and therefore, because the default final judgment

was entered without notice of trial on damages, it is void and must be set

aside.

Following a hearing on Peaceful Paws’ emergency motion to vacate,

etc., the trial court entered an order denying the motion. The trial court

noted that the return of service states that the writ of garnishment was

served “to Paul Butler Employee as an employee of said Corporation or

Registered Agent,” and Peaceful Paws had not filed an affidavit or

evidence claiming that Mr. Butler was not served with the writ of

6 garnishment. The order also sets forth the facts relating to the annual

reports that show that Mr. Butler is an “Authorized Member” of Peaceful

Paws. The trial court found that, as Peaceful Paws’ managing member,

Ms. Tarves’ service of the writ of garnishment upon Mr. Butler was proper.

Further, the trial court found that Peaceful Paws’ motion to vacate was not

filed within a reasonable time as required by rule 1.540(b), as the record

indicates that Peaceful Paws was aware of these proceedings from the

date the default final judgment was entered on May 27, 2021. The trial

court’s order did not address Peaceful Paws’ argument that it was entitled

to an evidentiary hearing on damages. Peaceful Paws’ appeal of the denial

of its emergency motion followed.

II. Standards of Review

“A trial court’s ruling on a motion to quash service of process, to the

extent it involves questions of law, is subject to de novo review.” Clear 2

Close Title, LLC v. Zap Cap., Inc., 48 Fla. L. Weekly D407, *3 (Fla. 3d DCA

Feb. 22, 2023) (citing Mecca Multimedia, Inc. v. Kurzbard, 954 So. 2d

1179, 1181 (Fla. 3d DCA 2007)). “Determining whether a judgment is void

poses a question of law that we review de novo.” Regions Bank v. Big

Bend Invs. Grp. of Fla., LLC, 311 So. 3d 181, 184 (Fla. 2d DCA 2020). “A

trial court's ruling on a rule 1.540(b) motion for relief from judgment is

7 usually reviewed on appeal for an abuse of discretion. However, a decision

whether or not to vacate a void judgment is not within the ambit of a trial

court's discretion; if a judgment previously entered is void, the trial court

must vacate the judgment.” Nationstar Mortg., LLC v. Diaz, 227 So. 3d

726, 729 (Fla. 3d DCA 2017) (internal citations, alterations, and quotation

marks omitted); see also Specialty Sols., Inc. v. Baxter Gypsum &

Concrete, LLC, 325 So. 3d 192, 196 (Fla. 5th DCA 2021) (“Whether a final

judgment is void presents a question of law that an appellate court reviews

de novo.”).

III. Analysis

Peaceful Paws argues that the trial court erred by denying the motion

to quash service of process as the attempted service on Peaceful Paws

was not effectuated in compliance with the applicable service of process

statute—section 48.062. We agree. Peaceful Paws further argues that

because the trial court lacked personal jurisdiction over Peaceful Paws, the

default final judgment entered against Peaceful Paws is void, and the trial

court erred by denying Peaceful Paws’ motion to vacate the default final

judgment. We agree.

“[V]alid service of process is necessary to vest jurisdiction in the trial

court,” and therefore, “the court lacks personal jurisdiction over [a party]

8 until service is perfected.” Tuscan River Est., LLC v. U.S. Bank Tr. Nat’l

Ass’n, 351 So. 3d 1233, 1236 (Fla. 1st DCA 2022). Further, a complaint

that was improperly served renders the default judgment void. See Kelly v.

HSBC Bank USA Nat’l Ass’n, 240 So. 3d 107, 108 (Fla. 3d DCA 2018); see

also Metro. Mortg. Co. of Miami v. Rose, 353 So. 3d 1230, 1233 (Fla. 3d

DCA 2022) (stating that a judgment is void when the judgment is entered

by a court that lacks personal jurisdiction over the party).

In the instant case, the return of service reflects that the process

server “served a CORPORATION by serving Continuing Writ of

Garnishment to Paul Butler Employee as an employee of said

Corporation or Registered Agent in the absence of any superior officer as

defined in Florida Statute, Section 48.081 when defendant’s corporation

fails to comply with F.S. 48.091.” (emphasis added). The Sunbiz printout

reflects that Peaceful Paws is a Florida limited liability company, and

therefore, service of process is governed by section 48.062, not section

48.081, as set forth in the service of process.

Section 48.062, Florida Statutes (2021), titled “Service on a limited

liability company,” 1 provides, in part, as follows:

(1) Process against a limited liability company, domestic or

1 At the time of service, this version of the statute was in effect. It was later amended effective January 2, 2023.

9 foreign, may be served on the registered agent designated by the limited liability company under chapter 605. A person attempting to serve process pursuant to this subsection may serve the process on any employee of the registered agent during the first attempt at service even if the registered agent is a natural person and is temporarily absent from his or her office. (2) If service cannot be made on a registered agent of the limited liability company because . . . its registered agent cannot with reasonable diligence be served, process against the limited liability company, domestic or foreign, may be served: (a) On a member of a member-managed limited liability company[.]

In the instant case, the Sunbiz printout reflects that Peaceful Paws’

registered agent is Mr. Sack, and that Mr. Butler is an authorized member.

Further, Peaceful Paws’ 2022 Annual Report, which was signed by Mr.

Butler as “CFO,” reflects that Mr. Sack is the registered agent and that Mr.

Butler is an authorized member. Moreover, Mr. Sack’s declaration states

that Mr. Butler has never been his employee.

Based on these facts, Peaceful Paws was not properly served with

process. First, pursuant to section 48.062, during the first attempt at

service, process can be served on the registered agent or an employee of

the registered agent. At best, the record reflects that Mr. Butler, as CFO

of Peaceful Paws, is an employee of Peaceful Paws itself, not an employee

of Peaceful Paws’ registered agent, Mr. Sack.

Second, if a registered agent cannot with reasonable diligence be

10 served, process can be served on a member of a member-managed limited

liability company, such as Mr. Butler. However, In the instant case, there is

no record evidence that the process server could not “with reasonable

diligence” serve the registered agent, Mr. Sack. The return of service does

not reflect that other attempts were made to serve Peaceful Paws’

registered agent, Mr. Sack, or that “with reasonable diligence,” Mr. Sack

could not be served. As such, under the circumstances of this case,

service of process on Mr. Butler, assuming he is an employee of Peaceful

Paws, does not comport with the service requirements on a limited liability

company as set forth in section 48.062. As Peaceful Paws was not

properly served, the default final judgment is void. See Metro. Mortg. Co.

of Miami, 353 So. 3d at 1233 (stating that a judgment is void when the

judgment is entered by a court that lacks personal jurisdiction over the

party). As such, the trial court erred by denying Peaceful Paws’ motion to

quash service of process.

Moreover, in denying the motion to vacate the default final judgment,

the trial court found that it was not filed within a reasonable time. However,

as the default final judgment is void based on lack of personal jurisdiction,

relief from the void judgment may be granted at any time without taking into

consideration whether it was filed within a reasonable time. See Metro.

11 Mortg. Co. of Miami, 353 So. 3d at 1232 (noting that Florida Rule of Civil

Procedure 1.540(b)(4) authorizes relief from a void judgment, and that the

rule expressly requires that a party file a motion for relief from a void

judgment “within a reasonable time”; explaining that, “while Rose

persuasively argues that Metropolitan Mortgage unreasonably delayed the

filing of the motion, we are constrained by our precedent to eschew

equitable factors and examine only whether the judgment is void”). As the

default final judgment is void, this court does not address whether Peaceful

Paws’ delay in filing the motion to vacate the default final judgment was

unreasonable. Therefore, under the facts of this case, the trial court erred

by denying Peaceful Paws’ motion to vacate the default final judgment.

Accordingly, we reverse the order under review.

Based on the resolution of these issues, we do not need to address

Peaceful Paws’ remaining arguments raised on appeal.

Reversed.