RCM Roofing Contractors, Inc. v. Maryland Casualty Co.

24 Fla. Supp. 2d 179

• Court: Circuit Court for the Judicial Circuits of Florida
• Decided: August 13, 1987
• Docket: Case No. 86-339 AP (County Court Case No. 86-12046CC05)
• Status: Published

Opinion

OPINION OF THE COURT

PER CURIAM.

In this case, the lower Court denied the defendant’s post default final judgment motions to quash service and to set aside judgment. The Court in its Order stated:

“THIS CAUSE came on to be heard before the Court on October 7, 1986, on Defendant’s Motion to Set Aside Final Judgment and to Quash Service of Process. At that time the Court considered Defendant’s Affidavit in Support of Motion to set Aside Final Judgment and to Quash Process. Defendant proffered the testimony of principal officer of Defendant corporation, CARMEN MORALES, that she was never served with any process in this cause. The Plaintiff did not offer any evidence other than the sworn return of Plaintiff’s process server, already filed with the Court. Defendant, ore tenus, moved the Court for an extension of time in which to take the deposition of Plaintiff’s process server due to the fact that Plaintiff’s process server was unable to appear for deposition prior to the hearing because he claimed he had health problems.”

We find that the lower Court should have granted an evidentiary hearing to determine whether there had, in fact, been service. The sworn denial and the sworn return created a sufficient basis to require a hearing, (See Abrams v. Paul, 453 So.2d 826, Fla. App. 1st Dist. 1983).

Accordingly, the Judgment below is reversed with directions to conduct an evidentiary hearing to determine whether the service of process should be quashed and the default set aside.

REVERSED AND REMANDED WITH DIRECTIONS.