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Fla. L. Weekly D2413aTop of Form

Jurisdiction
— Service of process — Substitute — Trial court erred in denying motion to
quash service of process where amended affidavit of substitute service did not
provide name of person upon whom service was made, as required by statute —
Objection to personal jurisdiction not waived by filing motion to dismiss and
motion for protective order after trial court entered written order denying
motion to quash and ordering defendant to answer complaint and respond to
outstanding discovery

LAURA MURPHY, Appellant, v. CACH,
LLC, MICHAEL MURPHY AND ERROL EQUESTRIAN CENTER, INC., Appellees. 5th District.
Case No. 5D17-2384. Opinion filed November 9, 2017. Non-Final Appeal from the
Circuit Court for Orange County, John E. Jordan, Judge. Counsel: Gary S.
Israel, Orlando, for Appellant. Bryan Manno, Ashley L. Moore, and Tina D.
Gayle, of Federated Law Group, PLLC, Juno Beach, for Appellee, Cach, LLC. No
Appearance for other Appellees.

(LAMBERT, J.) Appellant, Laura
Murphy, appeals the order denying her motion to quash service of process.
Appellant asserts that the trial court never acquired personal jurisdiction
over her because the amended affidavit of substitute service did not strictly
comply with section 48.21, Florida Statutes (2015), as it does not provide the
name of the person upon whom service was made. We agree and, as explained
below, reverse and remand for further proceedings.

Appellant was sued for damages by
Appellee, Cach, LLC, for breach of a personal guaranty on a debt owed by a
codefendant. The amended affidavit of service filed in this case states that
substitute service of process was obtained upon Appellant when a copy of the
summons and a copy of the complaint with exhibits was personally left with
“John Doe,” who was described in the affidavit of service as a “black-haired
white male” and Appellant’s “co-resident.” The affidavit also relates that service
was obtained at Appellant’s usual place of abode in Apopka, Florida. Appellant
timely moved to quash service of process and, following a hearing at which no
evidence was received, the trial court entered the unelaborated order now on
appeal.

Where, as here, the trial court’s
ruling on a motion to quash service of process is based on issues of law, our
review on appeal is de novo. Davidian v. JP Morgan Chase Bank, 178 So.
3d 45, 47 (Fla. 4th DCA 2015) (citing Robles-Martinez v. Diaz, Reus &
Targ, LLP, 88 So. 3d 177, 179 (Fla. 3d DCA 2011)). Further, “[s]tatutes
governing service of process must be strictly construed and enforced.” Koster
v. Sullivan, 160 So. 3d 385, 388 (Fla. 2015) (citing Shurman v. Atl.
Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001)).

Appellee, as the party seeking to
invoke the jurisdiction of the court over a party, bears the burden of proving
proper service. Id. at 389. To that end, “[t]he return of service is the
instrument a court relies on to determine whether jurisdiction over an
individual has been established.” Id. at 388 (citing Klosenski v.
Flaherty, 116 So. 2d 767, 768-69 (Fla. 1959) (holding that an officer’s
return of service “is merely evidence to enable the trial judge to conclude
that the court has acquired jurisdiction of the person of the defendant, or has
not done so, as the case may be”)). Thus, “[i]f . . . the return is defective
on its face, [then] it ‘cannot be relied upon as evidence that the court
acquired jurisdiction over the person of the defendant.’ ” Klosenski,
116 So. 2d at 769 (quoting Gibbens v. Pickett, 12 So. 17, 18 (Fla.
1893)).

The dispositive question in the
present case is whether the amended affidavit of service of process is regular
or valid on its face. Section 48.21 governs the return of execution of process.
This statute provides in pertinent part:

(1) Each
person who effects service of process shall note on a return-of-service form
attached thereto, the date and time when it comes to hand, the date and time
when it is served, the manner of service, the name of the person on whom it was
served and, if the person is served in a representative capacity, the position
occupied by the person. The return-of-service form must be signed by the person
who effects the service of process. . . .

(2) A failure
to state the facts or to include the signature required by subsection (1)
invalidates the service, but the return is amendable to state the facts or to
include the signature at any time on application to the court from which the
process issued. On amendment, service is as effective as if the return had
originally stated the omitted facts or included the signature. . . .

§ 48.21, Fla. Stat. (2015).
Therefore, for a return of service of process to be facially valid, it must
include the following four facts: (1) the date and time the pleading is
received by the process server; (2) the date and time that process is served;
(3) the manner of service, and (4) the name of the person served and, if served
in a representative capacity, the position occupied by the person. Koster,
160 So. 3d at 389 (citing Re-Emp’t Servs., Ltd. v. Nat’l Loan Acquisitions
Co., 969 So. 2d 467, 472 (Fla. 5th DCA 2007)).

Here, the amended affidavit of
service of process is facially deficient under section 48.21 because it does
not contain the name of the person served. Providing a physical description of
“John Doe” in lieu of providing the individual’s name is insufficient
compliance with section 48.21. Vives v. Wells Fargo Bank, N.A., 128 So.
3d 9, 15 (Fla. 3d DCA 2012); see also Gonzalez v. Totalbank, 472 So. 2d
861, 864 (Fla. 3d DCA 1985) (holding that return of service indicating that a
Jane Doe was served was defective under section 48.21 and the service was
invalid). Consequently, Appellee never met its initial burden of establishing
proper service of process, personal jurisdiction over Appellant has not been
shown, and the trial court erred in denying Appellant’s motion to quash.

Finally, we reject Appellee’s
argument that Appellant waived her objection to personal jurisdiction based
upon her filing a motion to dismiss and a contemporaneously filed motion for
protective order. Appellant filed these motions after the trial court entered
its written order denying Appellant’s motion to quash and ordered her to answer
Appellee’s complaint and to respond to the outstanding discovery. A defendant
who asserts a timely challenge to personal jurisdiction may defend the matter
on the merits without waiving his or her personal jurisdiction objection, as
long as the defendant does not seek affirmative relief. Berne v. Beznos,
819 So. 2d 235, 237-38 (Fla. 3d DCA 2002). Here, Appellant timely challenged
jurisdiction and did not seek affirmative relief.

Accordingly, we reverse the trial
court’s order denying Appellant’s motion to quash and remand for further
proceedings.

REVERSED and REMANDED. (SAWAYA and
EVANDER, JJ., concur.)