Beneficial Florida, Inc. v. Washington
Beneficial Florida, Inc. v. Washington
Opinion of the Court
Beneficial Florida, Inc. appeals a non-final order quashing service of process on Ida Mae Washington.
Beneficial filed a mortgage foreclosure complaint against Ms. Washington (and A1 Washington, Jr.). A return of service was executed and filed with the trial court. According to the return of service, individual service of process was effected on Ms. Washington.
Several weeks later, Ms. Washington filed a motion to quash service of process and a motion to set aside the judgment, alleging that she was not properly served process, and, consequently, the judgment as to her interest in the property was void. The trial court issued an order, requiring Beneficial to file a written response to Ms. Washington’s motions. Beneficial did so, arguing that Ms. Washington’s allegations, without an affidavit, were insufficient to set aside the default or to quash service. Ms. Washington subsequently filed an affidavit in support of her motions. In her affidavit, she attested that on the date of service of Beneficial’s foreclosure complaint, she “was not at [the] residence at the alleged time of service” and that she only “first became aware of this action when [she] was served with a writ of possession at [her] residence.... ” Without conducting an evidentiary hearing on the motions, the trial court issued an order granting Ms. Washington’s motion to quash and ordered Beneficial to effectuate proper service on her. This appeal followed.
The return of service on Ms. Washington is regular on its face. A process server’s return of service on a defen
The trial court should have held an evi-dentiary hearing in order to insure adequate consideration of the disputed facts relevant to the motion to quash service of process. This is especially true in this case where Ms. Washington’s assertion that there was no service of process was disputed by the return of service. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla. 1989) (holding that where factual assertions in affidavits filed by the parties concerning the issue of personal jurisdiction could not be reconciled, the trial court was required “to hold a limited evidentiary hearing” to determine the issue); Koniver Stern Group v. Layfield, 811 So.2d 812 (Fla. 3d DCA 2002) (holding that assertion that there was no service of process and/or that wrong parties were served was disputed by verified returns of service, and, thus, evidentiary hearing on issue of motion to vacate default final judgments was required); S.E. Termite & Pest v. Ones, 792 So.2d 1266 (Fla. 4th DCA 2001) (reversing denial of motion to vacate clerk’s default for eviden-tiary hearing to determine whether appellant was personally served with process).
Accordingly, we reverse, and remand this matter for an evidentiary hearing on the issue of whether Ms. Washington was properly served process in the action.
REVERSED AND REMANDED.
. Because the trial court’s non-final order determines personal jurisdiction, it is subject to immediate review by appeal. Fla. R.App. P. 9.130(a)(3)(C)(i); Chapman v. Sheffield, 750 So.2d 140, 142 (Fla. 1st DCA 2000).
. A second return of service document states that substitute service was employed to effect service on the co-owner of the property, A1 Washington, Jr.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.