May 15, 2018

Bresky Law Successfully Defends Judgment in Favor of Injured Plaintiff from Challenge Alleging Improper Service of Process

May 10, 2018*

Our firm recently obtained affirmance of a final judgment rendered in favor of our client, a plaintiff who was injured after tripping and falling over uneven and misaligned concrete located on the defendant’s property.

The plaintiff’s process server served the defendant with the lawsuit by personal service on the defendant’s registered agent at the registered agent’s residence after being unable to locate him at the defendant’s official address listed with the Division of Corporations. The plaintiff thereafter served all of its court documents, including a Motion for Default, Notice for Jury Trial, and Amended Motion for Entry of Final Default, by mail sent to the defendant’s official address. The clerk of court entered a final default as to liability, which also indicated service on the defendant’s registered agent at the defendant’s official address.

The case was later tried to a jury on the issue of damages. The jury returned a substantial verdict in favor of the plaintiff. The defendant thereafter appeared in the case through an attorney and moved to set aside the default, reopen the evidence, and continue the trial based on excusable neglect regarding the service of process. The defendant attached the registered agent’s affidavit stating that he did not recall being personally served at his residence. The registered agent stated further that he never received the documents served by mail due to reasons that included instability in his personal life, the administrative dissolution of the defendant, and the defendant’s subleasing the office space that was listed as the defendant’s official address. The trial court rendered final judgment in favor of the plaintiff and denied the defendant’s motion after a hearing.

The defendant appealed. The defendant argued that the trial court abused its discretion in denying its motion to set aside. The defendant claimed that its due process rights to fair notice and an opportunity to be heard had been violated. The defendant claimed that it had demonstrated excusable neglect.

Bresky Law represented the plaintiff on appeal. We argued that the trial court did not abuse its discretion, as the defendant’s due process rights were not violated because notice of every stage of the proceeding was served in accordance with Florida law. We argued that the defendant had been neglectful in subleasing the office space at its publicly listed place of business without updating its official address or making arrangements for its registered agent to receive its mail. We maintained that the defendant did not satisfy its burden of showing excusable neglect where it did not deny being served, but simply did not “specifically recall” being served. We argued the defendant’s actions were a far cry from the negligence or clerical error that traditionally form the basis of excusable neglect.

The District Court of Appeal issued a per curiam affirmance of the order denying the defendant’s motion. This favorable result preserved the jury verdict and final judgment rendered in our client’s favor against the defendant’s challenge.

* The DCA’s decision is not final until disposition of any post-decision motions and issuance of the mandate.