Wu v. Alem

Timothy Wu, the plaintiff below, sued the defendant, Matias Alem, and his company, Right Move Real Estate. The process server attested that he personally served Defendant Alem
with service of process for himself and also for Right Move Real Estate at the address of Right Move’s registered agent. The face of the return of service was regular, and it complied with the requirements of section 48.21, Fla. Stat., the service statute.

When the Defendants failed to answer, the trial court entered a default judgment. Shortly thereafter, Defendants filed a motion to vacate the default under Rule 1.540(b)(1). Defendants also filed a motion to quash service. Defendant Alem claimed that he was not the person served and that he had never been at the address for service even though the address properly listed the registered agent’s address. The trial court denied Defendants’ motion to quash service specifically finding that “the Court cannot say that it is left with ‘a firm belief or
conviction, without hesitancy,’ that Mr. Alem was not served.” Even though it denied the motion to quash, the trial court granted the motion to vacate the default, finding excusable neglect in failing to timely answer the Complaint. The only theory of excusable neglect was that he was not properly served. Plaintiff Wu appealed the order vacating the default judgment. Defendants cross-appealed, challenging the denial of their motion to quash
service of process. On appeal, the Third District affirmed the denial of the motion to quash service. A return of service is evidence of whether service was validly made. If the return of service is regular on its face, service of process is presumed to be valid and the burden then shifts to the party challenging service to rebut the presumption with clear and convincing evidence. The returns of service were regular on their face, and Plaintiff Alem presented no other evidence to corroborate his testimony that he was not served. A defendant may not impeach the validity of the summons with a simple denial of service; he must present other ‘clear and convincing evidence’ to corroborate his denial. Alem presented only his testimony, so the court had correctly denied the motions to quash service.

The DCA then agreed with Plaintiff Wu that the trial court erred by vacating the default and default judgment under Fla. R. Civ. P. 1.540(b)(1). To set aside a default or default final judgment under Rule 1.540(b)(1), a movant must demonstrate that: (1) the failure to file a timely responsive pleading or paper was the result of excusable neglect; (2) the defaulting
party has a meritorious defense; and, (3) the defaulted party has been reasonably diligent in seeking to vacate the default after it was discovered. Because the excusable neglect claim relied solely on Alem's claim of lack of service, his neglect was not excusable. Defendant failed to rebut the claim of service of process, which only left Alem’s “bald, unsupported” claim
that he didn’t receive service. That isn’t enough to provide competent, substantial evidence of excusable neglect.

The trial court also correctly found that Alem failed to proffer any evidence of a meritorious defense, which should have also been fatal to the motion to vacate under Rule 1.540(b)(1).

Denial of motion to quash was AFFRIMED in the cross-appeal, and the order vacating the default judgment was REVERSED. The Court REMANDED for reentry of a default and default judgment in favor of Wu

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