05-1244 GILBRT V. STOREY

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State: Florida

Court: Florida Third District Court

Docket No: 05-1244 GILBRT V. STOREY

Case Date: 02/15/2006

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2006

HAWANDA GILBERT, Appellant, vs. JACQUELINE STOREY, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 04-14693 CASE NO. 3D05-1244

Opinion filed February 15, 2006. An Appeal from the Circuit Court for Miami-Dade County, Michael B. Chavies, Judge. Wasson & Associates and Annabel C. Majewski, and Roy D. Wasson; Franklin C. Ferguson, Sr., for appellant. Kendrick G. Whittle, for appellee.

Before COPE, C.J., and GERSTEN and SUAREZ, JJ. COPE, C.J. This is an appeal of an order denying a motion to set aside a default judgment. As the default should not have been

entered, we direct that the default and default judgment be set aside. Plaintiff-appellee Jacqueline Storey is the personal

representative of the Estate of Elisha Anderson.

She filed an

action to quiet title to real estate located in Miami, Florida. The defendant, Hawanda Gilbert, is the grantee of a quitclaim deed which conveyed the real estate to her. A process server attempted to make personal service on

defendant Gilbert at the home of Rosa Gilbert, the defendant's mother-in-law. Rosa Gilbert refused service, stating that the The process server

defendant no longer lived at that address. left without attempting service. On initiated September the 21, 2004, to the serve

personal defendant

representative Gilbert by

procedure

publication.

The advertisement published in the Daily Business

Review stated that the defendant must serve and file her written defenses on or before October 28, 2004. On September 22, 2004 a different process server came to Rosa Gilbert's home. Rosa Gilbert told the new process server The process server threw Rosa Gilbert kicked the

that the defendant did not live there. the papers into the house and left.

papers out of the door and closed the door. On October 14, 2004, the personal representative filed a motion for default. The clerk immediately entered a default.

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The same day the trial court entered a final judgment quieting title in favor of the personal representative. Meanwhile, on October 14 counsel for defendant Gilbert

served by mail a notice of appearance and motion to dismiss the complaint with prejudice. These reached the clerk and were

filed the next day, October 15. On October 26, defendant Gilbert filed a motion to vacate the default. The trial court conducted an evidentiary hearing.

The sole witness who testified was the defendant's mother-inlaw, Rosa Gilbert. She testified that the defendant receives

some of her mail at Rosa Gilbert's home but does not live there and has not lived there for a significant period of time. testimony was not impeached or contradicted. This

At the conclusion

of the hearing the trial court denied the motion to set aside the default. The defendant has appealed.

The default and default judgment in this case were based on the theory that the defendant had been validly served by leaving the papers at the home of Rosa Gilbert. The claim was that the

representative was entitled to a default and default judgment because defendant Gilbert had not responded to the complaint within twenty days after service. See Fla. R. Civ. P.

1.140(a)(1). The flaw in the logic is that the attempted personal

service was no good.

So far as is pertinent here, service of

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process may be made by delivering a copy of it to the defendant "or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents." Fla. Stat. (2004) (emphasis added). In this case the personal representative attempted service at the home of the defendant's mother-in-law, but that was not the defendant's usual place of abode. The attempted personal

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