TAMARA CARUS, vs COVE AT ISLES AT BAYSHORE HOMEOWNERS ASSOCIATION, INC.,

Carus v. Cove at Isles at Bayshore Homeowners Association, Inc., No. 3D21-2035 (Fla. 3d DCA Nov. 23, 2022) (Bokor, J.; Emas and Scales, JJ., concurring). Appeal from the County Court for Miami-Dade County, Judge Michael G. Barket.

Facts

Parties. Appellant Tamara Carus was the homeowner-defendant below. Appellee Cove at Isles at Bayshore Homeowners Association, Inc. (the “Association”) was the plaintiff.

What happened. On March 31, 2016, the Association filed a two-count collection complaint against Carus and her son, Carlos Gabriel Carus Jr., seeking unpaid regular and special assessments together with interest, costs, and attorney’s fees. The Association then failed to serve Carus for more than five years. It obtained a string of 120-day extensions of the service deadline under Florida Rule of Civil Procedure 1.070(j), even though the earlier extension orders warned that failure to serve within the extended period “shall result in dismissal.” The fourth extension was requested in November 2020 and granted on May 6, 2021. On June 29, 2021, the Association filed a return of service reflecting purported substituted service on June 8, 2021 on “Jane Doe as sister/co-tenant” at the property address, and moved for a default the same day. The son was never served, and the claim against him was dismissed.

Procedural history. Carus moved to quash service of process and, separately, for involuntary dismissal based on the Association’s failure to serve within the time allowed. The county court deferred the default and set an evidentiary hearing. At the hearing the process server did not appear, so the Association offered no testimony about how service was accomplished. Carus’s son testified, without rebuttal, that his mother lives at the property and has no sisters. By the close of the hearing the Association conceded on the record that it could not carry its burden of proving valid service. The trial court nevertheless denied both motions. Carus appealed.

Judgment. Affirmed in part, reversed in part, and remanded. The Third District affirmed the denial of involuntary dismissal but reversed the denial of the motion to quash and instructed the trial court to grant it.

Issues

1. Whether the trial court abused its discretion under Rule 1.070(j) by denying involuntary dismissal after granting repeated extensions of time to serve process, notwithstanding the “shall result in dismissal” language in its own prior orders.
2. Whether a return of service that identifies the person served only as “Jane Doe as sister/co-tenant” is facially valid under section 48.21, Florida Statutes, and, if not, whether the Association carried its burden of proving valid substituted service at Carus’s usual place of abode under section 48.031(1)(a).

Holding

1. No abuse of discretion on the extensions. Rule 1.070(j) gives the trial court broad discretion to extend the time for service even where good cause has not been shown. Conditional “shall result in dismissal” language in an earlier extension order does not strip the court of that discretion, and denial of involuntary dismissal was proper where the record showed continued efforts to serve.
2. Service must be quashed. A return of service that fails to state the name of the person served does not satisfy section 48.21 and is facially defective. A facially defective return carries no presumption of validity, so the defendant is not required to rebut it by clear and convincing evidence; the burden remains on the plaintiff to prove valid service. Because the Association presented no competent evidence that the papers were left at Carus’s usual place of abode with a person residing there, and in fact conceded it could not meet its burden, the motion to quash should have been granted.

Rationale

Involuntary dismissal. The purpose of Rule 1.070(j) is to move cases along the civil docket, not to hand defendants a “free” dismissal. The rule expressly authorizes extensions, and the First District in Sly v. McKeithen, 27 So. 3d 86 (Fla. 1st DCA 2009), confirmed that trial courts may grant them even absent good cause. Given that discretion and the Association’s ongoing service attempts, the Third District found no basis to disturb the denial of dismissal, despite the five-year delay and the warning language in prior orders.

Strict construction of service statutes. Statutes governing service of process are strictly construed and enforced. Shurman v. Atlantic Mortgage & Investment Corp., 795 So. 2d 952 (Fla. 2001). The plaintiff bears the ultimate burden of establishing valid service. Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So. 3d 177 (Fla. 3d DCA 2011).

The return was facially defective. Under Koster v. Sullivan, 160 So. 3d 385 (Fla. 2015), a return of service is presumed valid only if it is regular on its face, meaning it contains the information section 48.21 requires: the date and time the process came to hand, the date and time of service, the manner of service, and the name of the person served. Section 48.21(2) provides that failure to state the required facts invalidates the service. A return that substitutes “Jane Doe” or a physical description for the actual name of the person served does not comply. Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985); Vives v. Wells Fargo Bank, N.A., 128 So. 3d 9 (Fla. 3d DCA 2012); Murphy v. Cach, LLC, 230 So. 3d 599 (Fla. 5th DCA 2017). Because the return here identified the recipient only as “Jane Doe as sister/co-tenant,” it was defective on its face.

No presumption, so no clear-and-convincing burden on the defendant. When the return is facially defective, the defendant need not present clear and convincing evidence to overcome a presumption of validity, because no presumption arises. Vives, 128 So. 3d at 15. The burden therefore stayed with the Association to prove that service complied with section 48.031(1)(a).

The Association could not prove valid substituted service. Section 48.031(1)(a) permits substituted service by leaving the papers at the defendant’s usual place of abode with a person residing there who is fifteen or older, after informing that person of the contents. “Usual place of abode” means the place where the defendant is actually living at the time of service. Robles-Martinez, 88 So. 3d at 182. The process server was unavailable to testify, the only evidence at the hearing was the son’s unrebutted testimony that his mother has no siblings, and the Association conceded it could not meet its burden. On that record the trial court had no basis to uphold service, and the Third District reversed with instructions to grant the motion to quash.

Full Opinion

Read the Third District’s opinion: Tamara Carus v. Cove at Isles at Bayshore Homeowners Association — Third District Court of Appeal Opinion (PDF).