Florida courts have held, "[e]ssential to substituted service . . . is the fact that the person actually served must be residing in the house of the person to be served." Hovarth v. Aetna Life Ins. Co., 634 So. 2d 240 (Fla. Dist. Ct. App. 1994) (citing Gamboa v. Jones, 455 So. 2d 613 (Fla. Dist. Ct. App. 1984); Hauser v. Schiff, 341 So. 2d 531 (Fla. Dist. Ct. App. 1977)) (emphasis in original). It is undisputed that Mr. Manning, although residing within this residential compound owned by Defendant, does not and has never resided in the same house as the Defendant.
ved there, was residing there); Sangmeister v. McElnea, supra at 676-77 (holding four-month visitor was residing therein); Plushner v. Mills, supra at 446 (concluding that daughter, who was placed in charge of father's home in his absence, was residing therein); Wichert v. Cardwell, 812 P.2d 858, 860 (Wash. 1991) (holding daughter, who was watching parents' home, and staying overnight, met the residing requirement); see also, Pineview Overlook, Inc. v. Cooper, No. C2-95-795, 1995 WL 673008 *2 (Minn.App. Nov. 14, 1995) (concluding that the Summons delivered to Cooper's home, and left with his father-in-law, a visitor staying there for ten days, was reasonably calculated to provide notice); but see,Cleaves v. Funk, 76 F.2d 828, 829-30 (10th Cir. 1935) (requiring permanency of residence); Burtchaell v. Hoffman, 508 So.2d 738, 738-39 (Fla.Dist.App. 1987) (concluding that girlfriend, who was from another State, and who occasionally visited for few days to a week, was not residing therein); Gamboa v. Jones, 455 So.2d 613, 614 (Fla.Dist.App. 1984) (holding that a ten-day visitor was not residing therein). Further we note that, as the Court enunciated in Larson v. Hendrickson, 394 N.W.2d 524, 526 (Minn.App. 1986), Rules governing service are liberally construed when the intended recipient has actual notice of the lawsuit.
A short-term houseguest is not a person residing in the usual place of abode of the person to be served. Couts v. Md. Cas. Co., 306 So. 2d 594 (Fla. 2d DCA 1975) (holding that a stay of a few days is insufficient to qualify that visitor to receive substituted service); Gamboa v. Jones, 455 So. 2d 613 (Fla. 3d DCA 1984) (holding the same for a ten-day visitor). Having had its prima facie showing of regular substituted service rebutted, it was incumbent upon the Bank to provide competing evidence to overcome Mr. Baker's showing of substituted service upon a mere short-term houseguest.
Where no in personam jurisdiction is obtained over a defendant, the defendant is not required to demonstrate a meritorious defense to set aside the default. Ubilla v. LW Supply, 637 So.2d 994 (Fla. 3d DCA 1994); Gamboa v. Jones, 455 So.2d 613 (Fla. 3d DCA 1984). The trial court should not have required Ms. Bennett to demonstrate a meritorious defense to the action once it became clear that the summons and complaint were never properly served.
not reside therein), appeal dismissed, 170 F.2d 1015 (1948); Magazine v. Bedoya, 475 So.2d 1035, 1035-36 (Fla.Dist.Ct.App. 1985) (concluding mother-in-law, who was visiting defendant for six weeks and told process server she lived there, was residing therein); Sangmeister, 278 So.2d at 676-77 (holding four-month visitor was residing therein); Mahone v. Marshall Furniture Co., 235 S.E.2d 672, 673 (Ga.Ct.App. 1977) (holding babysitter was not residing therein); Plushner, 429 A.2d at 446 (concluding daughter placed in charge of father's home in his absence was residing therein); Wichert v. Cardwell, 812 P.2d 858, 860 (Wash. 1991) (holding daughter watching parents' home and staying overnight met residing requirement). But see Cleaves v. Funk, 76 F.2d 828, 829-30 (10th Cir. 1935) (requiring permanancy of residence); Burtchaell v.Hoffman, 508 So.2d 738, 738-39 (Fla.Dist.Ct.App. 1987) (concluding girlfriend from another state occasionally visiting for few days to week not residing therein); Gamboa v. Jones, 455 So.2d 613, 614 (Fla.Dist.Ct.App. 1984) (holding ten-day visitor not residing therein). DECISION
Accordingly, the trial court erred in denying the motion to set aside the default, as service of process upon Ubilla was ineffective, and the trial court lacked personal jurisdiction over him. See Moschetta v. Atlantic Nat'l Bank of Broward, 540 So.2d 166 (Fla. 4th DCA 1989) (where service of process defective, trial court lacked jurisdiction over defendant and improperly denied defendant's motion to set aside default); Gamboa v. Jones, 455 So.2d 613 (Fla. 3d DCA 1984) (same). Because jurisdiction did not lie, defendant need not demonstrate a meritorious defense to the allegations of the complaint.
Essential to substituted service above is the fact that the person actually served must be residing in the house of the person to be served. Gamboa v. Jones, 455 So.2d 613 (Fla. 3d DCA 1984); Hauser v. Schiff, 341 So.2d 531 (Fla. 3d DCA 1977). Furthermore, attempted service of a relative who is not residing with the party to be served is insufficient, regardless of the probability that the party to be served will or does learn of the attempted service. Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227 (Fla. 1986).
In essence, if appellant could prove he did not reside at that address then no jurisdiction was acquired and the subsequent judgment was void. Cf. Gamboa v. Jones, 455 So.2d 613 (Fla. 3d DCA 1984). However, the trial court denied appellant's motion apparently relying on the fact that appellant later received actual notice of the lawsuit.
First, Ms. Oakford's six-week stay at Magazine's residence was long enough that she may properly be regarded as "a person residing therein" under section 48.031(1). Compare Sangmeister v. McElnea, 278 So.2d 675 (Fla. 3d DCA 1973) (four month visit establishes residing therein requirement) with Gamboa v. Jones, 455 So.2d 613 (Fla. 3d DCA 1984) (ten day visit does not meet the requirement of residency). We note also that Ms. Oakford responded affirmatively to the process server's query, "Do you live here?".