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Alvarez v. State Farm Mut. Auto Ins. Co.

District Court of Appeal of Florida, Third District
Apr 12, 1994
635 So. 2d 131 (Fla. Dist. Ct. App. 1994)

Summary

invalidating substituted service on defendant's cousin where affidavits and supporting documentation, including a telephone bill and marriage license, established defendant was not living at that address on the date of service

Summary of this case from Shurman v. Atlantic Mortg. Inv. Corp.

Opinion

No. 93-2287.

April 12, 1994.

Appeal from the Circuit Court, Dade County, Jon I. Gordon, J.

Wolpe, Leibowitz, Berger Brotman and Steven Berger and Bradley H. Trushin, Miami, for appellant.

Stephen C. Shenkman Associates and Jeffrey R. Roth, Miami, for appellee.

Before SCHWARTZ, C.J., and HUBBART and GERSTEN, JJ.


The defendant below seeks review of an order denying her rule 1.540(b) motion to set aside a default and default judgment entered against her. We reverse.

Substituted service of process in this accident case was secured on Alvarez under section 48.031, Florida Statutes (1991) by serving her cousin at what was allegedly her "usual place of abode" at a home in Hialeah. The affidavits and supporting documentation — including a telephone bill and marriage license — submitted in support of appellant's motion below, however, established uncontradictedly that Alvarez was not living at that address on the date of service or for some time before. See Hunt Exterminating Co. v. Crum, 598 So.2d 113 (Fla. 2d DCA 1992); Partrade, Inc. v. Marchiano, 566 So.2d 588 (Fla. 3d DCA 1990); Marshall Davis, Inc. v. Incapco, Inc., 558 So.2d 206 (Fla. 2d DCA 1990). It is therefore apparent that the purported service of process was ineffective as a matter of law, see Kennedy v. Richmond, 512 So.2d 1129 (Fla. 4th DCA 1987), and that the default and default judgment were therefore void and must be set aside. See Falkner v. AmeriFirst Fed. Sav. Loan Ass'n, 489 So.2d 758 (Fla. 3d DCA 1986); Sams Food Store, Inc. v. Alvarez, 443 So.2d 211 (Fla. 3d DCA 1983); Hyman v. Canter, 389 So.2d 322 (Fla. 3d DCA 1980).

Reversed.


Summaries of

Alvarez v. State Farm Mut. Auto Ins. Co.

District Court of Appeal of Florida, Third District
Apr 12, 1994
635 So. 2d 131 (Fla. Dist. Ct. App. 1994)

invalidating substituted service on defendant's cousin where affidavits and supporting documentation, including a telephone bill and marriage license, established defendant was not living at that address on the date of service

Summary of this case from Shurman v. Atlantic Mortg. Inv. Corp.
Case details for

Alvarez v. State Farm Mut. Auto Ins. Co.

Case Details

Full title:FLAVIA ALVAREZ, APPELLANT, v. STATE FARM MUTUAL AUTO INSURANCE COMPANY, AS…

Court:District Court of Appeal of Florida, Third District

Date published: Apr 12, 1994

Citations

635 So. 2d 131 (Fla. Dist. Ct. App. 1994)

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