Opinion
No. 3D23-1612
05-01-2024
BLUE AGAVE IMPORTS, LLC, Appellant, v. Jonathan Alexis Weinberg PINTO, Appellee.
Ehrenstein | Sager, and Michael D. Ehrenstein, Coral Gables, FL, and Latasha N. Johnson, for appellant. Berrio & Berrio, P.A., and Juan D. Berrio, Miami, FL, and Giorgio L. Ramirez, Miami, FL, for appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Carlos Lopez, Judge. Lower Tribunal No. 22-18863
Ehrenstein | Sager, and Michael D. Ehrenstein, Coral Gables, FL, and Latasha N. Johnson, for appellant.
Berrio & Berrio, P.A., and Juan D. Berrio, Miami, FL, and Giorgio L. Ramirez, Miami, FL, for appellee.
Before EMAS, LINDSEY and BOKOR, JJ.
EMAS, J.
Blue Agave Imports, LLC, the plaintiff below, appeals the trial court’s order granting defendant/appellee Jonathan Alexis Weinberg Pinto’s motion to quash service of process and vacate judicial default. Blue Agave contends, in part, that the trial court erred because Pinto failed to meet his burden of overcoming the presumption of valid service with clear and convincing evidence establishing service was invalid. Blue Agave further contends that Pinto’s motion to vacate judicial default should have been denied as untimely.
Upon our review, see Clear 2 Close Title, LLC v. Zap Cap., Inc., 373 So. 3d 1183, 1187 (Fla. 3d DCA 2023) ("A trial court’s ruling on a motion to quash service of process, to the extent it involves questions of law, is subject to de novo review.") (citing Mecca Multimedia, Inc. v. Kurzbard, 954 So. 2d 1179, 1181 (Fla. 3d DCA 2007)); Benefit Admin. Sys., LLC v. W. Kendall Baptist Hosp., Inc., 274 So. 3d 480, 482-83 (Fla. 3d DCA 2019) ("A trial court is accorded broad discretion in determining whether to grant such relief, and we review the trial court’s order for an abuse of that broad discretion.") (citing Tikhomirov v. Bank of New York Mellon, 223 So. 3d 1112, 1116 (Fla. 3d DCA 2017)), we hold that the trial court committed no error in its determination that Pinto had established invalid service by clear and convincing evidence and that, given the invalidity of service, the default was properly vacated. See Gonzalez v. Totalbank, 472 So. 2d 861, 864 n.1 (Fla. 3d DCA 1985) ("When the return of service is regular on its face, the party challenging the service has the burden of overcoming the presumption of its validity by presenting clear and convincing evidence. On the other hand, when, as in this case, the challenging party makes a prima facie showing that the return is defective, then the burden shifts to the person acting under the substituted service provision to prove valid service.") (citing Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983); Winky’s, Inc. v. Francis, 229 So. 2d 903 (Fla. 3d DCA 1969)) (other citation omitted); Preudhomme v. Matthews, 194 So. 3d 1057, 1058 (Fla. 4th DCA 2016) (providing that, to impeach a return of service, "[c]lear and convincing evidence requires that the witnesses to a fact be credible; the facts testified to must be distinctly remembered; the details must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts in issue.") (quotation omitted). See also Clauro Enters., Inc. v. Aragon Galiano Holdings, LLC, 16 So. 3d 1009, 1013 (Fla. 3d DCA 2009) ("It is well-settléd that ‘[a] judgment entered without valid service is void for lack of personal jurisdiction and may be collaterally attacked at any time.’ ") (quoting Alvarado v. Cisneros, 919 So. 2d 585, 587 (Fla. 3d DCA 2006); Mullne v. Sea-Tech Constr. Inc., 84 So. 3d 1247, 1249 (Fla. 4th DCA 2012) ("[I]f the default judgment is void, the appellant does not need to establish the[ ] elements" under rule 1.540(b)) (emphasis omitted); Fla. R. Civ. P. 1.540(b)) (providing in relevant part: "On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; … or (4) that the judgment, decree, or order is void …. ")).
Affirmed.