BLOCK v. TOSUN No. 4D11-1594.
77 So.3d 871 (2012)
Nancy C. BLOCK and John E. Stephens, Jr., as Trustees of the Jackson Martindell Trust dated December 30, 1988, Appellants, v. Rip TOSUN, Appellee.
District Court of Appeal of Florida, Fourth District.
January 18, 2012.
Robert Garven, Margate, and Fredric C. Buresh, Fort Lauderdale, for appellants.
Lance W. Shinder and Veronica Neisler of Lance W. Shinder, P.A., Boca Raton, for appellee.
Nancy C. Block and John E. Stephens, Jr., as Trustees of the Jackson Martindell Trust dated December 30, 1988, (the "Trustees") appeal the trial court's order setting aside a 1992 default final judgment against Rip Tosun. Because the trial court granted Tosun's motion to vacate without first conducting an evidentiary hearing, we reverse and remand for further proceedings.
The Trustees originally filed their complaint against Tosun in March 1992. On July 23, 1992, a default final judgment for $72,081.53 was entered in favor of the Trustees after Tosun failed to file any response in the case. After nearly eighteen years of no record activity, Tosun was served with a subpoena duces tecum in aid of execution in April 2010.
In January 2011, Tosun filed a motion to vacate both the default and the default final judgment. He claimed that service of process had never been made prior to the 1992 default and as a result the final judgment was void for lack of service. The motion alleged that the court file containing the original return of service had been destroyed. The office of the clerk of the circuit court, however, maintained a progress docket for the case. The progress docket contained an entry dated June 15, 1992, which read, "Summons Returned Served; Sums Retd Srvd 4/21/92 On Rip Tosun (Spb)."
Tosun attached an affidavit to his motion in which he swore that he had no recollection of having ever been served with a copy of the complaint and summons. He also averred that he did not remember having ever received a copy of the default final judgment that was entered against him on July 23, 1992. He pointed out that although the default final judgment stated
Subsequent to a non-evidentiary hearing on Tosun's motion, the trial court entered an order granting Tosun's motion to vacate the default final judgment. The order states, "The Court file no longer exists and the Plaintiffs are unable to provide a return of service."
The Trustees contend that the trial court erred in concluding that the default judgment had to be set aside as a matter of law because the Trustees were unable to provide a return of service. We agree.
"[A] judgment entered without service of process on the defendant is void and may be attacked at any time. . . ." M.L. Builders, Inc. v. Reserve Developers, LLP,
Apparently, however, the trial court concluded that the only way the Trustees could meet their burden of proving that Tosun had been properly served with process prior to the 1992 default was by presenting the return of service in response to Tosun's motion to set aside the default judgment. While a return of service is one means by which a plaintiff can prove that there had been a valid service of process on the defendant prior to the entry of a default judgment (and perhaps the best proof of such), the return of service is not the only means to do so.
The record here contained a certified printout of the clerk's progress docket which included an entry dated June 15, 1992 stating, "Summons Returned Served; Sums Retd Srvd 4/21/92 On Rip Tosun (Spb)." The record also contained a certified copy of the 1992 "Final Judgment on Default." Together these documents constitute evidence which affords a reasonable basis for the conclusion that it is more likely than not that service of process on Tosun was properly perfected in 1992 before the final default judgment was entered.
The Trustees also contend that for the default final judgment to be set aside, Tosun's mere denial of service should be insufficient as a matter of law. They argue that Tosun must also present evidence to corroborate his denial of service and that such evidence must be clear and convincing. That would have been Tosun's burden if the Trustees had proffered a return of service that appeared valid on its face. See Se. Termite & Pest v. Ones,
Instead, on remand, the trial court should treat the Trustees' documentary evidence of service of process here as creating a rebuttable presumption affecting the burden of producing evidence only. See § 90.302(1), Fla. Stat. (2011). Thus, Tosun will have the burden of introducing credible and admissible evidence showing he was not properly served with process prior to the entry of the 1992 default judgment. If he does so, then the trial court, as the trier of fact, will weigh the evidence and resolve the question of fact at issue here. Cf. Depelisi v. Wishner,
Accordingly, we reverse and remand for the trial court to conduct an evidentiary hearing in accordance with this opinion.
Reversed and remanded with instructions.
MAY, C.J., and STEVENSON, J., concur.
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