Williams v. Nuno

239 So.3d 153

Bryan WILLIAMS a/k/a "Birdman", Appellant,

v.Javier NUNO, Appellee.

No. 3D17–604

District Court of Appeal of Florida, Third District.

Opinion filed February 07, 2018

Alan R. Soven, P.A., and Alan R. Soven, for appellant.

Remer & Georges–Pierre, PLLC, and Anthony M. Georges–Pierre, for appellee.

Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.

ROTHENBERG, C.J.

Bryan Williams a/k/a "Birdman" ("the defendant") appeals a non-final order denying his supplemental motion to dismiss the complaint based on insufficiency of service of process, asserting that, contrary to the return of service, the person the process server gave the summons and complaint to does not reside at the defendant's usual place of abode as required under section 48.031(1)(a), Florida Statutes (2016).¹ For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Javier Nuno ("the plaintiff") filed suit against the defendant. The return of service reflects, in part, that on June 15, 2016, the process server delivered a copy of the complaint and summons to Cory Jones ("Mr. Jones") at the defendant's usual place of abode in Miami Beach, Florida, and that Mr. Jones is over the age of fifteen and a co-resident at the defendant's Miami Beach residence.

The defendant filed a supplemental motion to dismiss the complaint, along with his sworn affidavit, challenging the sufficiency of the substitute service of process. The motion to dismiss and the defendant's affidavit state that the defendant employs Mr. Jones as a security guard; Mr. Jones has never resided at the defendant's Miami Beach residence; Mr. Jones resides at a specific address in Hollywood Beach, Florida; Mr. Jones is not a member of the defendant's household; and Mr. Jones is not authorized to accept complaints on behalf of the defendant.

At the evidentiary hearing on the defendant's supplemental motion to dismiss, the return of service and the defendant's affidavit were introduced into evidence. In addition, Mr. Jones and the process server testified.

Mr. Jones testified that on June 15, 2016, he went to the front gate of the defendant's Miami Beach residence because he saw someone taking pictures. A process server then handed him a complaint, but the process server never asked Mr. Jones if he resided at the defendant's Miami Beach residence or if he was a member of the defendant's household. Mr. Jones testified that he provides private security services to the defendant; he has never resided at the defendant's Miami Beach residence; he resides at a specific address in Hollywood Beach, Florida; he is not a member of the defendant's household; and he does not have the authority to accept a complaint on behalf of the defendant. Mr. Jones's testimony was not corroborated with any documentation, such as a driver's license, a lease of his alleged Hollywood Beach residence, or utility bills associated with the specific Hollywood Beach address.

In contrast, the process server testified that, prior to identifying himself as a process server, he asked Mr. Jones if he lived at the defendant's Miami Beach residence, and in response, Mr. Jones stated, "Yes, I do live here." Thereafter, he asked Mr. Jones if the defendant was home, and after Mr. Jones responded that the defendant was not, he identified himself as a process server and gave the complaint and summons to Mr. Jones, who is over the age of fifteen and a co-resident at the defendant's Miami Beach residence.

At the conclusion of the evidentiary hearing, the trial court stated that it considered the witnesses' demeanor, frankness, and ability to remember matters relating to their testimony; the interest each witness has in the outcome of the case; and the reasonableness of their testimony. Based on these considerations, the trial court found that the process server was credible and that the service of process was valid, and the trial court denied the defendant's supplemental motion to dismiss the complaint. The defendant's non-final appeal followed.

II. ANALYSIS

To the extent the trial court's ruling on the supplemental motion to dismiss the complaint involves questions of law, our review is de novo. See Robles–Martinez v. Diaz, Reus & Targ, LLP, 88 So.3d 177, 179 (Fla. 3d DCA 2011). However, a trial court's factual determinations, including credibility determinations, are ordinarily not disturbed on appeal. See Davidian v. JP Morgan Chase Bank, 178 So.3d 45, 48–49 (Fla. 4th DCA 2015).

The party invoking the court's jurisdiction has the burden of proving proper service of process. See Re–Employment Servs., Ltd. v. Nat'l Loan Acquisitions Co., 969 So.2d 467, 471 (Fla. 5th DCA 2007). "If the return [of service] is regular on its face, then...