Failure to Specifically Plead an Affirmative Defense Means Reversal of Dismissal In Florida Eviction Action
September 8th, 2015
Improper Summons & Due Process in Florida Eviction
On appeal of a landlord/tenant eviction matter in Orange County Florida, the Circuit court held that strict compliance with the Florida Rules of Civil Procedure form 1.923 was required as a condition precedent for a court to obtain personal jurisdiction over a defendant in a Florida eviction matter.
The court held that when a summons served on the defendant failed to: (1) inform the Defendant of his right to request a rent due hearing; (2) inform the Defendant of the rent registry requirements of § 83.60(2), Fla. Stat.; and (3) inform the Defendant of the clerk’s fees for depositing monies into the rent registry, the summons was improper for lack of due process under Florida law.
See order below.
ORDER QUASHING SERVICE OF PROCESS
THIS MATTER came before the Court for consideration upon Defendant’s Motion to Quash Service of Process. After carefully reviewing the pleadings, motions, and exhibits attached thereto, and otherwise being fully advised in the premises, the Court does hereby
ORDER, ADJUDGE, and FIND as follows:
1. This is an action to evict residential tenants for nonpayment of rent subject to the Florida Residential Landlord and Tenant Act.
2. In a special appearance to challenge the purported service of process, the Defendant, James A. Dorn, Jr., by and through his counsel, Jaisen J. Stango, Esquire, demonstrated the attempt to effect service of process on him was ineffective.
3. It is well settled case law that strict compliance with the Florida Statutes that govern service of process is required in order to obtain personal jurisdiction over a party. See Vidal v. Suntrust Bank, 35 Fla. L. Weekly D1724a (Fla. 4th DCA 2010); Schupak v. Sutton Hill Assocs., 710 So. 2d 707, 708 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1148a]; Sierra Holding, Inc. v. Inn Keepers Supply Co., 464 So. 2d 652, 654 (Fla. 4th DCA 1985); Baraban v. Sussman, 439 So. 2d 1046, 1047 (Fla. 4th DCA 1983).
4. Form 1.923 of the Florida Rules of Civil Procedure is the proper summons for a residential tenant eviction.
5. This Court finds the purported service of process on the Defendant, James A. Dorn, Jr., is ineffective as a matter of law. The summons served upon the Defendant failed to satisfy the due process requirements of Florida law for the reasons that (1.) the summons did not inform the Defendant of his right to request a rent due hearing; (2.) the summons did not inform the Defendant of the rent registry requirements of § 83.60(2), Fla. Stat.; and (3) the summons did not inform the Defendant of the clerk’s fees for depositing monies into the rent registry.
6. Consequently, the Court does not have personal jurisdiction over the Defendant, James A. Dorn, Jr.
7. IT IS THEREFORE ORDERED that the purported service of process on the Defendant, James A. Dorn, Jr., is QUASHED.
8. IT IS FURTHER ORDERED that the Clerk of the Court may issue an alias summons for both Defendants, JAMES A DORN, JR & JENNIER STONE DORN.
MYRON ROY HOUGH, III & KATHRYN A HOUGH, Plaintiffs, vs. JAMES A DORN, JR & JENNIER STONE DORN, Defendants. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-CC-003727-O, Division 72. April 13, 2012.