Third District Court of Appeal
State of Florida
Opinion filed July 20, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-0352
Lower Tribunal No. 20-10860
________________
Daniella Becker,
Appellant,
vs.
Timothy Becker,
Appellee.
An Appeal from a non-final order the Circuit Court for Miami-Dade
County, Christina Marie DiRaimondo, Judge.
Albert W. Guffanti, P.A., and Albert W. Guffanti, for appellant.
The Law Offices of A.K. Esquire, PLLC and Matthew Z. Karim (Fort
Lauderdale), for appellee.
Before LINDSEY, HENDON and BOKOR, JJ.
BOKOR, J.
We affirm the trial court’s denial of Daniela Becker’s motion to dismiss
based on improper service. Competent, substantial evidence supports the
trial court’s findings that Daniela attempted to evade service of process
initiated by her husband, Timothy Becker.1 The issue hinges on whether the
failure of the process server to inform her of the contents of the items
rendered service defective. 2
“Although a return of service is presumptively correct, the invalidity of
service may be established by clear and convincing evidence.” Montano v.
Montano,
472 So. 2d 1377, 1378 (Fla. 3d DCA 1985). We have no such
clear and convincing evidence to undermine the presumptively valid service
here. Under the facts of this case, the process server complied with the
service statute. See § 48.031, Fla. Stat.
Competent, substantial evidence supports the trial court’s conclusion
that Daniella “was properly served the Petition for Dissolution of Marriage
with minor children, on March 13th, 2021.” Competent, substantial evidence,
1
A process server approached Daniella outside her father/counsel’s house.
The process server called out her married name, eliciting a response of “no.”
Daniella proceeded to run into her father’s residence without accepting the
papers after the process server told her that he had a summons and
complaint to serve on her.
2
Daniella also argues that the petition is a “nullity” because prior counsel
signed it. The argument is without merit, and we affirm as to that basis
without further comment.
2
specifically, the affidavit and testimony of the process server, supports a
conclusion that the process server clearly identified that he “had a summons
and complaint and that [Daniella] was being served with a lawsuit,” that
Daniella didn’t accept the papers, that she didn’t answer to her name, that
she did not wait for an explanation of the contents of the papers, and that
she proceeded into her father’s house instead of accepting such service.
Further, the record evidence establishes that after Daniella evaded service,
her father blocked access and said the process server would have to “deal
with him.” At this point, the process server testified he placed the papers in
a conspicuous location and screamed to anyone listening that Daniella has
been served. Additionally, the process server called Daniella after service,
leaving an (unreturned) phone message attempting to explain service.
Daniella doesn’t contest that she received the papers or that the
process server attempted service; rather, her argument of improper service
hinges upon the process server’s alleged failure to explain the contents of
the papers in the face of her evasion of service. Daniella cites in her reply
to cases in which this court quashed service based on either the process
server’s failure to identify the recipient, or failure to explain the contents of
the papers served. See Montano,
472 So. 2d at 1378 (reversing trial court
order and quashing service where process server failed to identify recipient
3
of service); see also Bache, Halsey, Stuart, Shields, Inc. v. Mendoza,
400
So. 2d 558, 559 (Fla. 3d DCA 1981) (affirming trial court order setting aside
default where deputy sheriff who served papers did not recall explaining
contents and “that service consisted solely of a knock on the door, a man
saying ‘Mendoza’, and delivery of papers”). However, the cases cited
contain critical distinctions from the record evidence in this matter. Here,
unlike Montano, no one disputes that the process server identified Daniella,
the correct recipient, and attempted to serve her. Here, unlike Mendoza, the
record contains testimony that the process server did more than simply drop
off papers; he explained he had a summons and complaint relating to a
lawsuit and screamed into the house after leaving the papers that Daniella
was served. Additionally, here, unlike Mendoza, the record contains
testimony that Daniella actively evaded service, thereby frustrating any
attempt at further explanation or conversation about the contents.
The trial court correctly concluded that the process server’s actions in
the face of Daniela’s attempt to evade service constituted compliance with
the relevant statute. See Liberman v. Com. Nat'l Bank of Broward Cnty.,
256
So. 2d 63, 63–64 (Fla. 4th DCA 1971) (affirming service under similar
circumstances where “[t]he process server (a deputy sheriff) testified that,
being thus frustrated by Mr. Liberman's conduct, he then left the copy of
4
process and suit papers in the mail box, drove his car around the block and
parked where he could observe the Liberman residence. Shortly thereafter,
he observed Mr. Liberman come out of the house, go to the mail box, remove
the papers therefrom, and return to the house”); see also Olin Corp. v.
Haney,
245 So. 2d 669, 670–71 (Fla. 4th DCA 1971) (explaining that where
a person flees from a process server “in a deliberate attempt to avoid service
of process, the delivery requirement of [section 48.031] . . . may be satisfied
if the process server leaves the papers at a place from which such person
can easily retrieve them and takes reasonable steps to call such delivery to
the attention of the person being served”); Palamara v. World Class Yachts,
Inc.,
824 So. 2d 194, 195 (Fla. 4th DCA 2002) (finding personal service;
citing to Haney and Liberman).
Affirmed.
5
