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CARTER v. LIL' JOE RECORDS

District Court of Appeal of Florida, Fourth District
May 29, 2002
Case No. 4D01-1492 (Fla. Dist. Ct. App. May. 29, 2002)

Opinion

Case No. 4D01-1492.

Opinion filed May 29, 2002.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Miette K. Burnstein, Judge; L.T. Case No. 00-18234 CACE 21.

Judd J. Goldberg and Andrea Stone Hartley of Akerman, Senterfitt Eidson, P.A., Miami, for appellant.

John H. Pelzer and Fabienne E. Leconte of Ruden, McClosky, Smith, Schuster Russell, P.A., Fort Lauderdale, for appellees.


Appellant, Donte Terrell Carter, appeals a trial court's order denying his motions to set aside default and default judgment. We affirm.

Appellant, a songwriter and aspiring rap star, entered into a contract with appellee, Lil' Joe Records, Inc. (Lil' Joe), to compose and record music. After executing the contract, Lil' Joe learned that appellant had pending felony charges in Texas. He had also been arrested in Ohio and was facing criminal prosecution in that state. Lil' Joe filed suit against appellant on October 26, 2000, including a breach of contract count.

Paragraph 28 of the contract provides:

This Agreement shall be deemed to have been made in the State of Florida and its validity, construction, performance and breach shall be governed by the laws of the State of Florida applicable to agreements made and to be wholly performed therein. Artist agrees to submit itself to the jurisdiction of the Federal or State courts located in Miami in any action which may rise out of this agreement and said courts shall have jurisdiction over all disputes between Company and Artist pertaining to this Agreement and all matters related thereto. In this regard, any process in any action or proceeding commenced in the courts of the State of Florida arising out of any claim, dispute or disagreement under this Agreement may, among other methods, be served upon Artist by delivering or mailing the same, via registered or certified mail, addressed to Artist at the address provided herein for notices to Artist; any such delivery or mail service shall be deemed to have the same force and effect as personal service within the State of Florida.

The contract does not provide an address for appellant.

At the time this action was filed, appellant was incarcerated in Ohio. Lil' Joe served appellant with process by sending a copy of the summons and complaint to Ernestine C. Bell, the deputy sheriff for Lorain County, Ohio, to be served upon appellant at the Lorain Correctional Institution. In the affidavit of service, Bell stated that on November 8, 2000, she "served Donte Terrell Carter by personally handing to Sue Herb, Wardens Secretary, a true copy thereof with all the endorsements thereon together with accompanying documents." Despite Bell's efforts, appellant did not receive the summons and complaint until November 27.

On November 28, Lil' Joe filed for judicial default. Such default was awarded by the trial court on December 12. Thereafter, on December 21, the court granted Lil' Joe a default final judgment. On January 3, 2001, appellant filed a motion to set aside default, in which he alleged improper service of process as a matter of law and, in the alternative, excusable neglect, meritorious defenses, and due diligence. Appellant attached a copy of the summons which directed that process be served upon him at the Lorain Correctional Institution, a copy of a letter between respective counsel, and a note indicating delayed receipt of the summons and complaint. He also referenced Bell's affidavit of service. After a hearing, the trial court denied appellant's motion to set aside default.

Appellant attached a copy of the summons, a letter from Lil' Joe's counsel stating that Lil' Joe would proceed in accordance with the judicial default, and a copy of the final page of the recording contract which contained a handwritten message that the summons and complaint were delivered to appellant on November 27.

Appellant contends that the trial court erred in denying his motion to set aside default. He argues that the court never obtained personal jurisdiction over him due to insufficient service of process. In response, Lil' Joe urges for affirmance because appellant did not obtain a transcript of the hearing on his motion to set aside the default. Alternatively, Lil' Joe asserts that appellant waived personal jurisdiction in the contract and that he failed to demonstrate adequate grounds for setting aside the judgment.

We first address appellant's contention that service of process was improper as a matter of law. It is well established in Florida that:

The object to be accomplished by service of process is to advise the defendant that an action has been commenced against him and warn him that he must appear within a certain time and at a certain place to make such a defense as he has. Jurisdiction is perfected by the proper service of sufficient process. Chapter 48, Florida Statutes, regulates process and service of process. These statutes governing service of process are to be strictly construed to insure that a defendant receives notice of the proceedings. The burden of proving the validity of service of process is on the plaintiff.

Abbate v. Provident Nat'l Bank, 631 So.2d 312, 313 (Fla. 5th DCA 1994) (citations omitted). "A judgment entered without due service of process is void." Falkner v. Amerifirst Fed. Savs. and Loan Ass'n, 489 So.2d 758, 759 (Fla. 3d DCA 1986).

Section 48.031(1)(a), Florida Statutes (2000), states:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

Pursuant to section 48.194(1), Florida Statutes (2000):

Except as otherwise provided herein, service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served.

"Process against a state prisoner shall be served on the prisoner." § 48.051, Fla. Stat. (2000). Appellant relies upon Shurman v. Atlantic Mortgage Investment, 740 So.2d 1221, 1222 (Fla. 5th DCA 1999), as authority for his argument that an inmate's usual place of abode for purposes of service of process is the home where he resided prior to incarceration. In that case, the fifth district held that "if a person leaves a home for prison, and that home continues to be occupied by other family members, that person does not abandon that home as his usual place of abode." Id. at 1222 (relying on Montes v. Seda, 157 Misc.2d 895, 599 N.Y.S.2d 401 (N.Y.Sup.Ct. 1993)).

We note, however, that Shurman has since been overruled by the Supreme Court of Florida. See Shurman v. Atl. Mortgage Inv. Corp., 795 So.2d 952 (Fla. 2001). According to this decision, a prisoner's usual place of abode is the place that inmate is "actually living" at the time of service. Id. at 955. Thus, appellant's usual place of abode at the time of service was jail, not his previous residence. As such, we conclude that service of process on appellant at the Lorraine Correctional Institution was proper.

Alternatively, appellant argues that the judgment should have been set aside pursuant to Florida Rule of Civil Procedure 1.540(b). Rule 1.540(b) states the following:

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; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void . . . .

"The courts of this state have generally been quite liberal in setting aside default judgments, and any reasonable doubt should be resolved in favor of granting the motion in order to permit a trial on the merits." Cunningham v. White, 390 So.2d 467, 468 (Fla. 3d DCA 1980). Despite this liberality, the trial court must determine: "(1) whether the defendant has demonstrated excusable neglect in failing to respond; (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, has demonstrated due diligence in seeking relief." Schwartz v. Bus. Cards Tomorrow, Inc., 644 So.2d 611, 611 (Fla. 4th DCA 1994). Furthermore, "[t]he failure of the defendant to satisfy any one of these elements must result in a denial of the motion to set aside the default." Id.

In proving excusable neglect, the party moving to vacate the default "must set forth facts explaining or justifying mistake or inadvertence by affidavit or other sworn statement." Armando v. Plazza, 658 So.2d 1169, 1169 (Fla. 2d DCA 1995). "Factual representations or argument by counsel made during a hearing are not sufficient." Id.

In support of his motion to set aside the default, appellant failed to attach an affidavit addressing his allegation of excusable neglect. Appellant also failed to obtain a transcript of the hearing on this motion. Without these essential materials, we cannot say that the trial court abused its discretion in denying appellant's motion to set aside default judgment as appellant is unable to demonstrate error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

Accordingly, we affirm the order of the trial court denying appellant's motion to vacate default and default judgment.

AFFIRMED.

SHAHOOD, TAYLOR, JJ., and ANGELOS, CYNTHIA, Associate Judge, concur.

NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.


Summaries of

CARTER v. LIL' JOE RECORDS

District Court of Appeal of Florida, Fourth District
May 29, 2002
Case No. 4D01-1492 (Fla. Dist. Ct. App. May. 29, 2002)
Case details for

CARTER v. LIL' JOE RECORDS

Case Details

Full title:DONTE TERRELL CARTER, Appellant, v. LIL' JOE RECORDS, INC. and LIL' JOE…

Court:District Court of Appeal of Florida, Fourth District

Date published: May 29, 2002

Citations

Case No. 4D01-1492 (Fla. Dist. Ct. App. May. 29, 2002)