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Moschetta v. Atlantic National Bank

District Court of Appeal of Florida, Fourth District
Mar 15, 1989
540 So. 2d 166 (Fla. Dist. Ct. App. 1989)

Opinion

No. 87-3357.

March 15, 1989.

Appeal from the Circuit Court, Broward County, Estella M. Moriarty, J.

Paul D. Novack of Rosen Switkes, Miami Beach, for appellant.

Eric J. Braunstein of Goodman Webber, P.A., Hollywood, for appellee.


This is an appeal from an order denying appellant's motion to set aside a final judgment on the grounds that the trial court never acquired personal jurisdiction over the appellant. At issue below was whether the appellant resided at the address where a summons was served upon his daughter. In essence, if appellant could prove he did not reside at that address then no jurisdiction was acquired and the subsequent judgment was void. Cf. Gamboa v. Jones, 455 So.2d 613 (Fla. 3d DCA 1984). However, the trial court denied appellant's motion apparently relying on the fact that appellant later received actual notice of the lawsuit. We believe the trial court failed to apply the correct legal test, that of the appellant's residency at the time of service of process. Accordingly, we reverse and remand with directions that the trial court reconsider the appellant's motion and resolve the issue set out above. The trial court may, at its discretion, resolve the issue on the present record, or direct further proceedings.

HERSEY, C.J., and DOWNEY and ANSTEAD, JJ., concur.


Summaries of

Moschetta v. Atlantic National Bank

District Court of Appeal of Florida, Fourth District
Mar 15, 1989
540 So. 2d 166 (Fla. Dist. Ct. App. 1989)
Case details for

Moschetta v. Atlantic National Bank

Case Details

Full title:MATTHEW J. MOSCHETTA, D/B/A CALAMITY JANE'S GUN SHOP, APPELLANT, v…

Court:District Court of Appeal of Florida, Fourth District

Date published: Mar 15, 1989

Citations

540 So. 2d 166 (Fla. Dist. Ct. App. 1989)

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