Opinion
No. 2D21-407
02-25-2022
Saleh SOBOH, Appellant, v. Abu Aish HAMZEH, as Assignee of Tijani Sekouri, Appellee.
Sam Y. Badawi of Badawi Law, Tampa, for Appellant. Michael Gonzalez of Gonzalez Law Group, P.A, Tampa, for Appellee.
Sam Y. Badawi of Badawi Law, Tampa, for Appellant.
Michael Gonzalez of Gonzalez Law Group, P.A, Tampa, for Appellee.
ATKINSON, Judge.
Saleh Soboh appeals the denial of his motion to set aside the default entered by the clerk. Because Soboh was not properly served with the eviction complaint and summons, the trial court erred by denying the motion to vacate the clerk's default.
On December 2, 2020, Abu Aish Hamzeh filed a complaint against Soboh seeking to evict him from a commercial property located at 4812 East Busch Boulevard Suite F, Tampa, Florida, 33617. Although the lease agreement was not attached to the complaint, Hamzeh alleged that he was the assignee of Tijani Sekouri, who was the owner and landlord of the leased premises.
Attached to the complaint as an exhibit is a return of service for the three-day notice of nonpayment of rent dated November 20, 2020. The affidavit of service indicates that substitute service of the "EVICTION SUMMONS/NON-RESIDENTIAL; VERIFIED COMPLAINT FOR EVICTION AND DAMAGES with EXHIBIT 'A' " occurred at the leased premises on December 11, 2020, at 1:12 PM. The process server served Aseel Khalad at the leased premises in his capacity as "COUSIN/EMPLOYEE AUTHORIZED TO ACCEPT SERVICE." The comments section of the affidavit states: "Saleh Saboh was not in. Aseel Khalad called Mr. Saboh, and allowed me to speak with him. I explained, to Mr. Saboh, the nature of the documents I had for him. He stated that it was OK to leave the documents, with Aseel Khalad." Hamzeh moved for a default on December 17, 2020, filing an amended motion on December 22, 2020. The clerk entered a default against Soboh on January 12, 2021. On January 14, 2021, counsel for Soboh filed a notice of designation of e-mail address. On January 15, 2021, Soboh filed a motion to set aside the clerk's default.
Hamzeh filed a motion for entry of a final default judgment of eviction on January 15, 2021. Both motions were set for a virtual hearing on January 26, 2021. On January 28, 2021, the trial court entered an order denying the motion to set aside the clerk's default and entered a final judgment of eviction against Soboh.
Soboh contends that the trial court erred by failing to vacate the clerk's default because Hamzeh failed to properly serve him. "Service of process is the means of notifying a party of a legal claim and, when accomplished, enables the court to exercise jurisdiction over the defendant and proceed to judgment." Borden v. E.-Eur. Ins. Co. , 921 So. 2d 587, 591 (Fla. 2006). "It is well settled that the fundamental purpose of service is 'to give proper notice to the defendant in the case that he is answerable to the claim of plaintiff and, therefore, to vest jurisdiction in the court entertaining the controversy.' " Shurman v. Atl. Mortg. & Inv. Corp. , 795 So. 2d 952, 953 (Fla. 2001) (quoting State ex rel. Merritt v. Heffernan , 142 Fla. 496, 195 So. 145, 147 (1940) ).
Service of original process on an individual
is made by delivering a copy of it to the person to be served with a copy of the complaint ... 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.
§ 48.031(1)(a), Fla. Stat. (2020). If an individual is doing business as a sole proprietor, then "[s]ubstituted service may be made ... at his or her place of business, during regular business hours, by serving the person in charge of the business at the time of service if two attempts to serve the owner are made at the place of business." § 48.031(2)(b).
Hamzeh attempted service of process on Soboh at his place of business. However, there is nothing in the record indicating that Soboh was doing business as a sole proprietorship. Service on an individual not operating as a sole proprietor must be made at the individual's abode. See generally Epstein v. Brunel , 271 So. 3d 1173, 1175 (Fla. 3d DCA 2019). Furthermore, assuming Soboh was operating as a sole proprietor, Hamzeh only made a single attempt at service of the complaint on Soboh at the leased premises. Section 48.031(2)(b) requires at least two service attempts on the sole proprietor at his place of business. As a result, substituted service under section 48.031(2)(b) was invalid. See Epstein , 271 So. 3d at 1175 n.1 ("Service was improper for a number of other reasons. For instance, even if Epstein were doing business as a sole proprietorship, section 48.031(2)(b) requires two attempts to serve the owner at the place of business before serving the person in charge. The process server's affidavit reflects that only one attempt was made to serve Epstein."); see also generally Myrick v. Walters , 666 So. 2d 249, 251 (Fla. 2d DCA 1996) ("Statutes governing service of process are to be strictly construed.").
Because Hamzeh never properly served Soboh with process, the trial court erred by denying the motion to set aside the clerk's default.
Reversed and remanded.
SLEET and STARGEL, JJ., Concur.