Associate Attorney
In Smith v. Smith (Fla. 3d DCA Mar. 11, 2026), the Third District Court of Appeal addressed a recurring service-of-process issue: when a facially valid return of service exists, what evidence does a defendant actually need to quash it?
Orville Smith sued Alexandra Smith for defamation, harassment, and related claims. After several failed attempts to serve Alexandra, and with the 120-day deadline under Florida Rule of Civil Procedure 1.070(j) looming, Orville served Alexandra at her workplace. The return of service noted that the summons was accepted by someone authorized to accept service on Alexandra’s behalf at her place of employment.
The trial court initially dismissed the case, but then it vacated the dismissal after Orville filed the return of service. Alexandra then moved to quash, attaching a letter from her employer’s human resources department indicating she had separated from employment there before the service date. The motion contained no affidavit from Alexandra, no affidavit from a records custodian, and no other admissible evidence. The trial court nonetheless quashed service and dismissed the case. Orville appealed.
The Third DCA reversed.
The court reaffirmed the well-established rule that a return of service valid on its face is presumed valid unless the defendant presents clear and convincing evidence to the contrary. That burden does not shift easily. An unverified motion and a lone hearsay letter from an HR assistant, with no affidavit from the defendant, no affidavit from a records custodian, and nothing otherwise admissible, simply do not meet that burden.
Practice pointers
- A facially valid return of service carries a presumption of validity which the defendant bears the burden of rebutting.
- To quash service, a defendant must submit admissible evidence.
- A hearsay letter attached to an unverified motion, without more, is insufficient to meet the clear and convincing evidence standard.
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