A.T. Clayton & Company v. Hachenerger
Filing
109
ORDER granting 46 Motion to Dissolve Writ of Garnishment (Centennial Bank);granting 47 Motion to Dissolve Writ of Garnishment (Regions Bank); granting 98 Motion to Dissolve Writ of Garnishment (Fifth Third Bank); 100 Motion to Dissolve Writ of Garnishment (First National Bank of Central Florida). Signed by Magistrate Judge Thomas B. McCoun III on 5/19/2011. (JDE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
A.T. CLAYTON & COMPANY,
Plaintiff,
v.
Case No. 8:10-mc-148-T-30TBM
DONALD HACHENBERGER,
Defendant.
/
ORDER
THIS MATTER is before the court on the following motions:
1.
Defendant’s Motion to Dissolve Writ of Garnishment and Memoranda of
Law (directed to Centennial Bank) (Doc. 46); Plaintiff’s response in
opposition (Doc. 62);
2.
Defendant’s Motion to Dissolve Writ of Garnishment and Memoranda of
Law (directed to Regions Bank) (Doc. 47) Plaintiff’s response in opposition
(Doc. 63);
3.
Defendant’s Motion to Dissolve Writ of Garnishment and Memoranda of
Law (directed to Fifth Third Bank) (Doc. 98); Plaintiff’s response in
opposition (Doc. 105);
4.
Defendant’s Motion to Dissolve Writ of Garnishment and Memoranda of
Law (directed to First National Bank of Central Florida) (Doc. 100); and
Plaintiff’s response in opposition (Doc. 105).
By his motions, Defendant seeks an order pursuant to Rule 64, Fed. R. Civ. P., and
§ 77.07, Fla. Stat., dissolving the Writs of Garnishment directed to four garnishees–
Centennial Bank, Regions Bank, Fifth Third Bank, and First National Bank of Central Florida.
Defendant urges that the Writs are based on a Connecticut Judgment that is void due to the
failure of Plaintiff to effectuate proper service of its complaint upon him in the Connecticut
litigation. Additionally, as to the Fifth Third Bank account, Defendant argues the money is
not his, but rather belongs to Katharine Wertz, and thus cannot be garnished.
Plaintiff responds that the motions should be denied as service was properly effected
in the Connecticut litigation, the Connecticut Judgment is valid, and Defendant has made no
attempt to set aside the judgment in that action.1 As to the Fifth Third account, Plaintiff also
argues that Defendant has joint control of the money in the account and has used it for his own
personal and business expenses.2 Because I conclude that service was not properly effected on
Defendant in the Connecticut litigation under Florida or federal law, the default judgment is
void and cannot serve as a basis for garnishment here, and thus the subject writs should be
dissolved.
I.
In November 2010, Plaintiff, A.T. Clayton & Company, initiated this miscellaneous
action by registering with this court a Default Judgment against Defendant, Donald
Hachenberger, in the District of Connecticut dated September 16, 2010. (Doc. 1). Thereafter,
Plaintiff filed motions for writs of garnishment directed to numerous banks including the four
garnishee banks at issue here. Centennial Bank, Regions Bank, Fifth Third Bank, and First
1
Since the filing of Plaintiff’s response and the hearing on the instant motions,
Defendant has now filed a motion to vacate the default judgment, pursuant to Rules 55(c) and
60(b) in the Connecticut District Court, Case No. 3:10-cv-577. See (Doc. 106).
2
Plaintiff points to the facts that Defendant is jointly named on the account with Ms.
Wertz, he is the only one who has written checks on the account, and the majority of the
monies contained in the account were deposits from companies owned by Defendant.
2
National Bank of Central Florida each answered the writ indicating monies were being held in
accounts for Defendant by those banks. See (Docs. 30, 35, 80, 92).
By his motions to dissolve the writs, Defendant claims that the Connecticut Default
Judgment is void and cannot legally provide the basis for a writ of garnishment. Specifically,
Defendant argues that the foreign judgment is void due to the failure of Plaintiff to effectuate
proper service on him in Florida.3 Thus, he asserts that in an effort to serve him in connection
with the Connecticut lawsuit, Plaintiff’s process server left the Complaint and Summons at
Defendant’s residence at 2878 Markham Woods Road, Longwood, Florida, 32779, with
William Manning. By Defendant’s account, William Manning is the caretaker of this property
and works for a company owned by Defendant but does not reside with Defendant. Instead,
Manning lives at 2876 Markham Woods Road, Longwood, Florida, 32779. Defendant urges
that while Florida law allows for substituted service of process on an individual by leaving the
process at his usual place of abode with a person of the appropriate age residing therein,
service on a non-resident caretaker of the property is insufficient to accomplish proper service
and neither the close proximity of the residences, nor the fact that Manning had access to
Defendant’s house, supports the contention that Manning is a resident of Defendant’s house.4
3
Pursuant to Fed. R. Civ. P. 4(e)(1), service was purportedly made on the Defendant in
accordance with Florida law, in particular, Fla. Stat. § 48.031(1)(a).
4
Defendant cites Hovarth v. Aetna Life Insurance Co, 634 So. 2d 240 (Fla. Dist. Ct.
App. 1994).
3
Moreover, even if the party to be served learns of the attempted service, this does not satisfy
the requirements of Florida’s statute authorizing substituted service.5
Plaintiff’s response is two-fold. First, Plaintiff urges that service was proper as
William Manning is a co-resident of the Defendant. Although Manning’s numbered address
is 2876 Markham Woods Road and Defendant’s is 2878 Markham Woods Road, the property
is essentially a single “compound” owned by the Defendant and his wife. The “compound”
consists of three buildings surrounded by one fence with a single entry gate and a common
driveway which leads to all three structures on the property. The property has a single
mailbox, and the only reason for the different numbered addresses was compliance with a
request by the fire department. For all intents and purposes, Plaintiff urges that the property is
a single residence, owned by Defendant, and Mr. Manning should be considered a co-resident
of the residence.6
Alternatively, Plaintiff urges that personal service may be waived under Florida law
in certain circumstances including where, as here, Defendant has authorized someone else to
accept service on his behalf.7 And, such is consistent with Fed. R. Civ. P. 4(e)(2)(C), which
allows for service upon an authorized agent. In that regard, Plaintiff points to several prior
5
In support, Defendant cites Bedford Computer Corp. v. Graphic Press, Inc., 484 So.
2d 1225, 1227 (Fla. 1986).
6
Plaintiff also notes that when initially questioned as to his address, Mr. Manning
stated 2878, before correcting himself to say 2876 Markham Woods Road.
7
Plaintiff cites George Fischer, Ltd. v. Plastiline, Inc., 379 So. 2d 697 (Fla. Dist. Ct.
App. 1980), for the proposition that Florida recognizes the implied authority to accept service
of process on behalf of another.
4
lawsuits in which Mr. Manning accepted service on Defendant’s behalf, without objection. It
notes that the call box at the front entry gate directs visitors to press “3" for deliveries, which
then directly calls Mr. Manning’s cellular telephone. Given Mr. Manning’s comments to the
process server that he was the one to whom such papers are given, coupled with his history of
accepting service of process on behalf of Defendant in at least three other lawsuits, Manning
is an agent authorized to accept service for the Defendant.
An evidentiary hearing on the motions was conducted April 8, 2011.
II.
Garnishment actions are governed by Federal Rule of Civil Procedure 64 which
addresses the law applicable to seizure of persons or property. In pertinent part, Rule 64
provides, “[a]t the commencement of and throughout an action, every remedy is available that,
under the law of the state where the court is located, provides for seizing a person or property
to secure satisfaction of the potential judgment. But a federal statute governs to the extent it
applies.” Fed. R. Civ. P. 64(a). In Florida, “[s]ervice of the writ [of garnishment] shall make
garnishee liable for all debts due by him or her to defendant and for any tangible or intangible
personal property of defendant in the garnishee’s possession or control at the time of the
service of the writ . . . .” § 77.06(1), Fla. Stat. (2000). Dissolution of a writ may be obtained
by a defendant, by motion, “unless the [plaintiff] proves the grounds upon which the writ was
issued . . . .” § 77.07(1), Fla. Stat. (2005).
Under the Federal Constitution, foreign judgments are to be given full faith and
credit of the law by courts in every jurisdiction. Art. IV, § 1, U.S. Const. “Foreign
judgments, however, may be challenged on the grounds that the foreign court lacked either
5
personal or subject matter jurisdiction.” In re Estate of O’Keefe, 833 So. 2d 157, 160 (Fla.
Dist. Ct. App. 2002) (citing Milligan v. Wilson, 107 So. 2d 773, 775 (Fla. Dist. Ct. App.
1958)). Thus, Defendant may properly challenge the Connecticut default judgment here since
he did not appear in the Connecticut court and the validity of service of process was not
litigated there. See, e.g., Whipple v. JSZ Fin. Co., 885 So. 2d 933, 938 (Fla. Dist. Ct. App.
2004) (default judgment entered by Texas court not entitled to full faith and credit in Florida
where Texas court lacked personal jurisdiction over Whipple based on invalid service of
process). “It is improper to allow a garnishment based upon an underlying judgment that
fails.” Camodeca v. Camodeca, 470 So.2d 863 (Fla. Dist. Ct. App. 1985).
Service of Process under the federal rules may be accomplished one of several ways.
Pertinent to this case, Rule 4 provides:
(e) Unless federal law provides otherwise, an individual . . . may be served in a
judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or where
service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of
abode with someone of suitable age and discretion who resides there;
(C) delivering a copy of each to an agent authorized by appointment or by
law to receive service of process.
Fed. R. Civ. P. 4(e).
Florida service of process is governed generally by § 48.031, which provides in
pertinent part:
6
(1)(a) 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.
§ 48.031(1)(a), Fla. Stat. (2004). Florida law requires strict compliance with statutes
governing service of process. Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952, 954 (Fla.
2001).
III.
A.
Testimony establishes that Donald Hachenberger was not personally served with the
summons and complaint in the Connecticut litigation. Instead service was made on William
Manning, a caretaker for Hachenberger, residing at his residential compound in Longwood,
Florida. Sharon Murphy, a certified process server, testified that she received a summons and
complaint in the Connecticut litigation in April 2010. She drove to the address given, pressed
a button on the call box at the gated entrance and asked for Mr. Hachenberger. The person
answering indicated he would be right up. She was then met at the gate by an individual (Mr.
Manning) who advised that Mr. Hachenberger was not home. She informed Mr. Manning of
the documents she had and was advised by him that he accepted all legal documents on
Hachenberger’s behalf. She then asked him if he “resided at the residence” and Mr. Manning
indicated he did and the process was left with Mr. Manning.8 Ms. Murphy could not see the
8
The “Verified Return of Service” signed by Ms. Murphy and filed with the
Connecticut court affirms that she:
SUBSTITUTE served [Donald Hachenberger, 2878 Markham
Woods Road, Longwood, FL.] by delivering a true copy of the
SUMMONS . . . AND COMPLAINT with the date and hour of
7
residence(s) from the entrance. In an affidavit filed in support of the Plaintiff, she indicates
that “[w]hen I served Mr. Manning at the house on 2878 Markham Woods Road, Mr.
Manning informed me that he lived on the premises. . . . Mr. Manning told me that he was Mr.
Hachenberger’s assistant and that he was the person to serve when trying to serve Mr.
Hachenberger.” (Doc. 62-2, ¶¶ 5, 7).
William R. Manning, Jr. is an employee of Xamer, Inc., a company owned by
Hachenberger. Since 2000, he has been the caretaker at property owned by Defendant and his
wife. The property occupies a gated seven acres of land off Markham Woods Road in
Longwood, Florida. There are three structures on the property. Manning resides in the
original structure on the property now bearing the address of 2876 Markham Woods Road.
Defendant resides in a separate structure that he and his wife built bearing the address of
2878 Markham Woods Road. A third structure on this property is used as a car barn and bears
the address of 2874 Markham Woods Road.9 Manning has never resided in the same
residence as the Defendant. Manning’s duties include accepting deliveries to the property and
such deliveries have included legal process as in this case. By his account, he is not appointed
to accept service of process by the Defendant and on only one occasion has he been expressly
service endorsed thereon by me, to: WILLIAM MANNING as
CO RESIDENT at the address of: 2878 MARKHAM WOODS
ROAD, LONGWOOD, FL., the within named person’s usual
place of Abode, who resides therein, who is fifteen (15) years of
age or older and informed said person of the contents therein, in
compliance with state statutes.
(Doc. 62-1 at 1).
9
It appears that at one time the property had a single address, but this was changed at
the request of the fire department.
8
authorized to do so by the Defendant.10 Matters he receives on behalf of Defendant of
whatever sort are deposited in a hallway off the garage leading into Defendant’s house.
Donald Hachenberger testified also that he has never resided with Mr. Manning nor
has he ever appointed Manning to accept service for him or any of his companies. He and his
wife purchased the parcel and then subdivided it when he built his home. He claims never to
have discussed the matter of service of process with Manning. He acknowledged however
that service of process had been made on Manning in the past related to litigation against one
or the other of his companies without objection. These matters were handled by counsel and
the service was not objected to. In another matter involving his wife, his divorce attorney
handled the matter without objection to service. Indeed, Hachenberger has never objected in
the past to service of process accepted by Manning on his behalf.11 However, he doubts that
Manning actually knew he was accepting service of process before the instant case. In any
event, Manning has access to his home when he is not home and he accepts packages and
deliveries for Defendant as Manning testified.
In the matter of the account at Fifth Third Bank, Defendant and his wife formed K2
Evolution LLC, in 2004. It was subsequently sold to Ms. Katharine Wertz. The business’s
Fifth Third bank account was initially opened in Ms. Wertz’s name when she bought the
business. The Defendant’s name was added on the account at some point later. Defendant
10
Manning testified that when a process server attempted to give him suit papers in
connection with Hachenberger’s divorce case, he was hesitant to accept them. He called
Defendant on the telephone, who advised Manning that he could accept the divorce papers on
his behalf.
11
In further proof, Plaintiff offers certain exhibits of service of process in other
litigation where service was not contested. See (Docs. 62-3, 62-4, 62-5).
9
denies depositing funds into the account, but acknowledges that companies he owns may have
made payments into the account for services rendered by K2 Evolution.
Katharine Wertz testified that she is the sole owner of K2 Evolution which she
purchased for an unknown price in January 2007 from Don and Glenda Hachenberger.
Defendant is not an employee, owner, or manager of K2 Evolution. As of January 2011,
approximately one hundred sixty thousand dollars was owed to the company for the prior five
years of services rendered by K2 Evolution to Defendant’s companies, Highway 46 Holdings,
L.L.C. and Route 46 Entertainment. Although K2 Evolution is the owner of the bank account,
the company name is not listed on the account; only Ms. Wertz and Defendant are listed on
the account and both have access to the checkbook for the account. Upon questioning by the
court, Ms. Wertz confirmed that Defendant had the authority to write himself a check for one
hundred thousand dollars from the account.
B.
Because Florida law dictates the court strictly construe the provisions of Section
48.031(1)(a), and by such construction, service of process on Defendant in the Connecticut
litigation was not properly effectuated under Florida and thus federal law, the Defendant’s
motions are properly granted. As to Plaintiff’s first argument that Mr. Manning is a “coresident” of Defendant such that substitute service was properly effected by serving Mr.
Manning, Florida law’s requirement of strict compliance with service of process statutes
dictates a different result. See Shurman, 795 So. 2d at 954; see also Hernandez v. State Farm
Mut. Auto. Ins. Co., 32 So. 3d 695, 698 (Fla. Dist. Ct. App. 2010) (“Because the statute
allowing substituted service is an exception to the general rule requiring a defendant to be
10
personally served, there must be strict compliance with the statutory requirements so as to
protect due process guarantees.”). Florida courts have held, “[e]ssential to substituted service
. . . is the fact that the person actually served must be residing in the house of the person to be
served.” Hovarth v. Aetna Life Ins. Co., 634 So. 2d 240 (Fla. Dist. Ct. App. 1994) (citing
Gamboa v. Jones, 455 So. 2d 613 (Fla. Dist. Ct. App. 1984); Hauser v. Schiff, 341 So. 2d 531
(Fla. Dist. Ct. App. 1977)) (emphasis in original). It is undisputed that Mr. Manning,
although residing within this residential compound owned by Defendant, does not and has
never resided in the same house as the Defendant. Plaintiff attempts to distinguish Hovarth
on the basis that it involved merely a neighbor with a key looking after the defendant’s house
for a short period of time contrasted with Mr. Manning who is a long-term employee12 who
has been accepting mail and visitors for Defendant for a decade, who lives on the same
property as the Defendant, and the structure in which he lives is owned by Defendant.
Notwithstanding Plaintiff’s arguments, the court finds the Hovarth case on point and
persuasive.13
In Hovarth, the individual served was not just a neighbor, but the defendant’s son-inlaw, who lived directly next door, had full access to Hovarth’s house, and who was clearly
12
Mr. Manning’s status as a long-term employee does not impact the outcome where,
as here, the employee does not live with the defendant. See Tamayo v. Caballero, 413 So. 2d
78 (Fla. Dist. Ct. App. 1982) (service on caretaker/gardener who did not live in household of
his employer was not effective substitute service on employer defendant); see also Hauser,
341 So. 2d at 531-32 (in holding that service on defendant’s secretary at his place of business
did not constitute proper substitute service on defendant, court noted, “there is no question
that the person actually served must be residing in [defendant’s] home”).
13
In my view, Hovarth is instructive on both issues of co-resident and implied
authority.
11
authorized and expected by Hovarth to collect his mail during his absence from home.
Hovarth, 634 So. 2d at 240. In the face of a similar argument, the court noted that neither the
proximity of the residences nor the complete access which the son-in-law had to Defendant’s
home was sufficient to overcome the statutory requirement that the person served at
defendant’s “usual place of abode” be a “person residing therein” as mandated by § 48.031(1).
Id. In Hovarth, the defendant even acknowledged having received actual notice of the
proceedings from his 12-year-old grandson, but the court held that service was nevertheless
defective because “attempted service of a relative who is not residing with the party to be
served is insufficient, regardless of the probability that the party to be served will or does learn
of the attempted service.” Id. (citing Bedford Computer Corp. v. Graphic Press, Inc., 484 So.
2d 1225, 1227 (Fla. 1986)).14
Plaintiff alternatively argues that both Florida and federal law authorize the
acceptance of service by one person on behalf of another. Here, Plaintiff urges that Mr.
Manning’s acceptance of process on behalf of Hachenberger in at least three prior lawsuits,
without objection, evidences his implied authority to accept service on behalf of
Hachenberger. Again, given that Florida courts require strict compliance with service of
14
Plaintiff’s response notes that Manning testified he would leave mail, deliveries and
any other such papers, such as service of process, in the hallway outside Hachenberger’s
master bedroom and that he never observed the mail or other papers remaining piled up in the
hallway. Although Hachenberger was not questioned directly at the hearing as to whether he
had actual knowledge of the lawsuit, the inference was he had to have known about it because
the papers were removed from the hallway. Regardless, it appears correct that, in Florida,
actual notice is not enough. See Bedford, supra.; see also Woodworth v. Smith, 773 So. 2d
1170 (Fla. Dist. Ct. App. 2000) (actual notice based on regular mail held insufficient to
properly effectuate service of process pursuant to § 48.161(1), Fla. Stat.).
12
process statutes, Plaintiff’s argument is unavailing. Despite the fact that he has on multiple
occasions accepted suit papers directed to Hachenberger from process servers, Mr. Manning
testified that, apart from one occasion, Hachenberger has never authorized him to accept
service of process, nor has he appointed Manning to be his agent to accept service of process.
It is not entirely clear on this record that Manning understand what “service of process” was.
In any event, Defendant testified as well that he has never appointed Manning as his agent to
accept service of process, nor was Manning designated with the State of Florida as registered
agent for any of Defendant’s companies. Defendant testified that the only time he has ever
waived personal service is when he authorized Manning to accept divorce papers on his behalf
from the process server.
On the issue of waiver, Florida courts have defined waiver as “the intentional
relinquishment of a known right. Absent knowledge, a waiver will not arise.” Anthony v.
Gary J. Rotella & Assocs., 906 So. 2d 1205, 1208 (Fla. Dist. Ct. App. 2005) (quoting
Fireman’s Fund Ins. Co. v. Vogel, 195 So. 2d 20, 24 (Fla. Dist. Ct. App. 1967)). The three
ways in which a defendant may waive his right to be personally served is through an
intentional waiver; an attempt to evade service; or by granting someone authority to accept
process for him. Anthony, 906 So. 2d at 1208. While Florida courts have acknowledged a
defendant’s right to waive personal service, Plaintiff’s reliance on those cases is misplaced to
the extent it argues that the waiver need not be knowing or intentional. Plaintiff cites Pota v.
Holtz, 852 So. 2d 379 (Fla. Dist. Ct. App. 2003), for the proposition that service of process
may be waived in Florida by a defendant permitting another individual to accept service on his
behalf. However, in Pota, the court determined that “Dr. Holtz authorized his attorney to
13
accept personal service and his attorney acknowledged that Dr. Holtz had been personally
served.” Id. at 381. With that factual backdrop, the court concluded that the issue of whether
Florida’s long-arm statute requirements had been met was irrelevant because defendant had
been personally served, noting, “[c]ounsel could not accept personal service and in the same
breath challenge that very service.” Id. While the case supports the proposition that authority
may be granted to another to accept service of process, Holtz expressly so authorized. The
instant facts differ as there was no express authority bestowed on Mr. Manning to accept
service on Hachenberger’s behalf. Similarly, Plaintiff cites Stoeffler v. Castagliola, 629 So.
2d 196 (Fla. Dist. Ct. App. 1993), to support its position that Defendant can grant authority to
another to accept service for him. In Stoeffler, the court determined that service was defective
because “[t]he record [did] not support that [defendant] waived personal service, that he tried
to evade service, nor that he gave anyone authority to accept process for him.” Id. at 197. On
this record, there is no indication that such authority was expressly given to Mr. Manning. To
the contrary, both Mr. Manning and Defendant testified that Manning did not have authority
to accept service of process on behalf of Defendant. Nor is there demonstrative proof that, in
this instance, Defendant sought to evade service. Thus, it follows that there was no knowing,
intentional waiver of personal service by Hachenberger, nor was there an express
authorization for Mr. Manning to accept service of process on his behalf.
In the absence of express authorization, Plaintiff alternatively urges that authority to
accept service of process in Florida may be implied. The evidence of record supports that Mr.
Manning accepts all types of deliveries, including from process servers, on behalf of
Defendant, and further that his acceptance of service of process on behalf of Defendant has
14
not been legally challenged by Defendant in any of those prior cases.15 While this would
appear to be representative of some type of acquiescence or implied authority on Defendant’s
part, the case relied upon by Plaintiff does not provide legal support for this position on the
instant facts.
Plaintiff relies on George Fisher, Ltd. v. Plastiline, Inc., 379 So. 2d 697 (Fla. Dist.
Ct. App. 1980), for the proposition that Florida courts recognize an agent’s implied authority
to accept service of process. In that case, the plaintiff served the defendant Swiss corporation
by substituted service upon the Florida Secretary of State pursuant to Florida’s long-arm
statute and sending via certified mail, return receipt requested, a copy of the process to Mr.
Hans Fry, George Fischer, Ltd., in Southfield, Michigan. Id. at 698. In support of its motion
to quash service of process, defendant George Fischer, Ltd., through an affidavit submitted by
the president of George Fischer Corporation (who was also an employee of George Fischer,
Ltd.) stated that the two entities are separate and distinct; that the Southfield address is where
George Fischer Corporation is located; and that Hans Fry does not maintain an office in the
United States for George Fischer, Ltd., whose principal place of business is in Switzerland. In
affirming the trial court’s denial of defendant’s motion to quash substituted service of process,
the court held that the defendant did not “make even a prima facie showing of failure to mail
notice of service.” Id. at 699.16 Of significance, the defendant in that case was a corporation
15
By Defendant’s testimony, he learned of those other lawsuits through his lawyers and
not through any acceptance of service of process by Mr. Manning.
16
In so holding, the court noted that “the party attacking the service bears a preliminary
burden of establishing (1) that the addressee is not at that address and does not receive mail
there, (2) the employment and duties (if known) of the person who accepted the mail, (3) that
such person had no actual, implied or ostensible authority to accept mail for any addressee
15
and a corporation may only accept process through some individual. See Chapman v.
Sheffield, 750 So. 2d 140, 143 (Fla. Dist. Ct. App. 2000) (distinguishing George Fischer, Ltd.,
supra, on basis that a corporation can only act through its agents and that mail addressed to a
corporation must necessarily be accepted or rejected by some company representative).
While Plaintiff’s argument regarding implied authority makes practical sense, I can
find no support under Florida law based on the present record that permits an implied
authority for acceptance of personal service on behalf of an individual. As noted above, the
Hovarth opinion appears to reject an implied authority theory. In Hovarth, despite the fact
the son-in-law had full access to defendant’s house and was expected to take in the mail and
newspapers while defendant was away, the ruling turned on whether the son-in-law resided in
the same house as defendant. Hovarth, 634 So.2d at 240. The fact that the son-in-law had
full authority to accept all deliveries on behalf of the defendant did not impact the ultimate
outcome that service on this relative who did not live in the same house as the defendant was
insufficient. Based on the evidence adduced at the hearing, I am obliged to conclude that
there was no waiver here.
The federal rule does not provide Plaintiff any different result. Under the plain
language of Fed. R. Civ. P. 4(d)(1), service of process can effectively be made upon an agent.
However, whether or not Manning would be considered an agent under this rule requires a
consideration of the type of authorization required. Specifically, Rule 4(d)(1) permits an
agent to be authorized to accept service “by appointment” or “by law.” On this record,
listed on the envelope in question, and (4) the circumstances under which mail for the
addressee was accepted on the occasion in question.” Id. at 699.
16
Manning has not been appointed by law to accept service on behalf of Hachenberger. And
cases defining what “by appointment” means have required an actual appointment by the
defendant. See, e.g., Franklin Amer., Inc. v. Franklin Cast Prods., Inc., 94 F.R.D. 645, 647
(E.D. Mich. 1982) (“an appointment must be made or authorized by the defendant.”); Szabo v.
Keeshin Motor Express, 10 F.R.D. 275, 276 (N.D. Ohio 1950) (“‘By appointment’ means an
actual appointment by the defendant, and, if such has been made, service upon the agent gives
the court jurisdiction.”); 2 J. MOORE , J. LUCAS, H. FINK, & C. THOMPSON , MOORE 'S FEDERAL
PRACTICE , ¶ 4.12 (2d ed. 1987) (“Where actual appointment to accept service is not shown,
the service is invalid.”). “The rule is clear that it must appear that any agent who accepts
service must be shown to have been authorized to bind his principal by the acceptance of
process and, further, that the authority to accept such service cannot be shown by the
extrajudicial statements of the attorney [agent].” Schwarz v. Thomas, 222 F.2d 305, 308 (D.C.
Cir. 1955); see also First Amer. Bank, N.A. v. United Equity Corp., 89 F.R.D. 81, 84 (D. D.C.
1981) (“The court finds, however, that the clerk was not . . . an authorized agent. While it is
true that the clerk represented herself as such on the receipt, her acceptance of service and her
own statements of authority are, in and of themselves, insufficient to establish the required
agency relationship.”); MOORE, supra, ¶ 4.12 (“The agent's acceptance of service, or his own
statement as to his authority, is insufficient, standing alone, to establish authorization to
receive process.”). Here again, the issue turns on whether the Defendant appointed Mr.
Manning to accept such process on his behalf; and by his testimony, he did not.
17
Because service of process was neither effective under Florida or federal law, the
court need not reach the issue of who owns or controls the money held in the Fifth Third Bank
account.17
IV.
Because I conclude that service of process on Manning did not constitute valid
substitute service of process on Defendant, the Connecticut judgment is void and may not
form the basis for the writs of garnishment herein. Accordingly, upon consideration,
Defendant’s Motion to Dissolve Writ of Garnishment and Memoranda of Law (directed to
Centennial Bank) (Doc. 46); is granted; Defendant’s Motion to Dissolve Writ of
Garnishment and Memoranda of Law (directed to Regions Bank) (Doc. 47) is granted;
Defendant’s Motion to Dissolve Writ of Garnishment and Memoranda of Law (directed to
Fifth Third Bank) (Doc. 98) is granted; and Defendant’s Motion to Dissolve Writ of
Garnishment and Memoranda of Law (directed to First National Bank of Central Florida)
(Doc. 100) is granted.
Done and Ordered in Tampa, Florida, this 19th day of May 2011.
Copies furnished to:
Counsel of Record
17
However it is worth noting that, “[f]or garnishment purposes, funds on deposit in a
financial institution are presumed to belong to the person or entity named on the account.”
Thomas J. Konrad & Assoc., Inc. v. McCoy, 705 So. 2d 948, 949 (Fla. Dist. Ct. App. 1998)
(citing Ginsberg, 404 So. 2d at 1099)). Here, Defendant was named on the account and
clearly had authority over its use.
18
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