Background
Aegis Security Insurance Company sued Kambiz Zadeh and other defendants to enforce an indemnification agreement relating to a surety bond. After three unsuccessful attempts to serve Zadeh at different addresses, Aegis obtained permission to use substituted service through the Florida Secretary of State. One return of non-service showed that a housekeeper confirmed Zadeh lived at the address but said he was traveling and his return date was unknown.
After Zadeh failed to answer, the circuit court entered a default final judgment. Zadeh learned of the judgment several years later and filed an informal, unsworn pro se motion asserting that he had never been served. After that motion was denied, counsel filed a motion seeking relief from the judgment as void and requesting that service be quashed. The trial court denied relief, concluding in part that it lacked jurisdiction to consider a successive motion.
The Court’s Holding
The Third District held that the default judgment was void because Aegis did not strictly comply with Florida’s substituted-service requirements. Section 48.161(1), Florida Statutes (2021), required Aegis to file an affidavit of compliance, and Aegis conceded that it had not done so. Because service was therefore defective, the trial court lacked discretion to leave the default judgment in place.
The court also rejected the argument that Zadeh’s counseled motion was barred as a successive motion under Florida Rule of Civil Procedure 1.540. His earlier pro se filing neither invoked rule 1.540 nor addressed compliance with the substituted-service statute, and the order denying it did not show that the jurisdictional issue had been litigated and decided. The court reversed and remanded with instructions to grant the second motion, vacate the judgment against Zadeh, and quash service.
Key Takeaways
- A default judgment based on improper service is void and must be vacated.
- A plaintiff using substituted service must strictly comply with the governing statutes, including the requirement to file an affidavit of compliance.
- An earlier informal pro se motion does not bar a later rule 1.540 motion when the jurisdictional issue was not actually litigated and decided.
Why It Matters
The decision underscores that substituted service is an exception to personal service and requires strict statutory compliance. Evidence suggesting that a defendant lived at an address or may have been avoiding service does not excuse failure to complete a mandatory statutory step.
It also limits the preclusive effect of prior postjudgment motions: courts must determine whether the same jurisdictional ground was actually raised and decided before treating a later motion as barred.