ROKEACH v. GLICKSTEIN (1998)

This non-final appeal arises out of an “order denying a motion to vacate default and for relief from final judgment, and to quash service of process.”

The record supports the trial court's finding that Alexander Glickstein effected valid service of process on Melvin Rokeach, and that Mr. Rokeach failed to demonstrate excusable neglect in support of his motion to vacate default and for relief from final judgment.

As to Susan Rokeach, service was sufficient under section 48.031(1)(a), Florida Statutes (1997).   On appeal, the facts should be viewed in the light most favorable to sustaining the trial court's order.   Before February 19, the process server had made two attempts to serve the Rokeachs at their home.   On the day of service, the process server went to the home at 6:19 a.m.   He rang the doorbell and no one answered.   Susan Rokeach was in the house at the time.   He returned to his car, parked on the street in front of the house and waited.   At 8:10 a.m., a car emerged from the driveway of the house.   Melvin Rokeach was the driver.   The process server stood in its path as it turned onto the street.   After a conversation with the driver in which he identified himself and described the summons and complaint, the process server placed the suit papers against the window of the automobile, holding them there for four or five seconds before the driver pulled away.   At this time, the process server was eight to ten feet from the residence.   The entire episode took from two to five minutes.

Under these circumstances, process was delivered “at” Susan Rokeach's “usual place of abode” to a person residing therein.   The eight to ten foot distance from the location of service to the Rokeach residence distinguishes this case from Ward v. Gibson, 349 So.2d 173 (Fla. 3d DCA 1976), where service was made on the defendant's roommate in a parking space in the garage of the defendant's apartment complex.

AFFIRMED.

I concur with the majority in its affirmance of the trial court's order denying Melvin Rokeach's motion to vacate default and for relief from final judgment.   I would reverse and quash the service of process on Susan Rokeach on the authority of Ward v. Gibson, 349 So.2d 173 (Fla. 3d DCA 1976).   In my view, the majority has failed to distinguish the facts in Ward from those relied upon as the basis for service of process on Mrs. Rokeach.

PER CURIAM.

GUNTHER and GROSS, JJ., concur. DELL, J., concurs in part and dissents in part with opinion.