## Facts

- Charles and Marcia Brucato sued Allan Emmer in Seminole County, Florida.
- A deputy sheriff’s return of service stated Emmer was personally served with the summons and complaint at his Michigan residence on October 26, 2000.
- Emmer did not file a responsive pleading.
- After the Brucatos moved for entry of default in late December 2000, Emmer (through Michigan counsel) requested copies of the pleadings; plaintiffs’ counsel mailed them, but Michigan counsel testified the mailing was not received.
- The trial court entered a default on January 16, 2001, and later entered a final default judgment.
- On February 5, 2001, Emmer (through Florida counsel) moved to vacate the default judgment under Florida Rule of Civil Procedure 1.540(b), asserting excusable neglect, a meritorious defense, and lack of personal jurisdiction due to non-service.
- On April 16, 2001, Emmer also moved to dismiss for lack of personal jurisdiction.
- The trial court denied both motions; Emmer appealed.

## Issues

1. Whether the trial court grossly abused its discretion by denying relief from the default judgment under Rule 1.540(b) for failure to show excusable neglect, a meritorious defense, and reasonable diligence.
2. Whether the default judgment was void for lack of personal jurisdiction because Emmer was allegedly not served with process.

## Decision

- The appellate court affirmed the orders denying Emmer’s motion to vacate the default final judgment and his motion to dismiss.
- The court held there was no gross abuse of discretion because Emmer failed to establish excusable neglect, a meritorious defense, and reasonable diligence.
- The court upheld the trial court’s factual finding that Emmer was served, concluding the record contained competent, substantial evidence and Emmer did not rebut the presumption of validity attached to a facially regular return of service.

## Legal Principles

- Denial of a motion to set aside a default judgment is reviewed for gross abuse of discretion.
- To obtain relief from a default judgment under Florida Rule of Civil Procedure 1.540(b), the movant must show: (1) excusable neglect, (2) a meritorious defense, and (3) reasonable diligence after learning of the default.
- The party invoking the court’s jurisdiction bears the burden to prove valid service, but a return of service that is regular on its face is presumed valid.
- A defendant seeking to invalidate service must rebut the presumption of validity with clear and convincing evidence; a bare denial of service is insufficient and must be corroborated.
- Whether the presumption of valid service has been overcome is a factual question for the trial court; an appellate court defers if supported by competent, substantial evidence.

## Conclusion

The court affirmed the default judgment because Emmer did not satisfy the requirements for Rule 1.540(b) relief and did not produce clear and convincing evidence to overcome the presumed validity of the facially regular return of service establishing personal jurisdiction.


Emmer v. Brucato, 813 So. 2d 264 (Fla. Dist. Ct. App. 5th Dist. 2002)