## Facts

- Road Legends, Inc. and Kenneth Smalheiser sued Fern Limited in Florida state court and served the original complaint on an individual Fern claimed was not authorized to accept service for Fern.
- Fern moved to dismiss the original complaint for lack of personal jurisdiction and insufficient service of process and sought to quash service.
- Fern supported its challenge with an affidavit from the person who was served, stating facts that, if proven, would show she was not a person qualified to accept service of process for Fern under Florida law.
- After receiving Fern’s motion, the plaintiffs filed an amended complaint and properly served Fern through Florida’s Secretary of State, Fern’s registered agent for service of process.
- Even though the later service appeared to resolve service and jurisdiction going forward, Fern argued that defective service of the original complaint meant orders entered before valid service of the amended complaint were invalid as to Fern.
- At the hearing, plaintiffs’ counsel argued that Fern’s prior counsel had directed service to the person and address where service was made; Fern’s current counsel did not dispute that assertion during argument.
- The trial court denied Fern’s motion to quash (and motion to dismiss the original complaint) without conducting an evidentiary hearing.
- Fern took a nonfinal appeal to the Fourth District Court of Appeal.

## Issues

1. Whether the trial court may deny a motion to quash service of process without an evidentiary hearing when the defendant supports the motion with an affidavit alleging facts that, if proven by clear and convincing evidence, would show service was not made on a person authorized to accept service under § 48.031, Florida Statutes.
2. Whether later valid service on the Secretary of State eliminates the need to conduct an evidentiary hearing on the validity of earlier service when the defendant claims earlier orders are invalid due to lack of proper service.

## Decision

- The Fourth District Court of Appeal reversed the order denying Fern’s motion to dismiss/motion to quash as to the original complaint.
- The court held that the plaintiffs could not defeat Fern’s affidavit-based challenge to service through counsel’s argument alone, and an evidentiary hearing was required.
- The court remanded for an evidentiary hearing on the sufficiency of service of process on the original complaint and for any further proceedings needed.

## Legal Principles

- When a motion to quash service of process is supported by sworn allegations that, if proven by clear and convincing evidence, would establish noncompliance with Florida’s service statute, the movant is entitled to an evidentiary hearing.
- Argument of counsel is not evidence and is not a substitute for an evidentiary hearing on contested service facts.
- The submission of affidavits, by itself, does not constitute an evidentiary hearing; disputed service facts must be resolved through testimony or other admissible evidence.
- Even if later service appears to cure service and jurisdiction going forward, a defendant may still be entitled to a hearing on earlier service where the validity of earlier orders depends on whether the court had personal jurisdiction at the time those orders were entered.

## Conclusion

The appellate court reversed and remanded because Fern presented affidavit-based allegations that, if proven, would show the original service was invalid, and the trial court could not reject that challenge without an evidentiary hearing; later service on the Secretary of State did not eliminate the need to determine whether the original complaint was properly served for purposes of earlier orders.


Fern Limited v. Road Legends, Inc., 698 So. 2d 364 (1997)