## Facts

- Richard Stebnicki was injured in an automobile accident involving a car driven by Samuel Wolfson and owned by RD&G Leasing, Inc. (RD&G).
- Stebnicki filed a Florida personal-injury lawsuit against Wolfson and RD&G.
- Within 120 days after the complaint was filed, Wolfson and RD&G were personally served in their respective home states.
- The process servers completed returns (affidavits) of service, but the returns were not filed in the Florida trial court record.
- Wolfson and RD&G moved to quash service of process, alleging they had not been served within 120 days of the filing of the complaint.
- A hearing on the motion to quash occurred without Stebnicki’s attendance; Stebnicki later asserted he did not receive notice of that hearing.
- After the hearing, the trial court entered an ex parte order dismissing the action for failure to accomplish timely service under the 120-day service rule.
- Stebnicki later learned the returns of service had not been filed and moved to set aside the ex parte dismissal, submitting the completed returns to show timely service.
- At the hearing on Stebnicki’s motion, the trial court refused to accept the returns because they were not already in the court file and had not been provided to Wolfson or RD&G for review.
- The trial court denied the motion to set aside the dismissal, and Stebnicki appealed.

## Issues

1. Whether the trial court abused its discretion by refusing to admit the completed returns of service offered on Stebnicki’s motion to set aside an ex parte dismissal for untimely service.
2. Whether it was error to deny relief from the dismissal when Stebnicki sought to prove, through the returns of service, that service had actually been made within the 120-day period.

## Decision

- The Third District Court of Appeal reversed the order denying Stebnicki’s motion to set aside the ex parte dismissal and remanded.
- The appellate court held the trial court abused its discretion by refusing to admit the returns of service at the hearing on the motion to set aside.
- Because a return of service is the standard means of making an initial showing of valid service, excluding the returns improperly prevented Stebnicki from presenting proof that service was timely.

## Legal Principles

- A duly executed return of service constitutes prima facie evidence of valid service of process; once introduced, the burden shifts to the defendant to challenge the return.
- A trial court abuses its discretion when it refuses to admit competent evidence central to a party’s ability to meet the party’s initial burden on a contested procedural question such as service.
- A dismissal under the 120-day service rule should not be sustained where the plaintiff seeks relief from dismissal by presenting competent proof that service was in fact completed within the required time.
- When an action has been dismissed ex parte for alleged untimely service, the plaintiff must be given a fair opportunity to present evidence on a motion seeking to set the dismissal aside.

## Conclusion

The Third District reversed and remanded because the trial court’s refusal to accept the process servers’ returns of service at the hearing on Stebnicki’s motion to set aside an ex parte dismissal prevented him from making the prima facie showing of timely, valid service necessary to challenge a dismissal based on the 120-day service requirement.


Stebnicki v. Wolfson, 584 So. 2d 177 (1991)