Smith v. Smith
The trial court quashed facially valid service and dismissed the case under rule 1.070(j) based on an unverified motion supported only by a hearsay HR letter stating the defendant had left her VA job before service. The Third DCA reversed, holding that a facially valid return of service is presumed valid and can be overcome only by clear and convincing evidence — which requires, at minimum, a sworn affidavit from the defendant and admissible evidence, not argument or attached hearsay. The court also reiterated that service perfected after 120 days but before dismissal is effective because dismissal under rule 1.070(j) is not self-executing.
Key facts
- Plaintiff Smith sued defendant Smith; the trial court quashed service of process and dismissed the case under rule 1.070(j) based on an unverified motion containing only a hearsay HR letter stating defendant had left her job before service.
- Defendant did not file an affidavit or sworn testimony denying service; the motion to quash relied solely on counsel's argument and the attached hearsay letter.
- +2 more key facts with a free trial
Why it matters
A useful, citable synthesis for litigators defending or attacking service: it makes clear that a movant to quash must submit a personal-knowledge affidavit and admissible evidence, and that an HR letter or counsel's… — full analysis with a trial
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