You Didn’t Get Served – Mattress One v. Sunshop Properties

You Didn’t Get Served – Mattress One v. Sunshop Properties

I’m sure you all remember the 2004 smash hit and box office success, You Got Served. The film’s depth of plot is rivaled only by its extravagant choreography and magnificent soundtrack. Aside from its Oscar-worthy qualities, this film will stand, for eternity, as a cautionary tale of why one should never work for a drug lord that goes by the name of Emerald. Essentially, if you study the film closely, you will learn valuable life lessons on how not to get served.

Now let’s fast forward to November of 2019 when we find ourselves fortunate enough for another lesson on not getting served. This time our lesson is served delivered within the context of not being served with a non-residential eviction lawsuit. The underlying facts were that Mattress One, Inc. was a tenant under a commercial lease agreement with Sunshop Properties, LLC. Sunshop filed for eviction against Mattress One and served the summons and complaint at Mattress One’s designated principal place of business, which was also the same address designated for its registered agent for service of process.

Florida Statutes Section 48.091(2) requires registered agents for corporations to be present for service of process between 10 a.m. and 12 noon each day, except for Saturdays, Sundays, and legal holidays. In this case, although the service of process was made at 10:59 a.m., which was within the statutorily-required window, Mattress One’s registered agent was not present. The return of service reflects that the process server gave the summons and complaint to an unknown employee of Mattress One, identified only as “Drew Doe (refused to provide full name).” Mr. Doe apparently did not notify any of his bedfellows up Matress One’s chain of command, and default judgments were eventually entered against Mattress One for the breach of lease and eviction counts. Mattress One finally became aware of the proceedings when its funds were seized pursuant to a writ of garnishment.

Not one to take it lying down, Mattress One, Inc. filed an emergency motion to set aside the default judgments and to quash (not squash) the writ of garnishment. The trial court denied Mattress One’s motion and Mattress One appealed. In its analysis, the Third DCA observed that Florida law requires strict compliance with all the statutory requirements for service of process. To perfect service on a corporation, Florida Statutes Section 48.081(1) requires process be served on specified officers of the corporation, or, in their absence, on any officer or business agent. Specifically, the DCA observed,

[t]o bind a corporation for jurisdictional purposes, a return of service must show the absence of all officers of a superior class designated in the statute before service can be obtained by serving an officer or agent of an inferior class. If this requirement is not met, a court’s jurisdiction is not perfected, and any judgment entered is void. As an alternative to any of these, service may be perfected on the registered agent designated by the corporation to accept service of process.

In this case, service was not made on Mattress One’s officers, and the return of service did not reflect the absence of all officers prior to resorting to service on an officer or agent of an inferior class. The return of service also failed to reflect service upon Mattress One’s registered agent. Finally, the Third DCA observed that “although the registered agent was not present on the corporate premises when he or she was required to be under section 48.091, the return of service does not indicate that service of process was proper based on the absence of the registered agent. Instead, the attempted service was made on an unidentified, random employee.”

Florida’s Third District Court of Appeals reversed the trial court’s order, remanding the matter with instructions to quash the service of process as void, to set aside the default judgments, and to quash the writ of garnishment.

The appellate decision referenced in this blog post is Mattress One, Inc. v. Sunshop Properties, LLC, Case No. 3D19-0307 (Fla. 3d DCA 2019).

And for those of you wondering, yes, the long-awaited sequel to You Got Served is finally on the way.

Commercial Landlords in Florida: Self Help is Not Allowed, Even if Lease Says So

If you are a commercial landlord in Florida, your written commercial lease agreement likely contains a provision stating something to the effect that, if your tenant is in default and has not timely cured such default, then you may terminate the tenancy, and be entitled to immediate possession of the premises. In enforcing such a provision, a landlord might, as an example, change the locks on the building, thereby depriving the tenant of access to the property. Such a remedy is sometimes referred to as a “self help” remedy.

While some states in our great nation may allow for such self help remedies, Florida is not one of them. As a 2016 case[note]Palm Beach Fla. Hotel v. Nantucket Enterprises, Inc., 211 So. 3d 42 (Fla. 4th DCA 2016).[/note] from Florida’s Fourth District Court of Appeals illustrates, engaging in self help may expose a landlord to liability for a wrongful eviction claim filed by the tenant. In the referenced case, the facts played out much like the scenario outlined above; the lease contained a provision[note]The lease provision read: “[I]f and whenever any Event of Default by Tenant shall occur, Landlord may after the continued Tenant default after the expiration of the time to cure … at its option and without further written notice to Tenant, in addition to all other remedies given hereunder or by law or equity, do any one or more of the following: (i) terminate the Lease, in which event Tenant shall immediately surrender possession of the Leased Premises to Landlord; (ii) enter upon and take possession of the Leased Premises and expel or remove Tenant and any other occupant therefrom with or without having terminated the lease…. Landlord shall not be deemed to have violated any right of Tenant and shall not be deemed to be guilty of trespass, conversion or any other criminal or civil action as a result of such action.”[/note] allowing for the landlord’s unilateral termination, the tenant defaulted under the agreement, and the landlord chained and locked the doors to the building. Adding insult to injury, several days after the chains and locks were put in place, the landlord had police escort the tenant’s employees from the building. Affirmed on appeal was a judgment against the landlord in the amount of $8.8 million for wrongfully evicting the tenant. In its analysis, the appellate court cited Florida Statutes, ยง 83.20, stating that the “only” conditions entitling a landlord to obtain possession of its leased premises are: 1) by court order granting a landlord possession; 2) when the tenant surrenders the premises to the landlord; or 3) when the tenant abandons the leasehold. As none of those situations occurred, “Landlord was not entitled to use self-help even though it was authorized by the terms of the parties’ lease.” Therefore, when faced with a tenant’s default, the wise landlord’s first call would be placed not to a locksmith, but to a Florida attorney, to follow the judicial eviction procedures outlined in the Florida nonresidential landlord and tenant act.