Positive Outcome: Motion to Vacate Dismissal Granted – Lee County, FL
Gilbert Garcia Group litigation attorney Joseph Dayan successful in having dismissal reversed for our client after an evidentiary hearing on a borrower’s evasion of service.
Defendant’s residence was fenced in and surrounded by several large, menacing dogs. Defendant evaded service by failing to respond to the server’s efforts to reach him by honking and by follow up phone calls. The process server completed an affidavit of evading service in order to publish, but publication was not completed prior to the judge’s deadline for completion of service, and the judge dismissed the case without prejudice.
Gilbert Garcia Group and attorney Joe Dayan filed a motion for reconsideration which argued that the Defendant had evaded service and cited relevant case law, in particular the case of Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), a Florida Supreme Court case which requires a court to review six factors prior to dismissing a case. Joe presented compelling evidence, including returns of non-service for the defendant, due and diligent search affidavit, as well as the judge’s order granting an extension for service and record audit logs. Both the process server and firm legal assistant testified about due diligent and calendaring efforts. The defense failed to present any witnesses or evidence and simply argued there was no excusable neglect.
The judge recognized that delays in the case were a result of the defendant’s evasion of process, and that under Kozel factors, determined that the dismissal be reversed and the defendant be considered served.
Joe is a highly experienced litigator, skilled in trials, motion practice, legal writing, alternative dispute resolution, foreclosures, business law, estate planning, real estate transactions, and criminal defense. Contact Joseph: https://www.gilbertgrouplaw.com/joseph-dayan/
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