Torres v. Arnco Construction, Inc.

Arnco Construction, Inc. (Arnco) (defendant) entered into a construction contract in Florida with Javier Torres (plaintiff), a New York resident. Subsequently, Arnco filed a breach-of-contract action against Javier. Arnco’s New York process-server made multiple unsuccessful attempts to serve process on Javier at his New York City apartment. In an affidavit-of-service, the New York process-server stated that Javier’s neighbors verified Javier lived in that apartment but that Javier travelled frequently and spent significant time in Florida with his mother, Gregoria Torres. After several unsuccessful service attempts in New York, Arnco engaged a Florida process-server to effect service-of-process on Javier via substituted-service on Gregoria. Upon being served, Gregoria assured the Florida process-server that Javier would be home soon and that she would ensure Javier got the papers. After several months with no response from Javier, the trial court issued a default-judgment against Javier. After learning about the default-judgment from Gregoria’s attorney, Javier moved to vacate the default-judgment, arguing that the Florida court did not have jurisdiction over him because (1) he never received service-of-process; and (2) the substituted-service effected on Gregoria in Florida was invalid because Gregoria’s Florida home was not Javier’s usual place of abode. The trial court conducted a hearing on the motion-to-vacate; however, the hearing was not an evidentiary hearing because the court did not permit the introduction of live testimony or additional evidence. The trial court denied Javier’s motion to vacate. Javier appealed.