         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                  DAVID DAVIDIAN and IRMA DAVIDIAN,
                              Appellants,

                                        v.

    JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, SUCCESSOR
     IN INTEREST BY PURCHASE FROM THE FDIC AS RECEIVER OF
                  WASHINGTON MUTUAL BANK, FA,
                            Appellee.

                                No. 4D14-2431

                               [October 7, 2015]

  Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Eli Breger, Senior Judge, Judge; L.T.
Case No. 502013CA006170XXXXMB.

   Margery E. Golant, Stuart M. Golant, and Richard R. Widell of Golant
& Golant, P.A. (withdrawn as counsel after filing brief), and David Davidian
and Irma Davidian, Boca Raton, pro se.

     William L. Grimsley of McGlinchey Stafford, Jacksonville, for appellee.

PER CURIAM.

    Irma and David Davidian (the Davidians) appeal a trial court order
denying their motion to quash summons and motion to quash service of
process. This is a non-final appeal. Fla. R. App. P. 9.130(a)(3)(C)(i).1 We
affirm, and write to address the issues raised here because this Court has
received numerous other appeals raising the same or similar issues
recently.

                                 Background


1A number of appeals to this court in other foreclosure cases involving challenges
to service of process similar or identical to those raised here have been resolved
by per curiam affirmance without opinion, including: 4D14-3657; 4D14-2805;
4D14-2536; 4D14-1725; 4D14-1335; 4D13-1983; and 4D13-4544.
   In this case, Irma Davidian executed a promissory note in 2007 and
David Davidian joined her in executing a mortgage securing payment of
that note. They allegedly defaulted in payment and appellee JP Morgan
Chase Bank, National Association (the Bank) filed a foreclosure complaint
against them in 2013. Timothy A. Toomey, Certified Process Server,
completed returns of service for both Davidians, stating on those
documents that the summons and complaint, lis pendens, and a notice
from the court regarding foreclosure lawsuits were served on them at 8:30
p.m. on June 25, 2013. He described the Davidians by race, height,
weight, and hair color. At the bottom of the return of service was a
verification stating: “‘Under penalty of perjury, I declare that I have read
the foregoing document and that the facts stated in it are true.’ F.S.
92.525.”

   The Davidians moved to quash the summons and to quash service of
process. The trial court held an evidentiary hearing on the motions which
included legal argument as well. The trial court denied the motions to
quash, resulting in this appeal. The Davidians raise five separate points
on appeal in which they challenge the propriety of service on them.

                            Standard of Review

   To the extent the trial court’s rulings are based on legal issues, review
on appeal is de novo. Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So. 3d
177, 179 (Fla. 3d DCA 2011); Hernandez v. State Farm Mut. Auto. Ins. Co.,
32 So. 3d 695, 698 (Fla. 4th DCA 2010). Review of trial court rulings on
the admission of evidence calls for a determination of whether the court
abused its discretion. Clark Well Drilling, Inc. v. N.-S. Supply, Inc., 44 So.
3d 149, 151 (Fla. 4th DCA 2010). The reviewing court will defer to the
factual findings of the court if supported by substantial, competent
evidence. Diwakar v. Montecito Palm Beach Condo. Ass’n, 143 So. 3d 958,
962 (Fla. 4th DCA 2014).

         The burden of proving proper service of process falls upon
      the party invoking the court’s jurisdiction, and the return of
      service is evidence of whether service was validly made. If the
      return is regular on its face, then the service of process is
      presumed to be valid and the party challenging service has
      the burden of overcoming that presumption by clear and
      convincing evidence.

Bank of Am., N.A. v. Bornstein, 39 So. 3d 500, 503 (Fla. 4th DCA 2010)
(quoting Re-Employment Servs., Ltd v. Nat’l Loan Acquisitions Co., 969 So.
2d 467, 471 (Fla. 5th DCA 2007)). Statutes governing service must be

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strictly construed. Id. at 502.

                                  Analysis

   The Davidians first argue that the returns of service were hearsay,
defined as a “statement, other than one made by the declarant while
testifying at the trial or hearing, offered into evidence to prove the truth of
the matter asserted.” § 90.801(1), Fla. Stat. (2015). The trial court
properly rejected this challenge. The exception to hearsay for public
records applies to the returns of service here. See Cordova v. State, 675
So. 2d 632, 637 (Fla. 3d DCA 1996) (holding that a return of service was
hearsay but admissible under the public records exception in section
90.803(8), Florida Statutes).

   The Bank also contends that the returns of service were admissible on
the alternative ground that they qualified under the exception to the
hearsay rule for records of regularly conducted business activity. §
90.803(6)(a), Fla. Stat. (2015). At the evidentiary hearing, Toomey
supplied the testimony required to demonstrate the elements of this
exception to hearsay. He testified that the returns of service were based
on his field notes on his actual service efforts. He said it was the regular
practice of the office staff where he worked to generate the affidavit and
return of service, made in the ordinary course of business. Therefore, the
court below properly rejected that claim.

   The Davidians’ second claim is that no evidence was presented to
demonstrate that the returns of service complied with section 48.21(1),
Florida Statutes (2015), which provides:

      Each person who effects service of process shall note on a
      return-of-service form attached thereto, the date and time
      when it comes to hand, the date and time when it is served,
      the manner of service, the name of the person on whom it was
      served and, if the person is served in a representative capacity,
      the position occupied by the person. The return-of-service
      form must be signed by the person who effects the service of
      process. However, a person employed by a sheriff who effects
      the service of process may sign the return-of-service form
      using an electronic signature certified by the sheriff.

   The return of service documents for the Davidians were in full
compliance with this statute, stating the date and time the documents
came to the server, when he served it, the manner of service and on whom
service was made. To the extent the Davidians claimed lack of evidence of

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compliance with section 48.031(5), Florida Statutes (2015), the record
refuted this as well. This section required the process server to place, on
the first page of at least one of the processes served, the date and time of
service, his identification and initials. This appeared in the summonses
for the Davidians.

    The Davidians’ third argument was that there was no evidence that the
returns of service were regular on their face. Florida law provides that a
return of service that is regular on its face is presumptively valid unless
clear and convincing evidence is presented to the contrary. Bornstein, 39
So. 3d at 503 (quoting Re-Employment Servs., 969 So. 2d at 470). In this
case, the returns of service were regular on their face. They contained the
information statutorily required. They were shown to comply with section
48.031 and 48.21, Florida Statutes (2015). Thus, the burden shifted to
the Davidians to present clear and convincing evidence to the trial court
to overcome the presumption of proper service. The trial court did not err
to the extent it recognized this shifting of burden.

   The Davidians’ reliance on Romeo v. U.S. Bank National Ass’n, 144 So.
3d 585 (Fla. 4th DCA 2014), is misplaced. The affidavits of service in that
case were inaccurate in several respects and thus not regular on their face.

   This leads to the Davidians’ fourth argument, that service was defeated
by Irma’s affidavit and testimony that she was not present for service by
Toomey. However, the returns of service provided to the contrary, and
Toomey testified that the returns were accurate. They provided that both
Davidians were individually and personally served. This presented a
factual issue for the trial court to determine, including an issue of
credibility of witnesses. Ordinarily such determinations are not disturbed
on appeal. See Diaz v. State, 132 So. 3d 93, 121 (Fla. 2013).

   Finally, the Davidians argued that the process server failed to comply
with section 48.031(1)(a), Florida Statutes (2015), because he failed to
inform them of the contents of the papers he was serving on them. David
Davidian testified to this at the evidentiary hearing. Section 48.031(1)(a)
provides:

      Service of original process is made by delivering a copy of it to
      the person to be served with a copy of the complaint, petition,
      or other initial pleading or paper or by leaving the copies at
      his or her usual place of abode with any person residing
      therein who is 15 years of age or older and informing the
      person of their contents. Minors who are or have been
      married shall be served as provided in this section.

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The Bank argues that the statute requires the server to inform the person
of the contents only if delivery is made by substitute service, and there is
no such requirement if service is made by delivery of a copy to the person
to be served. Support for this construction appears in one case issued
well before this statute, Barwick v. Rouse, 43 So. 753, 753 (Fla. 1907)
(holding that “when another than the defendant himself is served, the law
is not satisfied by merely delivering a true copy of the writ. It is further
required that such other person be informed of the contents thereof”), and
in another decided under the statute, Vidal v. Sun Trust Bank, 41 So. 3d
401, 403 (Fla. 4th DCA 2010) (noting that when a defendant is not
personally served, “the statute requires that the process server orally
inform the person who receives service of the contents of the complaint.
These requirements ensure that notice is conveyed to the defendant.”).

   Moreover, the Bank pointed out that the returns of service provided
that Toomey served the Davidians and informed them of the contents of
the papers being served. Toomey further testified at the evidentiary
hearing that while he could not remember this particular case, his general
practice was to do so. We therefore find the Davidians’ final argument
without merit.

                               Conclusion

   The trial court’s decision to deny the Davidians’ motion to quash
summons and service of process was appropriate and supported by the
pertinent statutory provisions and case law. Accordingly, we affirm.

   Affirmed.

GROSS, LEVINE and FORST, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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