DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GREG HOWARD,

Appellant,

v.

DAVID GUALT,

Appellee.

No. 4D18-1451

[October 31, 2018]

Appeal of non-final order from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Raag Singhal, Judge; L.T. Case No. 

CACE13-025083 (21).

Matthew R. Simring, Lauderdale By The Sea, for appellant.

Glenn J. Webber, Stuart, for appellee.

MAY, J.

A guarantor appeals a non-final order denying his verified motion to 

vacate a default judgment in an underlying mortgage foreclosure action. 

He argues the trial court erred in denying the motion because he acted 

with due diligence in moving to set aside the default and has meritorious 

defenses, while the plaintiff failed to exercise due diligence to personally 

serve him. We agree and reverse.

The plaintiff sued for breach of a guarantee related to a mortgage note

issued to a corporation. The guarantor signed the note in his capacity as 

the corporation’s managing member and as an individual. In 2013, a

summons was issued to 2000 Banks Road, Margate, Florida, 33063, the 

corporation’s address. The plaintiff did not personally serve the guarantor, 

but did make two other attempts at service after utilizing Sunbiz.org to 

find businesses with which the guarantor was affiliated.

Plaintiff’s counsel filed an “affidavit in support of service by

publication,” stating that a diligent search and inquiry had been made to 

locate the guarantor’s residence. Following court-ordered approval, the 

plaintiff then published notice of the action in the Sun-Sentinel. 
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The plaintiff filed an amended motion for entry of default final 

judgment. The trial court entered the default final judgment in the 

principal amount on June 21, 2016. On April 20, 2017, the guarantor 

filed a verified motion to vacate default final judgment, asserting that he 

first became aware of the lawsuit when a process server came to his house 

on April 1, 2017 to serve him with a “subpoena for deposition in aid of 

execution of the default final judgment.” 

He alleged the plaintiff failed to conduct a diligent search to personally 

serve him. He argued that he did not attempt to conceal his whereabouts 

and has lived in Florida his entire adult life. The plaintiff responded to the 

motion, listing the three attempts made to serve him.

At the hearing on the motion, the trial court noted the preference to 

resolve cases on the merits and that the plaintiff was able to serve the 

guarantor in 2017 for a deposition. The guarantor indicated that he was 

living at a different address in 2013. The plaintiff responded that under 

public records, the guarantor’s prior address did not show up. 

The trial court denied the motion to set aside, finding the “[p]laintiff 

made attempts to serve the guarantor at three separate addresses”, and 

ultimately served the guarantor by publication based on a trial court’s 

order. From this order, the guarantor appeals.

We review such orders for an abuse of discretion. See SunTrust Bank 

v. Puleo, 76 So. 3d 1037, 1038 (Fla. 4th DCA 2011). When there is a 

challenge to constructive service, “the trial court has the duty of 

determining not only if the affidavit of diligent search is legally sufficient 

but also whether the plaintiff conducted an adequate search to locate the 

defendants.” Giron v. Ugly Mortg., Inc., 935 So. 2d 580, 582 (Fla. 3d DCA 

2006).

The guarantor argues the trial court erred in denying the motion to 

vacate the default judgment because the plaintiff failed to conduct a 

diligent search to locate him. The guarantor maintains that the plaintiff’s 

use of a Sunbiz.org search was not a reasonably diligent effort. Finally,

the guarantor argues that he has meritorious defenses to the action and 

exercised due diligence in moving to vacate the default judgment. 

The plaintiff responds that he conducted a diligent search, and the trial 

court’s order denying the motion to vacate is supported by competent 

substantial evidence. 

Substitute service is unauthorized if personal service could be obtained 
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through reasonable diligence. The test is “whether the complainant 

reasonably employed knowledge at his command, made diligent inquiry, 

and exerted an honest and conscientious effort appropriate to the 

circumstances, to acquire the information necessary to enable him to 

effect personal service on the defendant.” Green Emerald Homes, LLC v. 

Bank of N.Y. Mellon, 204 So. 3d 512, 514 (Fla. 4th DCA 2016) (citations 

omitted); Fla. Stat. § 49.021 (2014).

The plaintiff’s affidavit of diligent search provided:

A diligent search and inquiry has been made to locate the 

residence of [the guarantor] . . . despite our diligent search 

and inquiry, attempts to locate [the guarantor] have been 

unsuccessful. The current address of [the guarantor] is 

unknown to the affiant. On information and belief [the 

guarantor] is concealing his whereabouts so that process 

cannot be personally served and I believe there is no person 

in Florida upon whom service of process would bind [the 

guarantor].

The affidavit appears legally sufficient, despite being conclusory, 

because it need only allege that a diligent search and inquiry was made.

See Floyd v. Fed. Nat’l Mortg. Ass’n, 704 So. 2d 1110, 1112 (Fla. 5th DCA 

1998). However, the underlying facts must show that “the complainant 

reasonably employed the knowledge at his command, made diligent 

inquiry and exerted an honest and conscientious effort appropriate to the 

circumstance to acquire the information necessary to enable him to effect 

personal service on the defendant.” Green Emerald Homes, LLC, 204 So. 

3d at 514.

Here, the plaintiff maintained that the guarantor’s business addresses 

remained the same and he was listed as the registered agent, but the 

address listed in the guarantor’s motion did not show up at the property 

appraiser’s office because he was only a tenant. Plaintiff’s counsel argued 

that his client hired an investigator who could not find the guarantor.

The guarantor responds that the plaintiff’s use of Sunbiz.org, instead 

of “skip trace” or something comparable, did not constitute a diligent 

search. He further argues that because plaintiff’s counsel’s affidavit 

concerning attorney’s fees only reflected 2.85 hours of work, he essentially 

conducted no search, let alone a diligent one. 

In Southeast & Associates, Inc. v. Fox Run Homeowners Ass’n, 704 So. 

2d 694, 696 (Fla. 4th DCA 1997), we held that a diligent search was 
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conducted when evidence showed the plaintiff’s affidavit listed “nine 

attempts at personal service, the contact with the neighbors, the two skip 

traces, and the trip to a retail establishment where the process server 

learned that the lessee had moved out in the middle of the night.” 

In First Home View Corp. v. Guggino, 10 So. 3d 164, 164 (Fla. 3d DCA 

2009), the Third District held that due diligence was satisfied when a 

lender hired an investigator, who discovered the homeowner had two New 

York addresses, but attempts to personally serve him there failed. The 

investigator also searched his credit information, employment, and 

checked the motor vehicle department, postal service, and telephone 

companies before serving the homeowner by publication. Id. at 164-65; 

see also Gans v. Heathgate-Sunflower Homeowners Ass’n, 593 So. 2d 549, 

552 (Fla. 4th DCA 1992).

Here, the plaintiff argues the guarantor could not be served at the 

address provided to the Secretary of State, and was not listed as the 

property owner on the Broward County Property Appraiser’s website at the 

address where he was actually living because he was a tenant. Following 

a Sunbiz.org search, three attempts were made to serve him. However, 

the record does not reflect any attempt to use a skip trace or a comparable 

method, any search of phone bills, credit information, or the DMV, etc.—

as took place in First Home View Corp. And, the plaintiff was ultimately 

able to serve the guarantor at his home address with the subpoena duces 

tecum in aid of execution. Plaintiff’s counsel did not explain how he later 

found the guarantor for service of the subpoena. 

In short, neither the plaintiff nor his counsel appear to have diligently 

searched for the guarantor before resorting to notice by publication. Here, 

the record reflects only three attempts at service at addresses located 

through Sunbiz.org. The record is silent as to any follow-up investigation. 

As the guarantor points out, plaintiff’s counsel spent only spent 2.85 total 

hours on the case.

Florida law provides a strong preference for determining lawsuits on 

the merits, and “courts should liberally set aside defaults under 

appropriate circumstances.” Geer v. Jacobsen, 880 So. 2d 717, 720 (Fla. 

2d DCA 2004). Once a default judgment is entered, it is the moving party’s 

burden to demonstrate “excusable neglect, a meritorious defense, and due 

diligence in order for the trial court to vacate the default and the 

judgment.” Id. (citations omitted).

Here, the trial court found (and the plaintiff agreed) the guarantor was 

diligent in moving to vacate the default final judgment and may have a
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meritorious defense. The guarantor filed an Answer and Affirmative 

Defenses, demonstrating the possibility of that meritorious defense.

And the court seemed to indicate the age of the case mattered. “[I]f this 

was a [2017] situation, I would guarantee that [I’d want to resolve the case 

on the merits], my only worry is it’s a [2013] case.” The age of the case is 

not a factor to consider in determining whether to set aside a default. 

The guarantor was served with notice of a deposition on April 1, 2017, 

which was the first time he learned of the suit. The guarantor moved to 

vacate the default 19 days later. Because the guarantor acted with due 

diligence to set aside the default, and demonstrated a potential meritorious 

defense, we reverse. See Miami-Dade County v. Coral Bay Section C 

Homeowners Ass’n, 979 So. 2d 318, 324 (Fla. 3d DCA 2008). 

We therefore reverse and remand the case for the trial court to set aside 

the default judgment, and for further proceedings consistent with this 

opinion.

GERBER, C.J., and GROSS, J. concur.

* * *

Not final until disposition of timely filed motion for rehearing.