Samuel Slomowitz and Ruth Slomowitz, n/k/a Ruth Vogel, Appellants, v. E.O. Walker and Geneva Walker, n/k/a Geneva Stevens, Appellees.

Summary

A sheriff's return of service is presumptively valid and can be impeached only by clear and convincing evidence, which the court defined as credible, distinctly remembered, precise, and explicit testimony that produces a firm belief or conviction without hesitancy. Applying this standard, the Florida Fourth District Court of Appeal reversed the trial court's order setting aside an 11-year-old default judgment, holding that the defendant's uncorroborated denial of service was insufficient to overcome the presumption.

Holdings

1. A sheriff's return of service is presumptively valid, and a defendant seeking to impeach it must present clear and convincing evidence corroborating the denial of service. Geneva Walker failed to meet this burden because her and her nephew's testimony was not precise, explicit, and distinctly remembered, nor did it produce a firm belief or conviction that she was not served.
2. Clear and convincing evidence requires that: (1) the evidence be credible; (2) the facts be distinctly remembered; (3) the testimony be precise and explicit; (4) the witnesses be lacking in confusion as to the facts in issue; and (5) the evidence produce in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

Questions Presented

1. Whether the trial court erred in setting aside the 1969 final judgment for lack of personal service of process, based on the evidence presented.
2. What standard of proof is required to impeach a sheriff's return of service, and what constitutes 'clear and convincing evidence' in Florida.

Disposition

reversed_and_remanded