Third District Court of Appeal
State of Florida
Opinion filed May 10, 2017.
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No. 3D16-2524
Lower Tribunal No. 11-31982
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Unknown Person in Possession of the Subject Property, a/k/a
Lazareth Fracis, a/k/a Nazareth Solomon,
Appellant,
vs.
MTGLQ Investors, LP,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Peter R. Lopez, Judge.
The Strauss Law Firm, P.A., and David A. Strauss (Fort Lauderdale), for
appellant.
eXL Legal, PLLC, and Nicole Ramirez (St. Petersburg), for appellee.
Before SUAREZ, C.J., and EMAS and LOGUE, JJ.
ON CONFESSION OF ERROR
LOGUE, J.
In conjunction with the filing of the plaintiff’s complaint in the underlying
residential foreclosure case, a summons was issued in the name of, and directed to
be served upon, an individual identified as “UNKNOWN PERSON(S) IN
POSSESSION OF THE SUBJECT PROPERTY.” The Return of Service,
however, indicated that the summons and complaint were allegedly served upon a
person named “Lazareth Fracis,” who is in actuality the appellant, Nazareth
Solomon.
The appellant subsequently filed a motion to quash service of process
alleging that service of process was improper and no action had been properly
commenced against him. The trial court denied the motion and this appeal
followed.
Based upon our independent review of the record and the appellee’s proper
and commendable confession of error, we reverse the trial court’s order and
remand with instructions that service of process upon the appellant be quashed.
See Gilliam v. Smart, 809 So. 2d 905 (Fla. 1st DCA 2002). We note that doing so
is without prejudice to the appellee’s ability to perfect service upon the appellant in
accordance with the Florida Rules of Civil Procedure.
Reversed and remanded with instructions.
2
Fracis A/K/A Solomon v. Mtglq Investors, Lp
Combined Opinion