County: Miami Dade
Court: 11th Judicial
Case No: CASE NO.: 2015-22974-CA-01
Plaintiff:
Brian Sidman
Defendants:
Joseph Patrick Dougherty
Patricia Lynne Dougherty
Respondents:
Joseph Patrick Dougherty
11106 CRESENT BAY BLVD
CLERMONT FL
Patricia Lynne Dougherty
11106 CRESENT BAY BLVD
CLERMONT FL
In December of 2015, I was contacted by the plaintiffs attorney firm to serve process on the respondents. At the request of the my client, my original attempts were made at the Leesburg business address of the respondents. The business revolved around the tax industry and was named Lake County Tax Advisory Group. After several visits to the location, it became clear that the business was a seasonal business and would not be open until well into January. This belief was confirmed by myself after finding cars parked in front of the business sometime in mid January, for the first time after driving by the business daily since December.
Upon instruction from my client, I began to attempt service at the residence immediately after realizing that the business was closed. My first visit found two cars in the driveway, a Benz and a Suburban. No one came to the door. I noticed that a deputy had already been there ahead of me when I saw his business card wedged in the front door. This is customary for the deputies and I have seen this countless times in the 9 years of serving papers. At that time I did the customary door knocking in the neighborhood to learn more information on the respondents. A neighbor shared with me that the children were home schooled. I was also informed at that time that several other process servers had already attempted to get information also. I made note of the vehicle description and registration of the respondents vehicles and departed.
The setting of the stage
On the Saturday of service on 19 December 2015, I arrived at the residence and found 2 Benz and no Suburban. I knocked at the front door and rang the bell as I always do. There was no response at around noon. Since the Suburban was missing, I thought I would wait around and maybe have some luck catching the wife coming home from Saturday morning chores/activities. So, I drove to the end of their street and turned around and approached the house from the opposite direction coming into the subdivision. I found a nice place to park where I wouldn't raise any concern from neighbors. I also had a "COURIER" MAGNET on the side of my truck to ease residential concerns. After 15 minutes, I decided this could be awhile and I was going to need a beverage since it was so hot. So I left to go to the gas station and get a drink.....about a 3 minute drive. I came back directly and resumed my surveillance at the same location. After about another 30 minutes, one of the respondents, Mr. Joseph Dougherty (identified by a photo provided by my client that I had with me) came out of the house and got into one of the Benzs. He started backing up as I realized I wasn't going to be able to follow a Benz with a 1995 F150. So, I decided to hold my ground. At the end of the driveway, the Benz stopped and Mr. Joseph Dougherty got out and walked casually back into the house. At that instant I knew what was happening.....the 2 minute warning of the eminent arrival of Mrs. Patricia Lynn Dougherty. I started my truck up, turned off the radio, dumped my soda out of the window and waited for the approaching suburban to round the curve in front of their house. My prediction was validated. The suburban was approaching at a high rate of speed. I immediately drove at the respondent. As we both met at the driveway at the same time, I could see the look on her face....panic. She pulled in first and parked where she always parked....in the space that was freed up by Joseph Dougherty when he moved the Benz. Very quickly, the respondent opened the door of the Suburban. I identified myself and the nature of my business through my opened window. Her dog, a golden retriever, bolted out and was running freely about the property unsecured by leash. Patricia Dougherty slammed the door of the Suburban, disregarded the dog, and ran to the door of the garage. As she desperately tried to get the door opened, she glanced over her shoulder to see if I was hot on her heels, and then slipped into the garage, slamming the door behind as if I was going to follow her into the house. I did not run after her as that could have been justifiable use of deadly force upon me. So, I casually approached the front door again, rang the doorbell, knocked on the door and talked through the door informing them who I was and what I had. I thought they might come to the door since I actually caught the respondent running away. But, no one came out. So I walked around to the side door where the respondent entered and affixed my initials, date, time and credential information on the front of the pleadings, and dropped them in front of the door. I then went back to the truck with my clipboard and work order. At that time I thought it might be a good idea to get some pictures in case there is a challenge to my service. So I put my clipboard (which had other pleadings also) back in the truck and got my cell phone from the truck to take pictures. After placing the clipboard on the front seat, I secured the truck in the event these creative respondents got the idea they would run out of the house and grab my other documents while I was busy taking pictures. I shot 4-5 photos showing all of the vehicles in the driveway, including mine. After that, I got back in the truck and drove off feeling confident with my work.
Motion to have Process Server found in contempt of court for non appearance and ordered to pay attorney fees and court reporter fees.
Plaintiff filed for a default judgement after I filed my return of service. At some point prior to the court ruling on the motion for default judgement, defendants attorney intervened and filed a motion to quash my return of service. I suppose that is what he is getting paid to do. I don't have a real problem with him making the motion to quash. But I did have a problem with him trying to exert subtle pressure on this Process Server under the guise of a demand for reasonable attorney fees when I could not appear at a deposition with 15 hours notice. Judge denied the motion to find in contempt of court after I responded to each of the 10 bullet points that the defendants attorney listed in his motion to find me in contempt of court. I disabled 9 of the 10 points, the 10th being that I agreed that I did not appear. I also made the court aware that this was a frivolous motion and that the defendants attorney might be losing his license to practice once AGAIN. No doubt, the defendants' attorney regretted his extreme behavior which the court denied. I ultimately appeared for deposition 2 days later.
The Deposition
How many questions can you ask a Process Server? The deposition lasted about 1.5 hours....hard to believe isn't it? The defendants attorney totally ignored the Florida Statute 48 as it pertains to Service of Process. Instead he pulled out the Florida Rules of Civil Procedure, the bible of courtroom protocols in Florida. The preface of the institutional resource informs all readers that in any conflict with the Florida Statutes, the book will take precedence. Process Servers do not have access to this book, at least not that I am aware of. It is a book roughly the size of an unabridged version of the American Dictionary. Defendants attorney somehow expected me to be thoroughly familiar with the Florida Rules of Civil Procedure. And, at one point asked for a legal opinion one section of the book. Of course the plaintiffs attorney strongly objected to my qualification to render a legal opinion. Duly noted.
The hearing on the Motion to Quash Return of Service
Two days after the deposition, I appeared and testified for an hour in the Miami Dade courthouse. After I was excused, I left the courtroom not knowing how the court would rule. I think neither side had any idea what the outcome would be. My testimony was strictly objective and I never argued or answered questions with a question. I stuck to the facts and testified wearing my work uniform with my license hanging around my neck. I made it very clear that I had no dog in the fight. I was just doing my job. After waiting in the lobby for 10 minutes, my client came out to inform me that the court denied the motion to quash citing 6 previous rulings in Florida and the credibility of the witness. I felt no particular satisfaction knowing that the motion was denied. If I did, then I wouldn't be a very good professional would I? After all, on the return of service, we swear that we are disinterested.
Conclusion
- ALWAYS make sure you have dash cams in all of your cars. ( I didnt have one in my truck)
- ALWAYS take good quality photos of the house, property, street and vehicles. I just purchased a new cell phone Asus 2E. It has geo tagging on the pictures (Long. and Lat.)
- ALWAYS wear a work uniform, one that reflects the seriousness of your job
- ALWAYS maintain professional grooming appearance
- ALWAYS make notes of anything you observe, like windows, doors, CATV, physical description of respondent(s), vehicles and registration w/exp dates, temperature of hood over the engine, lights/TV on inside house, signs of outdoor activities like basketball hoop, WHEN THEY COME OUTSIDE TO CHECK THE MAIL (VERY IMPORTANT TO KNOW WHEN/if MAIL IS DELIVERED)
- NEVER contact neighbors unless you know that evasion of service is happening. (last resort)
- ALWAYS assume that you will be defending your return of service in front of a judge.
- ALWAYS assume that you may forfeit your license if you do not execute your job according to Florida law.
- Avoid the temptation to flaunt your victories. Nobody cares anyway.
- Realize that most people will view a Process Server as someone who is making life miserable for others and is therefore a person of ill repute.
- ALWAYS keep a copy of every cover letter from your clients even after you have completed the job.
- ALWAYS ask your clients for an email cover letter if they want to fax you the documents or simply email them to you. Cover letters are crucial in so many different ways.
- ALWAYS get paid in advance. You get more respect that way.
- ALWAYS provide and invoice when requesting any payment.
- ALWAYS call your client at the moment of service. This acts as a time stamp for future reference in case you lose track of the actual time of service at a later date.
- Avoid service in total darkness. It can cause suspicions, police intervention, dog bites and the appearance of firearms.
- NEVER enter anyone's house even if you are invited.
- ALWAYS assume that you are serving someone in law enforcement.
In My Humble Opinion
It's a bad idea for anyone to avoid service of process, especially for Process Servers. All delays in service of process will be assigned a dollar value and passed on to the defendant who is avoiding service. These respondents were clearly not acting on the advice of an attorney to hide, since there are alternative ways to serve process, i.e. constructive service through newspaper publications and service through the Secretary of State for businesses who are evading service. Process Servers have to realize that many people are not educated about the legal process. We've all heard them say "I'm not signing the papers" or "I'm not him". Yet they are totally unaware that this is a serious violation of law and can bring charges of Obstruction of Justice, punishable by fines and/or imprisonment. They also think that they can hide behind doors forever. It is our job to educate these respondents, given the opportunity. It's also our job to hold their hands to the fire when they avoid service. This way the word will spread to others, that evading service is futile and has consequences.
Defendant's attorney never proffered any information about who the woman was that got out of the Suburban. He was very careful not to jeopardize his clients liberty. Any slip of the tongue in court could bring charges of Obstruction or, worse, Purjury. He never admitted or denied that his client received the papers. His entire motion was based upon me not having a positive identification on the woman driving the Suburban that was registered in the respondents name. And that is true, I had no photo of her. But I did have a wonderful photo of the man who came out of the house and I did positively identify him. The attorney for the defendant had a formidable challenge to quash my ROS given all the facts of several different companies failures, the sheriffs failure, my photographs of all of the vehicles and my testimony untainted by personal bias. This attorney crossed the line when he tried to intimidate a Process Server through a motion to pay damages to the respondent. This is a very unprofessional gesture by an officer of the court who relies on the same individuals to initiate pleadings for all of his own clients. In my opinion, the defendants' attorney should have been reprimanded for such a frivolous motion that was self serving and with malicious intent.
