MICHAEL PATASNIK, A/K/A MIKE PATASNIK, T/A SUN CLEANERS, F/T/A SUNSET CLEANERS, APPELLANT,
v.
DAVID MERMELSTEIN, APPELLEE
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The Florida District Court of Appeal reversed a default judgment against Michael Patasnik, holding that the trial court improperly used constructive service via the Secretary of State because the original pleadings did not allege facts supporting such service, and that a late-filed affidavit could not retroactively validate defective process.
The court reversed, holding that the pleadings on file at the time constructive service was sought did not contain sufficient allegations of fact to justify constructive service, and that a late-filed affidavit after service and final judgment cannot retroactively validate invalid process.
[1] Constructive service of process requires a pleading alleging facts that establish a basis for its use.
[2] An affidavit of compliance filed after the issuance of process and entry of final judgment cannot validate otherwise invalid service.
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Join FLexlaw to unlock all legal intelligence“The order appealed must be reversed because the pleadings on file at the time of the issuance of process to be served upon the Secretary of State did not contain an allegation of facts which could be a basis for the use of constructive service of process on the defendant.”
States the core legal requirement that proper factual allegations must exist in the original pleadings to support constructive service.
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Join FLexlaw to unlock all legal intelligencePlaintiff sued Patasnik for collection of a debt. The original complaint alleged Patasnik was a Dade County resident but the sheriff could not locate …
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PEARSON, Judge.
The defendant Michael Patasnik brings this interlocutory appeal from an order which denied his motion made pursuant to Florida Rule of Civil Procedure 1.540. The ground of the motion was that he was not served with process in the suit.
The case proceeded as follows: 1. The complaint for collection of a debt alleged that “[a]t the time of the execution of the subject notes referred to below, Defendant was a resident of Dade County, Florida-, was sui juris, and as of the date of the filing of this Complaint, Plaintiff has no information to the contrary.” 2. A summons was issued and returned unserved with the sheriff’s return stating: “NO SERVICE: For the reason that after diligent search and inquiry failed to find said Michael Patasnik in Dade County, Florida. NOTE: Unable to contact defendant after several attempts at various hours.” 3. Without further pleading, the plaintiff secured the issuance of alias summons directed to the Secretary of State, as statutory agent. 4. The plaintiff filed an affidavit1 of compliance with “the provisions of Florida Statutes 48.161.” 5. The plaintiff moved for and secured a default. 6. On February 22, 1979, a final judgment was entered for the plaintiff. 7. On May 21, 1979, the defendant filed a motion for relief from final judgment and an affidavit which alleged only that “[a]t all times material to this action, the Affiant was a resident of the State of Florida.” 8. The plaintiff filed an extensive affidavit which set forth his unsuccessful efforts to contact the defendant and his conclusion that the defendant was concealing himself despite the fact that he was a resident of the State of Florida. 9. The trial judge denied the motion.
The order appealed must be reversed because the pleadings on file at the time of the issuance of process to be served upon the Secretary of State did not contain an allegation of facts which could be a basis for the use of constructive service of process on the defendant. See the principle in Young Spring & Wire Corp. v. Smith, 176 So. 2d 903 (Fla.1965); and Unterman v. Brown, 169 So. 2d 522 (Fla.2d DCA 1964).
The late filing of an affidavit after the service of process and the final judgment cannot give life to an invalid process.
Reversed and remanded with directions to vacate the final judgment.
. Although made a point on appeal, we do not express an opinion on the sufficiency of this affidavit because it is not necessary for a decision on this appeal.
Cases With Similar Vibessemantic neighbors from the corpus
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Wyatt v. Haese, 649 So. 2d 905 (Fla. 4th DCA 1995)…ce on or before the return [*908] day of the process. E.g., Law Offices of Evan I. Fetterman v. Inter-tel, Inc., 480 So. 2d 1382 (Fla. 4th DCA 1985); Edina Technical Products, Inc. v. Ho, 633 So. 2d 1124 (Fla. 1st DCA 1994); Patasnik v. Mermelstein, 379 So. 2d 411 (Fla. 3d DCA 1980). Appellees’ third attempt at service was by publication. Service of process by publication is not authorized in negligence actions. . Alan Restaurant Corp. v. Walder, 399 So. 2d 1128 (Fla. 4th DCA 1981). The purpose of service,…
Authorities Cited
- O'Neill v. Adams, 176 So. 2d 903 (Fla. 1965)
- Reeves v. State, 169 So. 2d 522 (Fla. 2d DCA 1964)
- Elvin I. Unterman v. Brown, 169 So. 2d 522 (Fla. 2d DCA 1964)