JUDITH HERSKOWITZ, PETITIONER,
v.
SCHWARZ & SCHIFFRIN, RESPONDENT
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A Florida appellate court granted certiorari review and quashed a trial court's denial of a motion to quash service of process, finding that service was invalid because the process server's return failed to establish compliance with statutory requirements for substituted service.
The court held that service was invalid because the process server's return was facially defective and failed to establish that the person served was actually over age 15 and a resident of the defendant's home, as required by statute. The return's failure to identify the specific person served or demonstrate compliance with statutory requirements rendered it insufficient.
[1] Substituted service of process statutes must be strictly construed and strictly complied with.
[2] Service of process is invalid if the return of service fails to show that the individual served is over the age of 15 and resides in the defendant's home.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Statutes governing substituted service of process must be strictly construed and must be strictly complied with.”
Establishes the fundamental principle that service of process statutes require strict compliance, not substantial compliance.
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Join FLexlaw to unlock all legal intelligenceA process server attempted service at the defendant's residence by knocking on the door. An unknown male voice answered but refused to open the door. …
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BARKDULL, Judge.
The petitioner has filed a petition for writ of certiorari seeking review of an order of the circuit court (sitting in its appellate capacity) which affirmed a trial court’s order denying the defendant’s motion to quash service of process.
Service of process was attempted by the process server going to the defendant’s residence where, upon knocking on the door, a male voice answered. The unknown male refused to open the door so the process server left the papers on the door step and departed. His return indicated that he had served a John Doe, a person above the age of 15, who was a resident of the defendant’s household, pursuant to Section 48.031, Florida Statutes (1979). The defendant moved to quash service of process, contending that both she and her son, the only permanent residents of her household, were out of town on the date service of process was alleged to have occurred. The trial court denied the motion. Timely appeal to the circuit court resulted in the order of affirmance.
The error alleged herein is of such fundamental nature that it rises to a level of denial of due process, so fatally infecting the proceeding that the ruling cannot answer constitutional muster. Thus, we shall exercise our certiorari jurisdiction. See: City of Winter Park v. Jones, 392 So. 2d 568 (Fla. 5th DCA 1980). Section 48.031, Florida Statutes (1979), reads as follows:
“Service of process generally.—
(1) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint petition, or other initial pleading or paper or by leaving the copies at his usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.”
Statutes governing substituted service of process must be strictly construed and must be strictly complied with. Atlas Van Lines Inc., v. Rossmoore, 271 So. 2d 31 (Fla. 2d DCA 1972); Hauser v. Schiff, 341 So. 2d 531 (Fla. 3d DCA 1977). Section 48.-031, Florida Statutes (1979) clearly requires that in order to perfect substituted service it must be made upon a person over the age of 15 years, who resides in the defendant’s place of abode. The process server’s return filed herein shows on its face that service was made on a John Doe person residing therein. Clearly, such a return is invalid on its face and without more cannot reflect a determination that the individual served comes within the purview of Section 48.031, Florida Statutes (1979). Such a return fails to show that the individual is over the age of 15 and, in fact, resides in the defendant's home; thus, service would be invalid. See: Hauser v. Schiff, supra; Couts v. Maryland Casualty Company, 306 So. 2d 594 (Fla. 2d DCA 1975); Sangmeister v. McElnea, 278 So. 2d 675 (Fla. 3d DCA 1973). Furthermore, leaving the suit papers outside the door of the defendant’s abode, where there is no evidence that the individual inside the abode (who made the response) was a person 15 years of age or older, is insufficient evidence of the facts that are required under the statute. Cullimore v. Barnett Bank of Jacksonville, 386 So. 2d 894 (Fla. 1st DCA 1980).
In light of the foregoing, we find that the circuit court (sitting in its appellate capacity) has departed from the essential requirements of law in affirming the trial court’s order denying the defendant’s motion to quash service of process.
Therefore, the order of the circuit court is quashed and the cause is remanded for further proceedings consistent herewith.
Quashed and remanded with directions.
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Citator
Cited By (11 total)
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Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985)…cord, among other things, the manner of execution of the process and the name of the person served. A failure to record those facts invalidates the service, unless it is amended. § 48.21, Fla.Stat. (1979); see also Herskowitz v. Schwarz & Schiffrin, 411 So. 2d 1359 (Fla. 3d DCA 1982) (statutes governing substituted service of process [*864] must be strictly complied with and strictly construed). The return here did not reflect the name of the person served, merely indicating that a Jane Doe was served. With r…
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Koster v. Sullivan, 160 So. 3d 385 (Fla. 2015)…ERRY, JJ., concur. LEWIS, J., concurs in result. . These decisions were: Robles-Martinez v. Diaz, Reus, & Targ, LLP, 88 So. 3d 177 (Fla. 3d DCA 2011); Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985); and Herskowitz v. Schwarz & Schiffrin, 411 So. 2d 1359 (Fla. 3d DCA 1982). . The applicable portion of section 48.21 was amended by chapter 2011-159, § 5, at 2863, Laws of Florida, after the service of process in Koster. However, the amendments concern only the signature of the person who effects servi…
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Koster v. Sullivan, 103 So. 3d 882 (Fla. 2d DCA 2012)…dentified in [*886] section 48.21 impacts the initial determination of whether a return is regular on its face. Furthermore, because the facts of both Gonzalez, 472 So. 2d at 864, and the case upon which it relies, Herskowitz v. Schwarz & Schiffrin, 411 So. 2d 1359 (Fla. 3d DCA 1982), involved returns of service that failed to identify the name of the person who was served, both returns were defective on their faces solely based on the express terms of section 48.21 without the need of referencing section 48.0…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hauser v. Schiff, 341 So. 2d 531 (Fla. 3d DCA 1977)
- City OF Winter Park v. Jones, 392 So. 2d 568 (Fla. 5th DCA 1980)
- Atlas van Lines, Inc. v. Rossmoore, 271 So. 2d 31 (Fla. 2d DCA 1972)
- Cullimore v. Barnett Bank OF Jacksonville, 386 So. 2d 894 (Fla. 1st DCA 1980)
- Angeline R. Couts v. Md. Cas. Co., 306 So. 2d 593 (Fla. 2d DCA 1975)
- Sangmeister v. McELNEA, 278 So. 2d 675 (Fla. 3d DCA 1973)