CESAR H. CONDE AND MARVIN DIAZ, M.D., P.A., ETC., ET AL., APPELLANTS,
v.
PROFESSIONAL MEDIQUIP OF FLORIDA, INC., ET AL., APPELLEES

Fla. 4th DCA | 1983-08-10
No. 83-112
LETTS and DELL, JJ., concur.
436 So. 2d 322 Florida District Court of Appeal, Fourth District (1983) Positive Treatment
Cited by 6 cases

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Synopsis

Conde and Diaz sued Mediscience Technology Corporation for damages related to lost medical equipment. The court reversed a trial court's decision to set aside a default judgment against Mediscience, holding that service of process was validly perfected under Florida law even though the original summons was lost, because the plaintiff substantially complied with statutory substituted service requirements.


Holding

Substituted service was validly perfected. Section 48.161 does not mandate a return of service by the Secretary of State. When service on the Secretary of State is accomplished and certified mailing to the defendant is evidenced by return receipt and affidavit, the statutory requirements are satisfied and the court acquires jurisdiction over the defendant.


Headnotes

[1] Service of process on a foreign corporation through the Secretary of State requires compliance with both Section 48.181 and Section 48.161, Florida Statutes.

[2] Substituted service on a foreign corporation under Section 48.161, Florida Statutes, can be perfected by certified mailing of notice and process to the nonresident, evide…

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Key Quotes

“If the plaintiff chooses substituted service on the Secretary of State under Section 48.181(1), then perfection of such substituted service requires full compliance with one of the alternative methods provided by Section 48.161.”

Establishes that statutory alternatives for perfecting service are options, not cumulative requirements.

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Facts & Procedural History

Plaintiffs sued Mediscience Technology Corporation, a foreign corporation, for damages due to loss or conversion of medical equipment. Service was mad…

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Opinion of the Court
GLICKSTEIN, Judge.

GLICKSTEIN, Judge.

Plaintiffs/appellants sued several defendants, including Mediscience Technology Corporation, a foreign corporation, for damages due to loss or conversion of a piece of medical equipment shipped for repair. Summons and complaint were served on the Florida Secretary of State as agent of the foreign corporation, who acknowledged in writing acceptance of service. Copies of the summons and complaint and of the Secretary’s acknowledgment of the substituted service were sent to the corporation at its New Jersey address by certified mail, and receipt was returned as requested. Counsel for plaintiffs/appellants prepared an affidavit that substituted service had been effected in compliance with Section 48.161, Florida Statutes.

However, the original summons had been lost or misplaced and counsel prepared an affidavit to that effect. Thereafter default judgment was timely entered against Mediscience. Two years later Mediscience successfully moved to set aside the final judgment, on the ground that Section 48.161(1), Florida Statutes, requires the Secretary of State’s return of service, which, absent the original summons, had not been achieved.

Section 48.181, Florida Statutes (1981), authorizes use of substituted service when suing a foreign corporation, on claims arising out of its business, by serving process on the Secretary of State as its “appointed” agent. Section 48.161, Florida Statutes (1981), sets forth the method of substituted service on nonresidents. The two statutory sections are complementary and must be read in pari materia with each other. Atlas Van Lines, Inc. v. Rossmoore, 271 So. 2d 31, 32 (Fla. 2d DCA 1972).

If the plaintiff chooses substituted service on the Secretary of State under Section 48.181(1), then perfection of such substituted service requires full compliance with one of the alternative methods provided by Section 48.161. Section 48.-161 requires such substituted service be perfected and evidenced by either: (1) registered or certified mailing to the nonresident of both a notice of such substituted service and a copy of the process, evidenced by the filing of the nonresident’s return receipt and an affidavit of compliance by plaintiff or his attorney; or, (2) an appropriate officer’s return showing service on the nonresident within or without this state.

P.S.R. Associates v. Artcraft-Heath, 364 So. 2d 855, 857-58 (Fla. 2d DCA 1978). Section 48.161 further requires the public officer authorized to receive substituted service —i.e., the Secretary of State — to maintain a record of all process served on him, showing the hour and day of service.

The object of service of process is to give defendant notice that a legal proceeding has been instituted, and an opportunity to defend against it. E.g., Mitchell v. Brown, 114 So. 2d 178, 183 (Fla. 1st DCA 1959). Appellee Mediscience has not denied receipt of such notice, nor has it by clear and convincing evidence demonstrated the invalidity of the service. Travelers Insurance Company v. Davis, 371 So. 2d 702, 703, 704 (Fla. 3d DCA 1970). Plaintiffs’ attorney filed an affidavit to the effect that a copy of the summons and complaint and a copy of the Secretary of State’s acknowledgment of service upon him had been mailed to and received by Mediscience at its New Jersey address. A return receipt accompanied this affidavit.

Thus, the trial court had satisfactory proof that prong one of the Section 48.161 procedure, service on the Secretary of State, and alternative (1) of prong two, certified mailing to defendant, were accomplished. Contrary to the reading given Section 48.161 by appellee and the trial court, the statute does not demand return of service by the Secretary of State.

The trial court accordingly timely knew it had acquired jurisdiction of appel-lee/defendant’s person. See Klosenski v. Flaherty, 116 So. 2d 767, 768 (Fla.1960).

The order setting aside final judgment is reversed.

LETTS and DELL, JJ., concur.


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Citator

Cited By

  • Paola A. Alvarado-Fernandez v. Mazoff, 151 So. 3d 8 (Fla. 4th DCA 2014)
    …d) an affidavit of compliance by plaintiff or his or her attorney; or (2) an appropriate officer’s return showing service on the nonresident within or without the state of Florida. § 48.161, Fla. Stat. (2013); Conde v. Prof'l Mediquip of Fla., Inc., 436 So. 2d 322, 323 (Fla. 4th DCA 1983) (citing P.S.R. Assocs. v. Artcraft-Heath, 364 So. 2d 855, 857-58 (Fla. 2d DCA 1978)). Section 48.181 sets forth the jurisdictional requirements for substituted service of process. These requirements are that “the defendant…
  • Am. Hosp. OF Miami, Inc. v. H. Richard Nateman, M.D., 498 So. 2d 444 (Fla. 3d DCA 1986)
    …swerable to a plaintiff’s claim, to advise the defendant of the nature of that claim, and to afford the defendant an opportunity to defend against it. Klosenski v. Flaherty, 116 So. 2d 767 (Fla.1959); Conde v. Professional Mediquip of Florida, Inc., 436 So. 2d 322 (Fla. 4th DCA 1983); H. Bell & Associates v. Keasbey & Mattison Co., 140 So. 2d 125 (Fla. 3d DCA 1962). Since it is undisputed that American received the summons, serving its agent was quite obviously sufficient. See H. Bell & Associates v. Keasbey…
  • Valle v. Mador, 478 So. 2d 416 (Fla. 3d DCA 1985)
    …8] establishes jurisdiction of the court over the person of the defendant and, by informing the defendant of pending litigation, signals him to defend his interests. Clark v. Clark, 158 Fla. 731, 30 So. 2d 170 (1947); Conde v. Professional Mediquip, 436 So. 2d 322 (Fla. 4th DCA 1983); Haney v. Olin Corp., 245 So. 2d 671 (Fla. 4th DCA 1971). Jurisdiction confers power on the court. Walters; Stewart. A defendant may waive the right to proper service and thereby forfeit his right to challenge the trial court’s j…

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