PETER F.K. BARABAN, APPELLANT,
v.
IRVING SUSSMAN, TRUSTEE, ET AL., APPELLEES
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A Florida appellate court reversed the trial court's order denying a motion to dismiss based on insufficient service of process, holding that service by an employee of an appointed private process server was improper because the employee herself was never appointed and the appointment of the process server does not extend to his employees or designees.
The court held that service of process by Dane Obradavich was void and should be quashed. The appointment of James A. Morton as a private process server does not include or extend to Morton's employees, agents, or designees. A private process server must meet the statutory requirements of competence and disinterest, and these criteria cannot be presumed to apply to unappointed employees.
[1] A court may appoint any competent person not interested in the action to serve process, but such appointment must be made with respect to the specific individual serving…
[2] Service of process made by an individual not appointed by the court to serve process is a nullity.
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Join FLexlaw to unlock all legal intelligence“the court may appoint any competent person not interested in the action to serve the process”
Establishes the statutory criteria for appointing a private process server under Florida Rule of Civil Procedure 1.070(b)
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Join FLexlaw to unlock all legal intelligenceThe sheriff was unable to serve defendant Baraban. The plaintiff obtained an order appointing James A. Morton as a private process server under Florid…
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WALDEN, Judge.
This is an appeal from an order denying the defendant’s motion to dismiss for insufficient service of process.
The Sheriff being unable to serve Defendant, Baraban, the Plaintiff applied to the trial court for appointment of a private process server under the provisions of Fla. R.Civ.P. 1.070(b). The trial court appointed James A. Morton. Thereafter, service was made by Dane Obradavich, an employee of James A. Morton.
Defendant, Baraban, filed a motion to dismiss the complaint on several grounds. One ground was the insufficiency of service of process because, among other things, “the purported process server was not properly appointed.”
We have two things to say.
FIRST
Florida Rule of Civil Procedure 1.070(b) provides, “Service of process may be made by an officer authorized by law to serve process but the court may appoint any competent person not interested in the action to serve the process.” (Emphasis supplied). As seen, there are two criteria to be met in appointing a private process server, the person must be competent and disinterested in the action. Presumptively the trial court made such determination in appointing James A. Morton. However, no such determination was made with reference to Dane Obradavich as she was not appointed. We do not know if that person is competent or interested in the action. Further, we can in nowise interpret the appointment of Morton to mean and to include Morton’s employees, agents or designees as alternate private process servers.
It is necessary to follow the provisions of the mentioned Rule in order to effectively obtain the appointment of an elisor (process server). See Petition of Stoll, 309 So. 2d 190 (Fla. 1st DCA 1975) and Exchange National Bank of Chicago v. Rotocast Plastic Products, Inc., 352 So. 2d 145 (Fla. 3d DCA 1977). Moreover, strict compliance with service of process procedures is required. Electro Engineering Products Co., Inc. v. Lewis, 352 So. 2d 862 (Fla.1977).
We hold that service of process upon Defendant, Baraban, made by Dane Obra-dovich was a nullity and that same should be quashed.
SECOND
Without laboring the matter we feel that the classic and preferable manner of presenting a defense of insufficiency of service of process under Florida Rule of Civil Procedure 1.140(b)(5) is by a motion to quash such allegedly insufficient service of process rather than by a motion to dismiss the complaint. However, in Lendsay v. Cotton, 123 So. 2d 745 (Fla. 3d DCA 1960) it was held that a motion to dismiss, as well as a motion to quash, is appropriate to question the trial court’s jurisdiction based on insufficiency of service of process. We agree, remembering that the rules shall be construed to secure the just, speedy and inexpensive determination of every action. Fla.R.Civ.P. 1.010. Here, the content of the motion to dismiss was explicit in its attack on the process and it cannot be said that plaintiffs have been in anyway prejudiced by the fact that movant asked for dismissal of the complaint rather than for service of process to be quashed. Of course, insufficient service merits only a nullification and not the dismissal of the complaint.
Thus we reverse and remand with instructions to quash the service of process made by Dane Obradavich upon Defendant, Baraban.
Reversed and remanded.
GLICKSTEIN and HURLEY, JJ., concur.
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Cited By (11 total)
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Abbate v. Provident Nat'l Bank, 631 So. 2d 312 (Fla. 5th DCA 1994)…institution of civil proceedings against him and that this was done here. This argument, however, runs counter to the overwhelming law in Florida that strict compliance with the statutes governing service of process is required. Baraban v. Sussman, 439 So. 2d 1046 (Fla. 4th DCA 1983). Absent strict compliance with the statutes governing service of process, the court lacks personal jurisdiction over the defendant. Sierra Holding, Inc. v. Inn Keepers Supply Co., 464 So. 2d 662 (Fla. 4th DCA 1985). REVERSED. W…
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Schupak v. Sutton Hill Assocs. & Jesson, Inc., 710 So. 2d 707 (Fla. 4th DCA 1998)…m. This appeal is from the order denying those motions. Strict compliance with the statutes governing service of process is required. See, e.g., Sierra Holding, Inc. v. Inn Keepers Supply Co., 464 So. 2d 652 (Fla. 4th DCA 1985); Baraban v. Sussman, 439 So. 2d 1046 (Fla. 4th DCA 1983). Where the court’s in personam jurisdiction is dependent upon service of process, the court lacks jurisdiction when the service is insufficient. See Cohen v. Drucker, 677 So. 2d 953 (Fla. 4th DCA 1996); Moschetta v. Atlantic Nat’…
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Carlini v. State, 521 So. 2d 254 (Fla. 4th DCA 1988)…n Keepers Supply Co., 464 So. 2d 652 (Fla. 4th DCA 1985); Bussey; Federal Insurance Co. v. Fatolitis, 478 So. 2d 106 (Fla. 2d DCA 1985). Statutes dealing with service of process are to be strictly construed. Sierra Holding Inc.; Baraban v. Sussman, 439 So. 2d 1046 (Fla. 4th DCA 1983). The burden of proof to sustain the validity of service of process is upon the person who seeks to invoke the jurisdiction of the court, and to achieve proper service of process, there must be a strict compliance with the appli […
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
- Electro Eng'g Prods. Co., Inc. v. Lewis, 352 So. 2d 862 (Fla. 1977)
- Lendsay v. Polk F. Cotton and Betty Anne Cotton, 123 So. 2d 745 (Fla. 3d DCA 1960)
- Petition of Marc Alan Stoll and Gregory Lloyd Miele, 309 So. 2d 190 (Fla. 1st DCA 1975)
- Exch. Nat'l Bank OF Chicago v. Rotocast Plastic Prods., Inc., 352 So. 2d 145 (Fla. 3d DCA 1977)