DALTON JOURNELL, APPELLANT,
v.
ALFRED VITANZO, APPELLEE
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In this motor vehicle negligence action, the Fourth District Court of Appeal reversed the trial court's denial of defendant Journell's motion to quash service of process, holding that substituted service via the Secretary of State was improper because the complaint alleged Journell was a Florida resident rather than a non-resident.
The court held that substituted service via the Secretary of State was improper because the jurisdictional allegations must appear in the complaint itself. Since the amended complaint alleged Journell was a Broward County resident, it required personal service of process, and the subsequent affidavits filed by the plaintiff could not cure this defect.
[1] Jurisdictional allegations required for substituted service of process must appear in the plaintiff's complaint.
[2] Service of process upon the secretary of state as agent for a defendant motor vehicle owner or operator requires the complaint to allege that the defendant was a non-resi…
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Join FLexlaw to unlock all legal intelligence“In order to constitute the secretary of state as agent for a defendant motor vehicle owner or operator the plaintiff must allege in his complaint that the defendant was a non-resident, or a resident of Florida who subsequently became a nonresident, or a resident of Florida concealing his whereabouts.”
Establishes the statutory requirement for using Secretary of State as agent for substituted service
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Join FLexlaw to unlock all legal intelligenceVitanzo sued Journell and an insurance company for damages from an automobile accident. The amended complaint alleged Journell was a resident of Browa…
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DOWNEY, Judge.
Appellee, Alfred Vitanzo, Jr., sued appellants, Dalton D. Journell and Industrial Fire and Casualty Insurance Company, to recover damages sustained in an automobile accident. From an order denying their motion to quash and dismiss service of process appellants have perfected this non-final appeal.
Three points have been presented for our consideration; however, the first point requires reversal so we decline to reach the others.
Appellee filed an amended complaint in which he alleged that appellant, Journell, was a resident of Broward County. When personal service of process was not successfully accomplished, appellee filed an affidavit in which he stated that Journell was a non-resident of the State of Florida. Another affidavit of counsel for appellee states that he had made diligent search to locate Journell and his last known address was 3650 S.W. 13th Court, Fort Lauder-dale, but Journell had moved and left no forwarding address. Later, appellee filed an affidavit of compliance by serving the secretary of state and notice of return of service on Journell through the secretary of state. Appellant moved to quash and dismiss service of process, which was denied.
In order to constitute the secretary of state as agent for a defendant motor vehicle owner or operator the plaintiff must allege in his complaint that the defendant was a non-resident, or a resident of Florida who subsequently became a nonresident, or a resident of Florida concealing his whereabouts. § 48.171, Fla.Stat. (1982); Turcotte v. Graves, 374 So. 2d 641 (Fla. 4th DCA 1979); Drake v. Scharlau, 353 So. 2d 961 (Fla. 2d DCA 1978). In the case at bar appellee’s complaint alleged Journell was a resident of Broward County, Florida. Such an allegation required personal service of process in order to obtain jurisdiction over the defendant.
Appellee contends that Robb v. Picarelli, 319 So. 2d 645 (Fla. 3d DCA 1975) requires that service in this ease be approved because appellee filed an affidavit in the record stating Journell was a non-resident and Robb authorizes the court to consider the entire record. While that statement is made in Robb, the record in Robb shows that the plaintiff filed an amended complaint alleging the defendant was concealing his whereabouts. Both the amended complaint and summons were then served on the secretary of state.
The jurisdictional allegations must appear in the complaint. Appellee’s amended complaint contained allegations requiring personal service of process and that is fatal to his entitlement to substituted service of process here.
Accordingly, the order appealed from is reversed and the cause is remanded for further proceedings.
REVERSED AND REMANDED, with directions.
ANSTEAD and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Rufino Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So. 3d 695 (Fla. 4th DCA 2010)…4th DCA 1990). This requires the plaintiff to “allege in his complaint that the defendant was a non-resident, or a resident of Florida who subsequently became a non-resident, or a resident of Florida concealing his whereabouts.” Journell v. Vitanzo, 472 So. 2d 827, 828 (Fla. 4th DCA 1985). Second, the service must strictly comply with section 48.161, which sets forth the method of substituted service of process. Monaco, 810 So. 2d at 1085. State Farm’s original complaint constituted a shotgun approach to thi…
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Nicolette Wiggam v. Bamford, 562 So. 2d 389 (Fla. 4th DCA 1990)…ousand dollars,”). While it does allege that the cause of action arose from a Florida activity, the complaint fails to allege that appellant is a nonresident or concealing herself. On that basis alone it is fatally defective. In Journell v. Vitanzo, 472 So. 2d 827 (Fla. 4th DCA 1985), this court stated, “[i]n order to constitute the secretary of state as agent for a defendant motor vehicle owner or operator the plaintiff must allege in his complaint that the defendant was a nonresident, or a [*391] resident o…
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Paleias v. Wang, 632 So. 2d 1132 (Fla. 4th DCA 1994)…ain an allegation that the defendant was a nonresident, or a resident of Florida who subsequently becomes a nonresident, or a resident of Florida concealing his whereabouts. Wiggam v. Bamford, 562 So. 2d 389 (Fla. 4th DCA 1990); Journell v. Vitanzo, 472 So. 2d 827 (Fla. 4th DCA 1985); Turcotte v. Graves, 374 So. 2d 641 (Fla. 4th DCA 1979); Drake v. Scharlau, 353 So. 2d 961 (Fla. 2d DCA 1978). The rationale for requiring an allegation of nonresidency for substituted service of process was explained in Red Top…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Drake v. Scharlau, 353 So. 2d 961 (Fla. 2d DCA 1978)
- Robb v. Picarelli, 319 So. 2d 645 (Fla. 3d DCA 1975)
- Turcotte v. Graves, 374 So. 2d 641 (Fla. 4th DCA 1979)