RUSSELL JAY FERGUSON, APPELLANT,
v.
JAMES WALTER MCWILLIAMS, JR., ET AL., APPELLEES
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The court held that a complaint must allege jurisdictional requirements to justify substituted service of process.
Plaintiff attempted substituted service on defendant after unsuccessful personal service. Defendant moved to quash service, arguing the complaint lack…
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PER CURIAM.
Defendant brings this non-final appeal to challenge an order denying his motion to quash service of process. We reverse.
Plaintiff sued defendant for injuries sustained in an automobile accident. Attempts at personal service proved unsuccessful. Thus, plaintiff sought to utilize sections 48.161 and 48.171, Florida Statutes (1985), which, in specified instances, authorize substituted service on the Secretary of State. Next, defendant moved to quash service of process on the ground that the complaint failed to contain any allegations to justify the use of substituted service of process. The motion was denied and this appeal ensued.
It is well-settled that “[t]o support substituted service of process on a defendant, the complaint must allege the jurisdictional requirements prescribed by statute. If it fails to do so, then a motion to quash process and service of process should be granted.” Drake v. Scharlau, 353 So. 2d 961, 964 (Fla. 2d DCA 1978); see also Benitez v. Insurance Co. of North America, 385 So. 2d 128 (Fla. 3d DCA 1980); Turcotte v. Graves, 374 So. 2d 641 (Fla. 4th DCA 1979); Bistricer v. Ehrenreich, 346 So. 2d 624 (Fla. 3d DCA 1977); Henschel-Steinau Co. v. Harry Schorr, Inc., 302 So. 2d 198 (Fla. 4th DCA 1974).
Since the plaintiff's complaint in the case at bar is devoid of any jurisdictional allegations which would justify substituted service of process, the order on appeal is reversed and the cause is remanded with instructions to grant the defendant’s motion.
REVERSED and REMANDED.
GLICKSTEIN and WALDEN, JJ., and HURLEY, DANIEL T.K., Associate Judge, concur.
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Nicolette Wiggam v. Bamford, 562 So. 2d 389 (Fla. 4th DCA 1990)…settled in Florida that “[t]o support substituted service of process on a defendant the complaint must allege the jurisdictional requirements prescribed by statute.” Drake v. Scharlau, 353 So. 2d 961, 964 (Fla. 2d DCA 1978); Ferguson v. McWilliams, 483 So. 2d 509 (Fla. 4th DCA 1986). This means that the plaintiff must allege in his complaint the ultimate facts bringing the defendant within the purview of the statute. Fla.R.Civ.P. 1.070(i). Pleading the ultimate facts requires that two requisites be alleged.…1 / 2
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Drury v. Nat'l Auto Lenders, Inc., 83 So. 3d 951 (Fla. 3d DCA 2012)…ded that service by publication does not lie. See Zieman v. Cosio, 578 So. 2d 332, 332 (Fla. 3d DCA 1991) (finding actions for money damages and rescission of the contract are not actions enumerated in section 49.011); see also Meiliunas v. O’Leary, 483 So. 2d 509, 510 (Fla. 4th DCA 1986) (holding suit on a promissory note was not type of case in which service by publication can be utilized). Service by publication to enforce a personal guaranty is not authorized under the statute. Moreover, because “[a] pe…
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Fawaz Farouki v. Attel et CIE, 682 So. 2d 1185 (Fla. 4th DCA 1996)…t allege the jurisdictional requirements prescribed by statute. If it fails to do so then a motion to quash process should be granted.” Drake v. Scharlau, 353 So. 2d 961, 964 (Fla. 2d DCA 1978); see Wiggam, 562 So. 2d at 390; Ferguson v. McWilliams, 483 So. 2d 509 (Fla. 4th DCA 1986). In the instant case, Attel substituted service under section 48.181(1), which provides, inter alia, that Florida’s secretary of state can accept service for any former Florida resident who previously conducted business in Flori…
Previewing 3 of 8 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)
- Turcotte v. Graves, 374 So. 2d 641 (Fla. 4th DCA 1979)
- State v. Weber, 302 So. 2d 198 (Fla. 1st DCA 1974)
- Stanley v. State, 346 So. 2d 624 (Fla. 3d DCA 1977)
- Bistricer v. Ehrenreich, 346 So. 2d 624 (Fla. 3d DCA 1977)
- Benitez v. Ins. Co. OF N. Am., 385 So. 2d 128 (Fla. 3d DCA 1980)