AMERICAN HOSPITAL OF MIAMI, INC., APPELLANT,
v.
H. RICHARD NATEMAN, M.D.; BAPTIST HOSPITAL OF MIAMI, INC.; THOMAS VALDES, M.D.; LEE PEARCE, M.D.; MODESTO MORA, M.D.; AND HARTFORD CASUALTY INSURANCE COMPANY, APPELLEES

Fla. 3d DCA | 1986-07-15
No. 86-685
Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
498 So. 2d 444 Florida District Court of Appeal, Third District (1986) Negative Treatment
Cited by 11 cases

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Holding

A technical defect in a summons, such as naming the resident agent instead of the corporation, does not invalidate service if the defendant received adequate notice and opportunity to be heard.


Headnotes

[1] Service of process is sufficient if it provides the defendant with proper notice of the claim and an opportunity to defend, even if there are technical defects.

[2] A technical variance between a summons and a complaint does not invalidate service if the defendant is not prejudiced by the defect.

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Facts & Procedural History

American Hospital of Miami, Inc. (American) was served with a third-party complaint via its resident agent, John Mudd. The summons named Mudd as the d…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

American Hospital of Miami, Inc. (American) appeals from an order denying its motion to quash process and ordering it to answer a third-party complaint served upon its resident agent. The issue, says American, is whether it was improperly summoned and, thus, should not have been required to respond until this defect was cured.

Immediately below the printed directions to the Sheriff,

“YOU ARE HEREBY COMMANDED to serve this summons and a copy of the complaint or petition in this action on defendant:”

there was typed on the civil action summons the words

“JOHN MUDD 11880 Bird Road, Suite 101 Miami, Florida

“As Resident Agent for AMERICAN HOSPITAL OF MIAMI, INC.” The third-party complaint that accompanied the summons named American, not John Mudd, as the defendant.

American has never contended that John Mudd was not its resident agent; that it did not receive notice of Dr. Nateman’s claim against it; that it did not receive an adequate opportunity to be heard; or that it was in any way prejudiced or misled by the summons. American opts, instead, for form over substance, enchanted by an otherwise unsupported Trawickian tip:

“The body of the process tells the sheriff to serve the named defendant, tells the defendant what he must do or suffer a default and the time within which it must be done. The time deadline is called the return date. Many lawyers put the name of the officer of the organization to be served or of the registered agent in the process, sometimes followed by a comma, and then the name of the defending party. This misnames the defending party and designates the officer or agent as the party to be served. The process is subject to a motion to quash because the misnomer creates a repugnancy on the face of the summons. The organization’s name only should be inserted....”

H.P. Trawick, Florida Practice and Procedure, § 8-3, p. 99 (1984 ed.) (emphasis supplied).

We reject American’s claim that this hypertechnical defect in the summons required the trial court to quash the service. The purpose of service of process is to give a defendant proper notice that it is answerable 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 & Mattison Co., 140 So. 2d 125. Indeed, this court and others have disposi-tively held that service on a resident agent or on the head of a corporation as resident agent or as head of a corporation is service on the corporation. Talianoff v. Ashanti Enterprises, 382 So. 2d 856 (Fla. 3d DCA 1980) (service on corporate president as head of corporation was service on corporation); Evershield Products, Inc. v. Sapp, 195 So. 2d 10 (Fla.2d DCA) (service on “George Skadding, President of said corporation” was service on corporation), appeal dismissed, 204 So. 2d 209 (Fla.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1052, 19 L.Ed.2d 1150 (1968).

In Florida, a technical variance between the summons and the complaint which does not result in prejudice to the defendant does not serve to invalidate the service.1 See Walker Fertilizer Co. v. Race, 123 Fla. 84, 166 So. 283 (1936).

Accord Goldberg v. Weiner, 480 F. 2d 1067 (9th Cir.1973); Berhalter v. Irmisch, 75 F.R.D. 539 (W.D.N.Y.1977); SCM Corp. v. Brother International Corp., 316 F.Supp. 1328 (S.D.N.Y.1970); Lumbermens Mutual Casualty Co. v. Borden Co., 268 F.Supp. 303 (S.D.N.Y.1967).

Thus, the trial court did not abuse its discretion in ruling that service on American’s resident agent, though containing this technical deficiency, did not result in deprivation of notice and was sufficient to preclude invalidation of otherwise adequate service of process. Its determination is, accordingly, upheld.

Affirmed.

. The Texas cases on which American relies, see Dan Edge Motors, Inc. v. Scott, 657 S.W. 2d 822 (Tex.Civ.App.1983), and Stafford Constr. Co., v. Martin, 531 S.W. 2d 667 (Tex.Civ.App.1975), are inapposite.

First, as was pointed out in McMillon v. Harrison, 66 Fla. 200, 63 So. 427 (1913), Texas cases invalidating judgments because of technical defects in the return of service have become so entrenched in that state "as to compel the courts to treat as waste paper judgments founded upon such returns." Id. at 203, 63 So. at 427. Florida courts are not so bound. Id. at 203, 63 So. at 427. See Walker Fertilizer Co. v. Race, 123 Fla. 84, 166 So. 283 (1936).

Second, the Texas cases relied on are post-default judgment cases in which a defendant has never been afforded the opportunity to contest sufficiency of service. Here, in contrast, American, technically improperly named in service of process, but admittedly afforded adequate notice of the claim against it, has had a full and fair opportunity to contest the alleged insufficiency in process prior to being required to file an answer.

Finally, the applicable Florida rule of procedure, unlike the applicable Texas rule, does not void process because of variation from forms of service which are otherwise sufficient.


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Citator

Cited By

  • Richardson v. Albury, 505 So. 2d 521 (Fla. 2d DCA 1987)
    …is to give a defendant proper notice that it is answerable to a plaintiff’s claim, to advise the defendant as to the nature of that claim, and to afford the defendant an opportunity to defend against it.” American Hospital of Miami, Inc. v. Nateman, 498 So. 2d 444, 445 (Fla. 3d DCA 1986). This court has previously held that “sections 48.081 and 48.091 provide the exclusive means of effecting service of process on an active corporation, and these provisions must be strictly construed.” Dade Erection Services,…
  • …t give notice “to the defendant in the case that he is answerable to the claim of plaintiff.” Id. (emphasis supplied). Ramos was not a defendant in Ms. Seymour’s case. Similarly, this Court’s decision in American Hospital of Miami, Inc. v. Nateman, 498 So. 2d 444, 445 (Fla. 3d DCA 1986), employed a broad definition of “notice” regarding a summons. In that case, John Mudd was served “as Resident Agent for American Hospital of Miami, Inc.,” and the “complaint that accompanied the summons named American, not Jo…
  • Zoe Gail McLENDON v. Helen Marie (Farley) Smith, 589 So. 2d 410 (Fla. 5th DCA 1991)
    …nization v. Harry Rich Corp., 374 So. 2d 81 (Fla. 3d DCA 1979) (“Proper service of process is indispensable to the jurisdiction of a court to adjudge the competing claims of parties to a litigation.”). In American Hospital of Miami, Inc. v. Nateman, 498 So. 2d 444 (Fla. 3d DCA), review denied, 500 So. 2d 543 (Fla.1986), on the summons, after the directions to the sheriff to serve the summons and a copy of the complaint on the defendant, were the typewritten words: “John Mudd ... As Resident Agent for AMERICAN…

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