RUBY PALOMINO, APPELLANT,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, APPELLEE

Fla. 3d DCA | 1987-03-03
No. 86-1434
Before NESBITT, BASKIN and JORGENSON, JJ.
504 So. 2d 445 Florida District Court of Appeal, Third District (1987) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Ruby Palomino appealed a trial court order denying her motion to quash service by publication in a mortgage association lawsuit. The Florida appellate court held that the plaintiff's affidavit was facially insufficient to establish the prerequisite threshold for constructive service—the inability to effectuate personal service—because it stated personal service could be effected, thus the trial court lacked jurisdiction.


Holding

The affidavit was facially insufficient to justify constructive service because it affirmatively stated that personal service could be effected, thereby failing to meet the threshold prerequisite requirement of inability to effectuate personal service. The trial court therefore did not acquire jurisdiction over Palomino.


Headnotes

[1] A prerequisite to utilizing constructive service of process is the inability to effectuate personal service.

[2] Statutes permitting constructive or substituted service of process are strictly construed.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“As a prerequisite to utilizing constructive service of process, plaintiff must establish the threshold requirement: inability to effectuate personal service.”

Establishes the foundational legal requirement that must be met before any constructive service method can be used.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Federal National Mortgage Association sued Ruby Palomino and sought to serve her by publication. The mortgage association's affidavit stated that defe…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

Ruby Palomino seeks reversal of the trial court’s order denying her motion to quash service by publication. The affidavit of Federal National Mortgage Association, plaintiff below, states, among other things, that “[d]efendant(s) have concealed themselves [sic] so that process can be personally served upon them [sic].... ” (Emphasis supplied.) Palomino contends that the affidavit was insufficient to support constructive service pursuant to sections 49.011(1), .021(1), .031-041, Florida Statutes (1985). We agree.

As a prerequisite to utilizing constructive service of process, plaintiff must establish the threshold requirement: inability to effectuate personal service. Taylor v. Lopez, 358 So. 2d 69 (Fla. 3d DCA 1978); §§ 49.021(1), .041, Fla.Stat. (1985);1 see Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225 (Fla.1986); see also Burton v. Burton, 448 So. 2d 1229 (Fla. 2d DCA 1984) (constructive service of process proper in dissolution of marriage action when personal service cannot be had); Shefer v. Shefer, 440 So. 2d 1319 (Fla. 3d DCA 1983) (same). Statutes permitting constructive or substituted service of process are strictly construed, and plaintiff has the burden of demonstrating the validity of substituted service. Taylor; Callaghan v. Callaghan, 337 So. 2d 986 (Fla. 4th DCA 1976); Fleischman v. Morris, 260 So. 2d 278 (Fla. 3d DCA 1972); see Young Spring & Wire Corp. v. Smith, 176 So. 2d 903 (Fla.1965); Leviten v. Gaunt, 360 So. 2d 112 (Fla. 3d DCA 1978). In the case before us, plaintiff’s affidavit states that personal service can be effected; the affidavit is therefore facially insufficient to justify the use of constructive service. Thus the trial court did not acquire jurisdiction over Palomino.

Reversed and remanded with directions to quash service of process.

. Section 49.021(1) provides:

49.021 Service of process by publication, upon whom. — Where personal service of process cannot be had, service of process by publication may be had upon any party, natural or corporate, known or unknown, including:
(1)Any known or unknown natural person, and, when described as such, the unknown spouse, heirs, devisees, grantees, creditors or other parties claiming by, through, under or against any known or unknown person, who is known to be dead or is not known to be either dead or alive_ (Emphasis supplied.)

Section 49.041 states:

49.041 Sworn statement, natural person as defendant. — The sworn statement of the plaintiff, his agent or attorney, for service of process by publication against a natural person, shall show:
(1) That diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set forth in said sworn statement as particularly as is known to the affiant; and (2) Whether such person is over or under the age of 18 years, if his age is known, or that his age is unknown; and (3) In addition to the above, that the residence of such person is, either:
(a) Unknown to the affiant; or (b) In some state or country other than this state, stating said residence if known; or (c) In the state, but that he has been absent from the state for more than 60 days next preceding the making of the sworn statement, or conceals himself so that process cannot be personally served upon him, and that affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed defendant. (Emphasis supplied.)
Dissent
JORGENSON, Judge,

JORGENSON, Judge,

dissenting.

I respectfully dissent.

Palomino alleged that the return of service affidavit did not comply with section 49.041, Florida Statutes (1985). The trial court held a hearing at which the burden of demonstrating proper service was upon Federal National. No record of that hearing was made. In denying Palomino’s motion to quash service of process, the trial court had to have found that Federal National had made the necessary diligent search and inquiry. See Johnstone v. J. W. English Enters., Inc., 155 So. 2d 835 (Fla. 3d DCA 1963); § 49.041, Fla.Stat. (1985). Since no record was made of the hearing, we must assume that the trial court acted correctly and inquired into the circumstances of Federal National’s search for Palomino, including the concededly ambiguous assertions made by Federal National in its affidavit. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979). Because of the presumption of correctness of the trial court’s actions and because Palomino has not demonstrated error, I would affirm.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Esmond M. Baynes v. Baynes, 690 So. 2d 662 (Fla. 3d DCA 1997)
    …ated to the equitable distribution of the property. The trial court’s denial of his motion prompted this appeal. It is axiomatic that a statute allowing for constructive service must be strictly construed. Palomino v. Federal Nat’l Mortgage Assoc., 504 So. 2d 445, 446 (Fla. 3d DCA 1987); Shiffman v. Stumpff, 445 So. 2d 1104, 1105 (Fla. 4th DCA 1984); Leviten v. Gaunt, 360 So. 2d 112, 113 (Fla. 3d DCA 1978) (statute providing for substituted service must be strictly construed). The party seeking to invoke the…

Authorities Cited (12 total)

View all 12 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw