RENEE TULPERE, APPELLANT,
v.
DUVAL FEDERAL SAVINGS & LOAN ASSOCIATION OF JACKSONVILLE, ETC., ET AL., APPELLEES
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In this second appeal, the court reversed the trial court's approval of constructive service by publication against appellant Tulpere, finding that the amended affidavit failed to establish sufficient facts that she had concealed herself or was absent from the state as required by Florida statute.
The court held that the allegations in the amended affidavit—that service was attempted numerous times and neighbors indicated appellant was in Europe—were insufficient to support a finding of concealment or absence. The court reasoned that neighbors' statements that appellant was in Europe could merely indicate a vacation rather than prolonged absence or concealment.
[1] A sworn statement for constructive service of process must allege sufficient facts to satisfy statutory requirements regarding the defendant's residence or concealment.
[2] Allegations that service was attempted numerous times and that neighbors indicated a defendant was in Europe are insufficient to support a finding of concealment for cons…
Previewing 2 of 4 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“Simply stating that defendant's residence - is unknown and that one attempt was made at service is insufficient under [the] circumstances.”
The court's standard from the first appeal establishing that conclusory allegations without factual support are inadequate for constructive service.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe appellant was sued by Duval Federal Savings & Loan Association. After this court previously reversed constructive service based on an insufficient…
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PER CURIAM.
Deja vu! Appellant asks this court to set aside a second constructive service of process upon her in the case below.
In Tulpere v. Duval Federal Savings and Loan Association of Jacksonville, 548 So. 2d 1190, 1191 (Fla. 4th DCA 1989), this court reversed appellee’s first constructive service upon appellant and held, “Simply stating that defendant’s residence - is unknown and that one attempt was made at service is insufficient under [the] circumstances.”
Section 49.041, Florida Statutes (1987), governing constructive, service states in part:
The sworn statement of the plaintiff, his agent or attorney, for service of process by publication against a natural person, shall show:
* * * * *
(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 this 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.
It appears from our review of the record that appellee did not attempt to serve appellant after our previous decision, but merely amended its first affidavit to read in pertinent part:
4. That the Defendant, RENEE TUL-PERE has concealed herself so that process cannot be personally served upon her, and affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed Defendant. This fact is supported by the return of service which states that ‘service was attempted numerous times and one time was told by neighbors that MS. TULPERE was in Europe. Although water and electric was on at the above address, I was unable to find anyone at home or to even determine if anyone was living there.’
Again, we reverse. The amended affidavit does not allege sufficient facts to satis fy the requirements of section 49.041(3)(c). We hold the allegations that service was attempted numerous times and that neighbors indicated appellant was in Europe to be insufficient to support a finding of concealment. The neighbors could have meant that appellant was on vacation.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
WARNER, POLEN and GARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hobe Sound Indus. Park, Inc. v. First Union Nat'l Bank OF Fla., 594 So. 2d 334 (Fla. 4th DCA 1992)…an order denying appellants’ motion to quash service of process by publication under chapter 49, Florida Statutes. The plaintiffs’ affidavit for constructive service is facially insufficient. Tulpere v. Duval Fed. Sav. & Loan Ass’n of Jacksonville, 575 So. 2d 801 (Fla. 4th DCA 1991); Wiggam v. Bamford, 562 So. 2d 389 (Fla. 4th DCA 1990); Bodden v. Young, 422 So. 2d 1055 (Fla. 4th DCA 1982). The affidavit provided only that affiant did the following as a diligent search: (a) Checked the records of the clerk…
Authorities Cited
- Paschal v. A.M. "Tony" Fontana, 548 So. 2d 1190 (Fla. 4th DCA 1989)