THAIR GONDAL, APPELLANT,
v.
MARIA MARTINEZ AND MIGUEL MARTINEZ, APPELLEES
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Service on the secretary of state is ineffective if the complaint fails to allege the defendant's nonresidency or concealment.
Plaintiff attempted service on the secretary of state, but the complaint did not allege the defendant was a nonresident or concealing their whereabout…
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PER CURIAM.
Where a complaint fails, as here, to allege that the defendant is a nonresident of the State, or a resident of Florida who subsequently became a nonresident, or a resident of Florida concealing his whereabouts, service on the secretary of state is ineffective to obtain jurisdiction over the defendant. Journell v. Vitanzo, 472 So. 2d 827 (Fla. 4th DCA1985).
Filing of an affidavit of diligent search and inquiry over seven hundred days after the complaint was filed, and while a motion to dismiss filed pursuant to rule 1.070(j),1 Florida Rules of Civil Procedure, was pending, did not preclude the dismissal as the affidavit did not cure the complaint defect, nor did it constitute good grounds to deny the rule 1.070® motion. See Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla.1992) (fact that process was served prior to filing of defendant’s rule 1.070® motion to dismiss did not give court discretion to deny motion).
Reversed.
. (j) Summons-Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service was not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the court’s own initiative after notice or on motion.
Cases With Similar Vibessemantic neighbors from the corpus
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Berge O. Khandjian and Tuula Khandjian v. Compagnie Financiere Mediterranee Cofimed, S.A., 619 So. 2d 348 (Fla. 2d DCA 1993)…iff had admitted noncompliance with the statutory requirement of serving the Department of Insurance. The only other post-Morales decision we have found in which the court reviewed a nonfinal order denying a motion to dismiss is Gondal v. Martinez, 606 So. 2d 490 (Fla. 3d DCA 1992). In Gondal, the court reviewed an order denying a motion filed pursuant to rule 1.070(j). Although the court did not comment on its jurisdiction to review the order of denial, the facts provided indicate that service on the secret…
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Comisky v. Rosen Mgmt. Serv., Inc., 630 So. 2d 628 (Fla. 4th DCA 1994)…soned that the validity of the service of process itself was defective, not merely the timeliness thereof. As a result, the order was appealable under rule 9.130(a)(3)(C)(i), because it determined jurisdiction over the person. In Gondal v. Martinez, 606 So. 2d 490 (Fla. 3d DCA 1992), the court did not discuss the jurisdictional issue, but again, the service of process itself was defective and was insufficient to obtain jurisdiction over the defendant. Thus, the court exercised its jurisdiction pursuant to rul…
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Crews v. Shadburne, 637 So. 2d 979 (Fla. 1st DCA 1994)…good cause for failure to obtain proper service of process within 120 days of the filing of plaintiffs’ complaint.” However, upon consideration of Shadburne’s motion for rehearing on the motion to dismiss, which relied solely on Gondal v. Martinez, 606 So. 2d 490 (Fla. 3d DCA 1992), the trial court- entered an order granting rehearing and dismissing the complaint. On appeal, the Crewses submit that the trial court’s initial order denying the motion to dismiss was consistent with the rationale of the holding…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla. 1992)
- Dalton Journell v. Vitanzo, 472 So. 2d 827 (Fla. 4th DCA 1985)