TED ARISON, APPELLANT,
v.
ROBERT OFFER AND OFFER & ASSOCIATES INTERNATIONAL, INC., APPELLEES
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The court reversed the trial court's denial of a motion to quash service of process because the defendant failed to comply with the statutory requirement to send notice to the nonresident defendant "forthwith" under Florida Statutes section 48.161, waiting 68 days instead.
Service of process must be quashed when a plaintiff fails to comply with the statutory requirement to send notice to a nonresident defendant "forthwith" under section 48.161, Florida Statutes, regardless of whether the defendant was prejudiced by the delay.
[1] Substituted service on a nonresident defendant pursuant to section 48.161, Florida Statutes, must be quashed when notice is not sent to the defendant "forthwith" after se…
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Join FLexlaw to unlock all legal intelligence“Where the plaintiff has failed to comply with the notice requirements of the statute, service must be quashed.”
Court explaining the mandatory nature of quashing service when statutory notice requirements are violated.
Arison was served as a nonresident defendant through substituted service on the secretary of state, but notice was not sent to him until 68 days after…
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GUNTHER, Judge.
We reverse the trial court’s order denying Ted Arison’s motion to quash service of process.
In the case at bar, appellee utilized substituted service to effectuate service on Arison pursuant to section 48.161, Florida Statutes (1991). Section 48.161 requires that notice of service on the secretary of state be sent to the nonresident defendant “forthwith.” In Parish Mortgage Corp. v. Davis, 251 So. 2d 342 (Fla. 3d DCA), cert. denied, 254 So. 2d 789 (Fla.1971), the third district found that a delay of thirty-seven days was not “forthwith.” Here, the notice was sent sixty-eight days after the secretary of state accepted service. The appellees do not dispute that they failed to comply'with the statutory time limits. However, they argue that the trial court had the authority to excuse their noncompliance because the appellant faded to demonstrate that he was prejudiced by the delay. They offer no legal support for this argument and we can find none. Where the plaintiff has failed to comply with the notice requirements of the statute, service must be quashed. Sierra Holding, Inc. v. Sharp Elecs. Corp., 471 So. 2d 196, 197 (Fla. 4th DCA 1985).
Accordingly, we agree with Arison’s contention that the order must be reversed because appellee failed to comply with the strict requirements of section 48.161, Florida Statutes (Supp.1990), when he failed to mail the notice of service and a copy of the process to the appellant “forthwith,” but waited 68 days after service on the secretary of state to do so.
REVERSED.
POLEN and KLEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Arison v. Offer, 669 So. 2d 1128 (Fla. 4th DCA 1996)…iling of the complaint. After the trial court denied Arison’s motion to quash that service, he appealed to this court, and we reversed because the substituted service did not comply with section 48.161, Florida Statutes (Supp.1990). Arison v. Offer, 626 So. 2d 1039 (Fla. 4th DCA 1993). [*1129] Following our reversal plaintiff promptly served Arison in Israel through the Hague Convention; however, that service occurred more than 120 days after the filing of the complaint, and Arison moved to dismiss. The trial…
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John Green Corp. v. Coello, 635 So. 2d 127 (Fla. 3d DCA 1994)…v. Davis, 251 So. 2d 342 (Fla. 3d DCA), cert, denied, 254 So. 2d 789 (Fla.1971), that a delay of 37 days in mailing notice of service and a copy of the process is excessive and does not comply with the statute. Id. at 343; see also Arison v. Offer, 626 So. 2d 1039,1040 (Fla. 4th DCA 1993). See generally Logan v. Mora, 555 So. 2d 1267, 1268 (Fla. 3d DCA 1989). As the time delay involved here exceeds that which occurred in Parish Mortgage Corp., we are obliged to quash service of process. This ruling is, of co…
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Smith v. Alvarado, 737 So. 2d 630 (Fla. 4th DCA 1999)…at. (1997). We agree with the appellants. Plaintiff failed to mail the notice of service and a copy of the process to appellant Randall Smith d/b/a Smith Trucking “forthwith,” but rather mailed it approximately 115 days later. See Arison v. Offer, 626 So. 2d 1039 (Fla. 4th DCA 1993). Additionally, the plaintiffs failed to file an affidavit of compliance with the court “on or before the return day of the process or within such time as the court allows,” See § 48.161(1). Accordingly, we agree with appellants…
Authorities Cited
- Parish Mortg. Corp. v. Lowry W. Davis and Guion T. De Loach, 251 So. 2d 342 (Fla. 3d DCA 1971)
- State v. Ross, 471 So. 2d 196 (Fla. 4th DCA 1985)
- State v. Gustafson, 254 So. 2d 789 (Fla. 1971)
- McALLISTER v. State, 254 So. 2d 789 (Fla. 1971)