GAY STOEFFLER, APPELLANT/CROSS APPELLEE,
v.
PAUL CASTAGLIOLA AND RIDEN ASSOCIATES SERVICES CORP., A DISSOLVED FLORIDA CORPORATION, F/K/A RIDEN & GOLDSTEIN, P.A. F/K/A RIDEN, WATSON & GOLDSTEIN, P.A., APPELLEES/CROSS APPELLANTS

Fla. 2d DCA | 1993-11-10
No. 92-04274
DANAHY, A.C.J., and ALTENBERND, J., concur.
629 So. 2d 196 Florida District Court of Appeal, Second District (1993) Negative Treatment
Cited by 31 cases

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Synopsis

The appellate court affirmed the quashing of service on an individual defendant but reversed his dismissal, and reversed the denial of a motion to quash service on a dissolved corporation, remanding for further proceedings.


Holding

Service on an individual must comply with personal service statutes, and service on a dissolved corporation must follow the specific statute for dissolved corporations, not general corporate statutes.


Headnotes

[1] Service of process on an individual by serving a business manager at the offices of a different corporation, where the individual is employed, is insufficient to establis…

[2] Service of process on a dissolved corporation must be made upon one or more of its directors as trustees, as dictated by the specific statute governing service on dissolv…

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Facts & Procedural History

The plaintiff attempted to serve a former employee and a dissolved corporation by serving a business manager at the offices of a different, active cor…

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Opinion of the Court
PARKER, Judge.

PARKER, Judge.

Gay Stoeffler appeals a nonfinal order quashing service on Paul Castagliola and dismissing him as a defendant in a legal malpractice case. The codefendant, Riden Associates Services Corporation (Riden I), a dissolved corporation, appeals the portion of the nonfinal order denying the motion of Riden I to quash service of process on Riden I. We affirm the trial court’s order which quashed service on Castagliola; however, we reverse the dismissal of Castagliola. Further, we conclude that the trial court erred by not quashing the service on Riden I and, accordingly, remand for further proceedings.

The record supports that Stoeffler failed to serve both Castagliola and Riden I properly. At the time of the attempted service of process, Castagliola, a former employee of Riden I, was employed by Riden, Earle, & Kiefner, P.A., (Riden II), a different corporation. Stoeffler attempted to serve both Riden I and Castagliola by serving the business manager at the offices of Riden II. First, service on the business manager does not satisfy the requirements for obtaining personal service on an individual pursuant to section 48.031, Florida Statutes (1991).1 The record does not support that Castagliola waived personal service, that he tried to evade service, nor that he gave anyone authority to accept process for him. See Hauser v. Schiff, 341 So. 2d 531 (Fla. 3d DCA 1977). Therefore, the trial court did not err in quashing service of process on Castagliola.

As to Stoeffler’s attempted service of process on Riden I, section 48.101, Florida Statutes (1991)2 specifically directs that service of process upon a dissolved corporation “shall” be made upon one or more of the directors as trustees of the dissolved corporation. Stoeffler argues that pursuant to section 607.1405(2)(g)3 service can be made upon the registered agent of a dissolved corporation because the dissolution does not terminate the authority of the registered agent. Chapter 607 does not address specifically how process should be made on a dissolved corporation; whereas, section 48.101 does provide for that occurrence. Because section 48.101 is the specific statute governing process, it controls the method to be utilized to serve a dissolved corporation. See Palm Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249, 251 (Fla.1987). Additionally, in East Auto Supply Company, Inc. v. Anchor Mortgage Services, Inc., 502 So. 2d 976 (Fla. 4th DCA 1987), the Fourth District held that it was not error to serve the registered agent of a corporation while it was temporarily dissolved because once reinstated the corporation was deemed to have continued without interruption. It can be inferred that if the corporation had not been reinstated that service would have been invalid. Accordingly, we conclude that the service on Riden I was invalid.

Even though service of process against both Castagliola and Riden I was invalid, the action against both should remain pending because service, although invalid, was made within the 120-day limit pursuant to Florida Rule of Civil Procedure 1.070(j). In Payette v. Clark, 559 So. 2d 630, 633 (Fla. 2d DCA 1990), this court held that “[w]hen an invalid method of service is used, the proper procedure is to quash the service and permit the action to remain pending.” In this case, the first attempt at service was made within the 120-day limit. Accordingly, the trial court erred in dismissing the action against Castagliola.

We affirm the quashing of service on Cas-tagliola and direct the trial court to quash the service on Riden I. Further, we reverse the dismissal of Castagliola and remand this case for further proceedings.

DANAHY, A.C.J., and ALTENBERND, J., concur. . Section 48.031(1) and (2)(a), (b) provide:

Service of process generally; service of witness subpoenas.—

(1) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.

(2)(a) Substitute service may be made on the spouse of the person to be served at any place in the county, if the cause of action is not an adversary proceeding between the spouse and the person to be served, if the spouse requests such service, and if the spouse and person to be served are residing together in the same dwelling.

(b) Substitute service may be made on an individual doing business as a sole proprietorship at his place of business, during regular business hours, by serving the manager of the business if one or more attempts to serve the owner have been made at the place of business.

. Section 48.101 provides:

Service on dissolved corporations.—

Process against the directors of any corporation which is dissolved as trustees of the dissolved corporation shall be served on one or more of the directors of the dissolved corporation as trustees thereof and binds all of the directors of the dissolved corporation as trustees thereof.

. Section 607.1405(2)(g) provides, in part,

Effect of dissolution—

(2) Dissolution of a corporation does not:

(g) Terminate the authority of the registered agent of the corporation.

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Citator

Cited By (16 total)

  • Anthony v. Gary J. Rotella & Assocs., P.A., 906 So. 2d 1205 (Fla. 4th DCA 2005)
    …registered agent himself. This court held that the service was not authorized by section 48.081, Florida Statutes, and therefore was grounds for vacating a default judgment of the corporate defendant. Id. at 1266; See also Stoeffler v. Castagliola, 629 So. 2d 196 (Fla. 2d DCA 1993) (affirming the lower court’s order quashing service of process because “service on the business manager does not satisfy the requirements for obtaining personal service on an individual pursuant to section 48.031, Florida Statutes…
    1 / 2
  • Nationsbank, N.A. v. Ziner, 726 So. 2d 364 (Fla. 4th DCA 1999)
    …shes its objective. Id. Thus, dismissal of an action is improper where service, albeit invalid, is effected within the 120-day period. Id. The reasoning for this latter proposition traces back to the following language from Stoeffler v. Castagliola, 629 So. 2d 196 (Fla. 2d DCA 1993), rev. den., 639 So. 2d 976 (Fla.1994): Even though service of process against both [defendants] was invalid, the action against both should remain pending because service, although invalid, was made within the 120-day limit pursu…
  • Sneed v. H.B. Daniel Constr. Co., Inc., 674 So. 2d 158 (Fla. 5th DCA 1996)
    …this court is whether the Sneeds’ service of process on Mr. Gris-sett was sufficient to satisfy the 120-day requirement of the rule. We join the second and third districts in answering this question in the affirmative. In Stoeffler v. Castagliola, 629 So. 2d 196 (Fla. 2d DCA 1993) rev. denied, 639 So. 2d 976 (Fla.1994), the plaintiff served process on the wrong person within 120 days of the date of filing his complaint. The second district concluded that it was improper to dismiss the action even though the…

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