SAMUEL CABAN AND RUTHIE CABAN, HIS WIFE, APPELLANTS,
v.
DR. LOUIS SKINNER, APPELLEE
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PER curiam:.
Samuel and Ruthie Caban appeal an order dismissing a negligence action for failure to serve properly defendant Louis Skinner within the 120-day period after filing of the complaint. The Cabans served process on an employee at Skinner’s residence during the 120-day period. Skinner sought dismissal based on invalid service. At the end of the 120-day period Skinner amended the motion seeking dismissal based on the expiration of the service period. Fla.R.Civ.P. 1.070(i). The trial court erred in granting the motion and dismissing the complaint. The trial court may not dismiss the complaint, where, as here, service, albeit invalid service, was effected during the designated time. As the Cabans accurately contend, the proper action is to quash the invalid service. Stoeffler v. Castagliola, 629 So. 2d 196, 198 (Fla. 2d DCA 1993), review denied, .639 So. 2d 976 (Fla.1994). See Payette v. Clark, 559 So. 2d 630 (Fla. 2d DCA 1990); Baraban v. Sussman, 439 So. 2d 1046 (Fla. 4th DCA 1983); Jones v. Denmark, 259 So. 2d 198 (Fla. 3d DCA 1972). Accordingly, the order is reversed and the cause remanded for further proceedings.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
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Anthony v. Gary J. Rotella & Assocs., P.A., 906 So. 2d 1205 (Fla. 4th DCA 2005)…(Fla. 3d DCA 1980). Third, a defending party can agree to accept service of process by mail. Id.; see Barker v. Greenstreet Fin., 823 So. 2d 195 (Fla. 3rd DCA 2002). In Caban v. Skinner, service was made on an employee at the defendant’s residence. 648 So. 2d 251, 251 (Fla. 3d DCA 1994). The third district held that service of process in such a manner was invalid and the trial court should have quashed service of process. Id. Here, Anthony did not waive his right to personal service through any of the three…
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Sneed v. H.B. Daniel Constr. Co., Inc., 674 So. 2d 158 (Fla. 5th DCA 1996)…994), 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 service of process was invalid. In Caban v. Skinner, 648 So. 2d 251 (Fla. 3d DCA 1994), the third district held that dismissal was improper where service, albeit invalid, was effected within the 120-day period. Accord Smith v. Saunders, 652 So. 2d 1187 (Fla. 2d DCA 1995). [*160] In reaching this result we are persua…
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Bice v. Metz Constr. Co., Inc., 699 So. 2d 745 (Fla. 4th DCA 1997)…). Bice stipulated that each attempted service was invalid, but she argued that she had complied with Rule 1.070(f) by attempting service within the 120-day period, relying on Smith v. Saunders, 652 So. 2d 1187 (Fla. 2d DCA 1995); Caban v. Skinner, 648 So. 2d 251 (Fla. 3d DCA 1994); and Stoeffler v. Castagliola, 629 So. 2d 196 (Fla. 2d DCA 1993). In dismissing Bice’s action against the Hoenigs and James Young & Co., the trial court rejected this argument without explanation. Smith, Caban and Stoeffler, as w…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 559 So. 2d 630 (Fla. 4th DCA 1990)
- Jones v. Nan Gay Denmark and John A. Denmark, 259 So. 2d 198 (Fla. 3d DCA 1972)
- Gay Stoeffler v. Castagliola, 629 So. 2d 196 (Fla. 2d DCA 1993)
- Peter F.K. Baraban v. Sussman, 439 So. 2d 1046 (Fla. 4th DCA 1983)