IRWIN S. REVER, HERMAN FIEDELBAUM AND NYACK HOLDING CO., INC., APPELLANTS,
v.
MORRIS LAPIDUS, STEPHEN F. KESSLER, IRWIN S. GARS AND LEON A. ROTH, APPELLEES
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This interlocutory appeal addresses whether defendants were properly served with process and whether the trial court correctly denied their motions to dismiss based on insufficient service and lack of personal jurisdiction. The court holds that while affidavits asserting lack of business activity in Florida are insufficient to support dismissal, the service on individual defendants was defective due to failure to execute the required affidavit, but the service on the corporate defendant was proper.
The court affirmed in part and reversed in part. The affidavits submitted by individual defendants asserting non-engagement in business in Florida were insufficient to support dismissal as they amounted to legal conclusions. However, service on the individual defendants was defective because the affidavit required by § 47.30 was not properly executed—it was signed only by the attorney without proper verification. Service on the corporate defendant was proper because § 47.37 does not require attempts to serve other officers when service is made on the resident agent, and a resident agent cannot unilaterally resign without following statutory procedures.
“We hold that the affidavits submitted were not sufficient to constitute a basis for the dismissal of these defendants, because the affidavits amounted to nothing more than the assertion of legal conclusions.”
Establishes that conclusory statements about lack of business activity in Florida are insufficient to support a motion to dismiss for lack of jurisdiction.
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Join FLexlaw to unlock all legal intelligenceLapidus, as plaintiff, sued individual defendants Rever and Fiedelbaum and Nyack Holding Co., Inc., a Florida corporation. Service was attempted pursu…
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This is an interlocutory appeal at common law from an order denying defendants’ motions to dismiss made on the grounds of insufficiency of service of process and lack of jurisdiction over the person. See Rule 4.2, subd. a, Florida Appellate Rules, 31 F.S.A. The appellee, Lapidus, as plaintiff brought a suit against certain individuals including Irwin Rever and Herman Fiedel-baum and Nyack Holding Co., Inc., a Florida corporation. Service was had upon the above-named individual defendants pursuant to the provisions of §§ 47.16 and 47.30 Fla.Stat., F.S.A.
Rever and Fiedelbaum filed affidavits in which they stated that they did not operate, conduct, engage in, or carry on any business venture in the State of Florida. .We hold that the affidavits submitted were not sufficient to constitute a basis for the dismissal of these defendants, because the affidavits amounted to nothing more than the assertion of legal conclusions.
It appears from the record, however, that the service upon these defendants was faulty in that the affidavit required of the1 plaintiff by § 47.30, Fla.Stat., F.S.A. was not executed. The affidavit is signed by the attorney only and fails to include a verification. The affidavit required by this section is necessary for the completion of service; therefore, it is jurisdictional and the service without it is not sufficient.
One additional point on appeal should be mentioned. The appellant, Nyack Corporation, attacks the service upon it on the basis that no attempt was made to serve an .officer other than the resident agent. It also filed in the trial court an affidavit of the resident agent that he no longer had contact with the corporation. The court correctly denied the motion to dismiss filed by the corporation upon each of these grounds. Section 47.37, Fla.Stat., F.S.A. does not require an attempt to serve other *63officers where service is upon the resident agent. Further § 47.17, Fla.Stat., F.S.A. which establishes an order of precedence as to service upon corporate officers does not apply to service of process on a resident agent. Section 47.50, Fla.Stat., F.S.A. provides the method whereby designation of the resident agent may be removed from the records of the Secretary of State. Until this procedure is followed, a resident agent cannot unilaterally resign or remove himself.
Affirmed in part and reversed in part.
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Martin Acquadro, M.D. v. Bergeron, 851 So. 2d 665 (Fla. 2003)…gs, 638 So. 2d 582, 583 (Fla. 1st DCA 1994); Atlas Aircraft Corp. v. Buckingham, 302 So. 2d 163, 164 (Fla. 4th DCA 1974). Additionally, the affidavits submitted must contain something “more than the assertion of legal conclusions.” Rever v. Lapidus, 151 So. 2d 61, 62 (Fla. 3d DCA 1963). In response to the allegations in the complaint, Rose Ac-quadro filed an affidavit in conjunction with her motion to dismiss, which stated in pertinent part: “I did not make defamatory statements about Bergeron.” Therefore, r…
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Orange Motors OF Coral Gables, Inc. v. Rueben H. Donnelley Corp. & Fritchman Assocs., Inc., 415 So. 2d 892 (Fla. 3d DCA 1982)…e an amended complaint and did so. Orange Motor’s first argument on appeal is the impropriety of the court’s order vacating the default. We entirely agree with the trial court’s determination that the default judgment was void. In Rever v. Lapidus, 151 So. 2d 61 (Fla. 3d DCA 1963), this court held that the affidavit required by Section 47.30, Florida Statutes (1963) (the predecessor to Section 48.161, supra), is jurisdictional and completion of service without it is not sufficient. Secondly, the plaintiff’s…
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