MANUEL GREEN, APPELLANT,
v.
EUGENIE NASHNER, APPELLEE
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Manuel Green appeals from an order denying his motion to quash service of process in a case where the plaintiff attempted to serve him as a non-resident defendant. The court reversed, holding that the plaintiff failed to establish a sufficient connection between Green and the Detroit, Michigan address to which process was sent, and strict compliance with Florida's non-resident service statute was not demonstrated.
The court held that the affidavits and exhibits were insufficient to demonstrate strict compliance with the statute. The plaintiff failed to show any connection between the defendant and the Detroit address to which process was mailed, and where service of process is based on strict compliance with a statute, strict compliance must be shown.
“where service of process is based upon strict compliance with a statute, strict compliance must be shown”
Establishes the governing legal standard requiring strict adherence to statutory service requirements
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Join FLexlaw to unlock all legal intelligencePlaintiff Eugenie Nashner filed an amended complaint alleging Manuel Green was a non-resident of Florida and attempted service under Florida's non-res…
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The defendant, Manuel Green, brings this interlocutory appeal from an order which denied his motion to quash service of process. The service of process was attempted pursuant to § 48.161, Fla.Stat., F.S.A. under authority of § 48.171, Fla.Stat., F.S.A. At the time the order appealed was entered, these sections were numbered 47.30 and 47.29, respectively, but no difference relevant to this case was caused by the renumbering.
The plaintiff-appellee filed an amended complaint alleging that Manuel Green was a non-resident of the State of Florida. Process was served upon the Secretary of State and two affidavits of plaintiff’s counsel were .filed. These affidavits reflected that notice of service upon the Secretary of State and a copy of the complaint and summons were mailed to the defendant at a Detroit, Michigan, address. The source of the address is not shown by the affidavits. The affidavits show that the affiant became convinced that the defendant was concealing his whereabouts and that the plaintiff was unable to locate the defendant even after having employed a credit bureau to trace him. The affidavit shows beyond doubt that the attorney for the plaintiff made an adequate search to find the defendant’s home address. Attached to the affidavits was a letter containing a notice of service and a copy of the process which was returned unclaimed. There was also a letter from the Superintendent of Mails in Detroit, Michigan, which stated that the occupants of the dwelling at the Detroit address referred to above had no idea where the defendant was and that the defendant had failed to leave a forwarding address.
The defendant-appellant filed a motion to quash urging that the service of process was insufficient under the previously cited sections. The motion was denied and this appeal followed.
The question is whether the affidavits and the attached exhibits are sufficient to demonstrate that the appellant was served with process in accordance with §§ 48.171 and 48.161. We hold that they are not and reverse.
From the record it appears that the appellee failed to show any connection between the defendant and the address to which she chose to send the letter containing process. There may well be such a connection, but where service of process is based upon strict compliance with a statute, strict compliance must be shown. See McGee v. McGee, 156 Fla. 346, 22 So.2d 788 (1945).
Appellee relies upon our decision in Steedman v. Polero, Fla.App.1966, 181 So.2d 202, for affirmance of the order denying the motion to quash service of process. That case is not applicable to the case at bar since it dealt with service upon a resident defendant who was concealing himself. In Zarcone v. Lesser, Fla.App.1966, 190 So.2d 805, we pointed out that “The return of the registered mail notices to the defendants, “Unclaimed,” presented a justiciable question as to the validity of the service, under the defendants’ motion challenging service.” We also pointed out that if the failure of delivery was not caused by a defendant-addressee’s rejection of the mail and might have resulted from a cause not chargeable to the defendant, then *494the statute would not have been complied with. We think that reasoning is applicable here.
The order denying the defendant’s motion to quash service is reversed. The cause is remanded for the entry of an order quashing service and for such further proceedings as the trial court may deem proper.
Reversed and remanded with directions.
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Cited By (11 total)
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Canzoniero v. Canzoniero, 305 So. 2d 801 (Fla. 4th DCA 1975)…91 Fla. 770, 108 So. 820 (1926); Crews v. Rohlfing, 285 So. 2d 433 (3d D.C.A.Fla.1973); Naples Park-Vanderbilt Beach Water District v. Downing, 244 So. 2d 464 (2d D.C. A.Fla.1971); Gmaz v. King, 238 So. 2d 511 (2d D.C.A.Fla.1970); Green v. Nashner, 216 So. 2d 492 (3d D.C.A.Fla.1968). Further, the court should satisfy itself of the bona fides of the plaintiff in attempting to make constructive service. Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933); McDaniel v. McElvy, supra; Green v. Nashner, supra; Lars…
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Callaghan v. Blanche D. Callaghan, 337 So. 2d 986 (Fla. 4th DCA 1976)…rther, the court should satisfy itself of the bona fides of the plaintiff in attempting to make constructive service. Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933); McDaniel v. McElvy, supra; [91 Fla. 770, 108 So. 820] Green v. Nashner, supra; [216 So. 2d 492] Larsen v. Larsen, 180 So. 2d 393 (1st DCA Fla. 1965). . . . the test is whether the complainant reasonably employed the knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstance…
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Fischer v. Plastiline, Inc., 379 So. 2d 697 (Fla. 2d DCA 1980)…Etc. v. McCurdy, 340 So. 2d 544, 545-46[1] (Fla.lst DCA 1976). That burden can include an obligation “to show [the] connection between the defendant and the address to which [plaintiff] chose to send the letter containing process.” Green v. Nashner, 216 So. 2d 492, 493[1, 2] (Fla.3d DCA 1968). Applying those rules to the facts at bench, we think that when the face of a record reveals a mailing to a certain address, and a signed acceptance of that mail at that address, the party attacking the service bears a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Millie Dooley McGee v. McGee, 156 Fla. 346 (Fla. 1945)
- Zarcone v. Lesser, 190 So. 2d 805 (Fla. 3d DCA 1966)
- Steedman v. Polero, 181 So. 2d 202 (Fla. 3d DCA 1965)
- GAY Gainer and H. A. Gainer v. Town OF Altamonte Springs, 156 Fla. 346 (Fla. 1945)