FLORENCE UPSHAW, APPELLANT,
v.
DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLEE
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Florence Upshaw appealed a summary judgment dismissing her action to enjoin demolition of her home by Dade County. The court reversed, holding that a genuine factual dispute existed regarding whether constructive service of process was proper under the applicable statute, which required resolution before the circuit court could be deemed without jurisdiction.
The court reversed the summary judgment because a genuine issue of fact existed regarding whether constructive service was proper. The statute required establishment that the property owner was susceptible to constructive service for one of the specified reasons, and Upshaw's allegation that she was available for personal service contradicted the County's assertion that she was concealing herself. This factual dispute had to be resolved before the circuit court could determine jurisdiction.
[1] A court lacks jurisdiction if constructive service of process is not properly established according to statutory requirements.
[2] The effectiveness of constructive service of process depends upon the factual establishment of grounds for such service as provided by statute.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Inasmuch as the special act does not provide an affidavit as a basis for constructive service, the effectiveness of the constructive service must depend upon an establishment in the record of the fact that the property owner is susceptible to constructive service because of one of the reasons set out in the act.”
Establishes the standard for valid constructive service—requires proof in the record of a statutory ground, not merely an affidavit allegation.
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Join FLexlaw to unlock all legal intelligenceDade County ordered demolition of Upshaw's home based on an unsafe structures determination by the City of Miami Building Department. The County attem…
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This is an appeal by the plaintiff from a summary final judgment which dismissed her complaint upon the ground that the facts without genuine issue demonstrated that the circuit court was without jurisdiction. Appellant’s complaint sought to enjoin the demolition of her home. The allegations of the sworn complaint and the affidavit of the condemning authority reveal that the demolition was ordered .by the County Commission of Dade County based upon an order by the City of Miami Building Department. After a hearing before the Unsafe Structures and Housing Appeals Board, the County proceeding under chapter 24314, Laws of Florida, 1947, attempted personal service upon the appellant; two summonses were issued and each time returned “unable to locate.” The service of a notice in conformity with the laws providing for the service of a summons at law is provided in the special act. The act further provides for publication of a constructive notice in the event:
(a) The owner is concealing himself, or
(b) absent from the State, or
(c) a non-resident of the State, or
(d) because his residence is unknown, or
(e) because he is unknown.
The County proceeded with a publication of a constructive notice. It is now contended that the return of the sheriff “unable to locate” establishes that appellant was “concealing herself” and that therefore the constructive service of process is good.
The trial judge reached the conclusion that the service of process was good and that therefore appellant had no remedy in the circuit court because the act provides that an appeal from an action of the Board of County Commissioners must be taken within ten days of the action of that body.
Our review of the record convinces us that there was an issue as to whether the constructive service of process was good. Inasmuch as the special act does not provide an affidavit as a basis for constructive service, the effectiveness of the constructive service must depend upon an establishment in the record of the fact that the property owner is susceptible to constructive service because of one of the reasons set out in the act.
In the present instance, appellant’s sworn complaint alleges that she was at all times available for personal service of the notice and that she lived on the property each day that personal service was attempted. The County in effect, contested the allegations of the sworn complaint by its affidavit in support of the summary judgment. It alleged that the appellant was concealing herself. We think that the resolution of this issue of fact is essential to the determination of jurisdiction in the circuit court. It is apparent that if notice was not properly given to the appellant, the ten day limit cannot apply. To hold otherwise would be to approve a demolition proceeding in which the statute was not complied with and due process of law would not have been accorded appellant. Compare Outler v. Berman, Fla.App.1970, 234 So.2d 724; Young Spring & Wire Corp. v. Smith, Fla.1965, 176 So.2d 903; McGee v. McGee, 156 Fla. 346, 22 So.2d 788 (1945), *339with Rowland v. State ex rel. Martin, 1937, 129 Fla. 662, 176 So. 545.
We reverse the summary judgment entered and remand the cause for trial of the issue specified.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- O'Neill v. Adams, 176 So. 2d 903 (Fla. 1965)
- Millie Dooley McGee v. McGee, 156 Fla. 346 (Fla. 1945)
- Rowland v. State, 129 Fla. 662 (Fla. 1937)
- GAY Gainer and H. A. Gainer v. Town OF Altamonte Springs, 156 Fla. 346 (Fla. 1945)
- Outler v. Hyman Berman, 234 So. 2d 724 (Fla. 3d DCA 1970)