ABRAHAM FLEISCHMAN ET AL., APPELLANTS,
v.
DAVID A. MORRIS, APPELLEE
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In this interlocutory appeal, the Florida District Court of Appeal reversed a default judgment against apartment house owners, finding that the trial court improperly granted substituted service of process without sufficient evidence that the defendants were actually concealing their whereabouts as required by statute.
The court reversed the default judgment, holding that substituted service statutes must be strictly construed and that the party seeking to effect such service bears the burden of presenting facts that clearly justify its applicability. The record did not reflect sufficient search and inquiry to establish that each defendant was concealing their whereabouts.
[1] Statutes authorizing substituted service of process must be strictly construed.
[2] A party seeking to effect substituted service bears the burden of presenting facts that clearly justify its applicability.
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Join FLexlaw to unlock all legal intelligence“Statutes providing for substituted service must be strictly construed and one seeking to effect service under it has the burden of presenting facts which clearly justifies its applicability.”
Establishes the legal standard that substituted service requires strict construction and places burden on the party seeking such service.
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Join FLexlaw to unlock all legal intelligenceAppellee filed a second amended complaint against appellants (apartment house owners) on September 16, 1970, alleging negligent operation of the prope…
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This is an interlocutory appeal from an order denying appellants’ (defendants below) motion to vacate default and a final judgment consequent upon such default.
Appellee filed his second amended complaint against appellants September 16, 1970, seeking to recover damages as a result of an alleged negligent operation by the appellants as owners of apartment *279house property. Such complaint, as well as the prior complaints, alleged that each and all of the defendants were residents of Dade County, Florida. No personal service of process under F.S. 48.031, F.S.A. was issued or served pursuant to the second amended complaint. On September 24, 1970, an affidavit was filed on behalf of the appellee to the effect that a letter was written to the manager of the appellants’ apartment house asking for their residence and mailing address and failure to respond to such letter would indicate that defendants were concealing their whereabouts. The affidavit further recited that the manager reported by telephone call to affiant and stated that the defendants live in Peru but he had instructions from them not to write to them or contact them in any way. Appellee then attempted to effect substituted service of process under F.S. 48.161 and F.S. 48.181, F.S.A. A default was entered against appellants on December 15, 1970, and final judgment on March 4, 1971.
Appellants contend that there is no affidavit or pleading setting forth the facts showing that defendants or any one of them were subject to such statutory authorized service of process. Appellee relies on the affidavit which alleges concealment by appellants of their whereabouts for service of process under F.S. 48.161 and F.S. 48.181, F.S.A.
Statutes providing for substituted service must be strictly construed and one seeking to effect service under it has the burden of presenting facts which clearly justifies its applicability. See Young Spring & Wire Corp. v. Smith, Fla.1965, 176 So.2d 903. In the case sub judice, the record reflects that personal service of process was attempted only on one of the defendants against whom'default and judgment was entered even though they were all alleged to be residents of Dade County, Florida. Further, neither the affidavit nor the record reflects that sufficient search and inquiry was actually made to ascertain that each of the appellants were concealing their whereabouts.
Therefore, the order denying defendants’ motion to vacate the default and final judgment thereon is reversed and the cause remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Leviten v. Gaunt, 360 So. 2d 112 (Fla. 3d DCA 1978)…ght to be served, nor in establishing the fact that such party was indeed attempting to conceal himself, the mere filing of an affidavit alleging concealment is an insufficient basis upon which to predicate substituted service. Fleischman v. Morris, 260 So. 2d 278 (Fla. 3d DCA 1072). In the present situation, appellee, at minimum, must follow up the leads received at deposition which deal with persons residing in Dade County, and file the results of his investigation with the court by way of affidavit. Altho…
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Bird v. Int'l Graphics, Inc., 362 So. 2d 316 (Fla. 3d DCA 1978)…y the plaintiff is not enough to establish concealment. The record does not show by affidavit or otherwise that sufficient search and inquiry was actually made to ascertain that the defendant was concealing his whereabouts. Cf. Fleischman v. Morris, 260 So. 2d 278 (Fla. 3d DCA 1972). Therefore, the order denying defendant’s motion to vacate the final judgment is reversed, and the cause is remanded for further proceedings. Reversed and remanded.…
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Robinson v. Cornelius, 377 So. 2d 776 (Fla. 4th DCA 1979)…y the plaintiff is not enough to establish concealment. The record does not show by affidavit or otherwise that sufficient search and inquiry was actually made to ascertain that the defendant was concealing his whereabouts. Cf. Fleischman v. Morris, 260 So. 2d 278 (Fla. 3d DCA 1972). If failure to locate the defendant at three addresses is not sufficient to establish concealment, then how much more effective are six or seven such attempts at one address? In Leviten v. Gaunt, 360 So. 2d 112, 113 (Fla. 3rd DC…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- O'Neill v. Adams, 176 So. 2d 903 (Fla. 1965)