LYNN MCLEOD NICHOLS AND JANET MCLEOD VARNADO, APPELLANTS,
v.
SEABREEZE PROPERTIES, INC., APPELLEE
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Seabreeze Properties sued Nichols and Varnado, Georgia residents, for breach of an alleged oral contract involving real property. The appellate court reversed the lower court's denial of the defendants' motion to dismiss, finding that Seabreeze failed to meet its burden of proving proper substituted service of process under Florida law.
The court held that the plaintiff failed to meet its burden of proof. Allegations in the complaint alone are insufficient to support the application of substituted service statutes; the plaintiff must present facts that clearly justify the applicability of those statutes through supporting documents, testimony, or other evidence.
[1] The burden of proof is on the party seeking to effect service under substituted service statutes to present facts that clearly justify their applicability.
[2] Allegations in a complaint, standing alone, may be insufficient to support the burden of invoking substituted service provisions.
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Join FLexlaw to unlock all legal intelligence“The burden of proof is on the one seeking to effect service under the substituted service statutes to present facts which clearly justify applicability of the said statutes.”
Establishes the standard that the plaintiff must prove facts supporting substituted service, not merely allege them
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Join FLexlaw to unlock all legal intelligenceSeabreeze Properties alleged it had an oral contract with Belcher to find a purchaser for real property held jointly by Belcher individually and as tr…
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NATHAN, Judge.
This is an interlocutory appeal by defendants, Nichols and Varnado, from an order denying their motion to dismiss for lack of jurisdiction, insufficient service and insufficient service of process.
Plaintiff’s complaint stated inter alia that there was an oral contract between plaintiff Seabreeze and one Belcher whereby plaintiff agreed to find a purchaser for certain real property held jointly by Belch-er, individually and as trustee of a trust under which it is alleged appellants are beneficiaries. Plaintiff’s complaint further alleged that Belcher represented that he was authorized by the appellants to enter into the agreement, and that when Sea-breeze acted in reliance thereon and found a purchaser, Belcher refused to execute the agreement or to consummate the sale; that as a result of this breach, Seabreeze was entitled to its commission.
Plaintiff attempted to serve the appellants, both residents of Georgia, pursuant to Fla.Stat. §§ 48.161 and 48.181, 2 F. S.A. The plaintiff relies solely on the bare complaint for jurisdiction. Neither appellees nor appellants offered testimony or documentary evidence relating to service of process. The burden of proof is on the one seeking to effect service under the substituted service statutes to present facts which clearly justify applicability of the said statutes. Compare Pan Americana Television Los Angeles, Inc., v. Latin Media Consultants Corp., Fla.App. 1974, 300 So. 2d 730.
We find that the allegations in the plaintiff’s complaint, standing alone, are not sufficient to support or substantiate the burden of the plaintiff in seeking to invoke the provisions of substituted service under Fla.Stat. §§ 48.161 and 48.181.
The appellees rely on William E. Strasser Construction Corp. v. Linn, Fla. 1957, 97 So. 2d 458, which is distinguishable because in that case the amended complaint, and its supporting exhibits, did contain sufficient allegations and proof thereof to justify application of the substituted service statute. The court stated at page 459 that, “. . . each case of this kind must be resolved on the basis of the facts revealed by the record in the particular case. While certain general principles may be said to prevail, the application of these principles will be governed by the factual situation presented by a particular record.”
In reviewing the facts in the record before us, we find plaintiff has not met his burden in that there are not sufficient allegations, supporting documents, or other proof to uphold the service of process.
For the foregoing reasons, the order appealed is reversed.
Reversed and remanded.
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The Elmex Corp. v. Atl. Fed. Sav. & Loan Ass'n OF Fort Lauderdale, 325 So. 2d 58 (Fla. 4th DCA 1976)…tion [*62] where the allegations of the complaint are legally insufficient. See Lyster v. Round, Fla.App.1973, 276 So. 2d 186; Lake Erie Chemical Company v. Stinson, Fla.App. 1964, 162 So. 2d 545; Nichols v. Seabreeze Properties, Inc., Fla.App.1974, 302 So. 2d 139; cf. Fawcett Publications, Inc. v. Brown, Fla.App. 1962, 146 So. 2d 899. However, a complaint may present jurisdictional facts which (when deemed admitted for the purposes of the motion) would be sufficient to withstand such motion. The determinati…
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Hyco Mfg. Co. v. Rotex Int'l Corp., 355 So. 2d 471 (Fla. 3d DCA 1978)…r to bring an out-of-state defendant within the jurisdiction of the courts of this state, the plaintiff must make sufficient allegations in the complaint to provide a basis for the exercise of jurisdiction. See Nichols v. Seabreeze Properties, Inc., 302 So. 2d 139 (Fla. 3d DCA 1974). See also Pan Americana Television Los Angeles, Inc. v. Latin Media Consultants, Corp., 300 So. 2d 780 (Fla. 3d DCA 1974); and cf. Zirin v. Charles Pfizer & Co., 128 So. 2d 594, 599-600 (Fla.1961). It is incumbent upon the plainti…1 / 2
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The Dublin Co. v. Peninsular Supply Co., 309 So. 2d 207 (Fla. 4th DCA 1975)…ther proof and not just by reiteration of the complaint. Atlas Aircraft Corp. v. Buckingham, 302 So. 2d 163 (4th D.C.A.Fla.1974); Henschel-Steinau Co. v. Harry Schorr, Inc., 302 So. 2d 198 (4th D.C.A.Fla.1974); Nichols v. Seabreeze Properties, Inc., 302 So. 2d 139 (3d D.C.A.Fla.1974); Citizens & Southern Bank of Atlanta v. Popkin, 281 So. 2d 522 (3d D.C.A.Fla.1973); Hydronaut, Inc. v. Litton Systems, Inc., 208 So. 2d 494 (3d D.C.A.Fla.1968): “[T]he plaintiff must substantiate the jurisdictional allegations o…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- WM. E. Strasser Constr. Corp. v. Linn, 97 So. 2d 458 (Fla. 1957)
- Meyer v. Kenneth G. Gould, M.D., 300 So. 2d 730 (Fla. 2d DCA 1974)