ALBERT B. LUCKEY, JR., APPELLANT,
v.
SMATHERS & THOMPSON, A FLORIDA PARTNERSHIP ET AL., APPELLEES
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Luckey appeals a judgment denying his complaint to vacate a writ of execution based on a prior default judgment he claimed was improperly entered. The court affirmed the default judgment, holding that when a defendant intentionally isolates himself to avoid service of process, the court's finding of concealment under Florida law is supported by evidence of genuine service attempts, and the defendant's self-imposed isolation does not prevent entry of a default judgment.
The court held that the trial judge's finding that Luckey concealed himself for purposes of avoiding service of process is adequately supported by the evidence, and there is no rule of law requiring court officers to breach a defendant's self-imposed isolation to inform him that a suit has been filed.
[1] A trial court's finding that a party concealed himself to avoid service of process is adequately supported by evidence of the party's self-imposed isolation, refusal to a…
[2] Genuine attempts to effect service of process by various methods, including visits to a residence and attempts to contact through frequented establishments, satisfy the r…
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Join FLexlaw to unlock all legal intelligence“the present trial judge found that Luckey had, in fact, for the purpose of avoiding all legal matters, secreted himself from the world and lived in isolation in a high security apartment refusing to answer the telephone or even to open his mail”
Establishes the factual basis for finding concealment to avoid service of process
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Join FLexlaw to unlock all legal intelligenceLuckey was the defendant in a prior case in which a default judgment was entered against him. The trial judge in the current case found that Luckey ha…
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PER CURIAM.
Albert B. Luckey, who was the plaintiff in the trial court, appeals a final judgment entered after trial before the court without a jury. The judgment denied relief upon Luckey’s complaint to vacate writ of execution and levy of sale upon property formerly owned by Luckey. The basis for the complaint was that a default judgment had been improperly entered against him in a prior case because the court’s finding in that case that Luckey had, for the purposes of Section 48.161, Florida Statutes (1975), concealed himself to avoid service of process was unsupported by that record and untrue in fact. After hearing evidence, the present trial judge found that Luckey had, in fact, for the purpose of avoiding all legal matters, secreted himself from the world and lived in isolation in a high security apartment refusing to answer the telephone or even to open his mail.
The record shows that genuine attempts by various methods were made to effect service upon Luckey. The appellant does not contest that an officer attempted on one occasion to visit his residence to service process on him, that five unanswered telephone calls were made in an attempt to contact him, that service was attempted by way of four visits to establishments that appellant was believed to frequent, and that five attempts were made to contact appellant through observations carried out at his place of residence.
We hold that the finding of the trial judge is adequately supported by the evidence and that, under the circumstances, there is no rule of law which requires that the officers of the court be able to breach the self-imposed isolation in order to inform the defendant that a suit is filed against him. See Steedman v. Polero, 181 So. 2d 202 (Fla.3d DCA 1965). Cf. Green v. Nashner, 216 So. 2d 492 (Fla.3d DCA 1968); and Crews v. Rohlfing, 285 So. 2d 433 (Fla.3d DCA 1973).
Affirmed.
BARKDULL, J., dissents.
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Turcotte v. Graves, 374 So. 2d 641 (Fla. 4th DCA 1979)…the receipt of which must be evidenced by the defendant’s return receipt. Of course, where the defendant takes affirmative action to avoid acceptance of such mailing, the requirement will be deemed to be satisfied. See Luckey v. Smathers & Thompson, 343 So. 2d 53 (Fla. 3d DCA 1977). However, where, as here, the failure of delivery of process was not caused by the defendant-addressee’s rejection of the mail and where such failure might have resulted from a cause not chargeable to the defendant, then the statu…
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Cortez Dev. Co. v. NEW York Cap. Grp., Inc., 401 So. 2d 1163 (Fla. 3d DCA 1981)…one v. Lesser, 190 So. 2d 805 (Fla. 3d DCA 1966). In the present case there was ample evidence from which the trial court could have found that Rosenberg refused delivery and was attempting to avoid service of process. Luckey v. Smathers & Thompson, 343 So. 2d 53 (Fla. 3d DCA 1977); Steedman v. Polero, 181 So. 2d 202 (Fla. 3d DCA 1966). This is not a case where the letter was returned marked “unclaimed” or “moved — left no address,” giving rise to the plausible inference that the defendant was not at the pos…
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Delancy v. Tobias, 26 So. 3d 77 (Fla. 3d DCA 2010)…y denying them physical access.” Bein v. Brechtel-Jochim Group, Inc., 6 Cal.App.4th 1387, 1393, 8 Cal.Rptr.2d 351 (1992). As such, based upon this record, Delaney properly resorted to substituted service on Tobias. See Luckey v. Smathers & Thompson, 343 So. 2d 53, 54 (Fla. 3d DCA 1977) (holding that “there is no rule of law which requires that the officers of the court be able to breach the self-imposed isolation in order to inform the defendant that a suit is filed against him”); see also Boatfloat LLC v. G…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Green v. Eugenie Nashner, 216 So. 2d 492 (Fla. 3d DCA 1968)
- Steedman v. Polero, 181 So. 2d 202 (Fla. 3d DCA 1965)
- Crews v. Rohlfing, 285 So. 2d 433 (Fla. 3d DCA 1973)