TERRY F. LEVITEN AND ALLSTATE INSURANCE COMPANY, APPELLANTS,
v.
THOMAS R. GAUNT, APPELLEE
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Defendants appealed an order denying their motion to quash service of process on defendant Leviten. The court reversed, holding that the plaintiff failed to demonstrate due diligence in attempting substituted service as required by Florida statute, and that mere allegations of concealment without investigative effort are insufficient to justify substituted service.
The court held that substituted service statutes must be strictly construed and require clear justification through facts presented by the serving party. An affidavit merely alleging concealment without proof of diligent efforts to locate the defendant and without establishing that the defendant is actually concealing herself is insufficient to support substituted service. The trial court erred in denying the motion to quash.
[1] A statute providing for substituted service must be strictly construed, and the party seeking to effect service under it has the burden of presenting facts that clearly j…
[2] Where the record lacks proof of diligent efforts to locate a party or establish concealment, the mere filing of an affidavit alleging concealment is insufficient to suppo…
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Join FLexlaw to unlock all legal intelligence“A statute providing for substituted service must be strictly construed, and the party seeking to effect service under it has the burden of presenting facts which clearly justify its applicability.”
Establishes the high standard required for substituted service and burden of proof on the serving party.
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Join FLexlaw to unlock all legal intelligencePlaintiff Gaunt sued defendants Leviten and Allstate. Initial service attempts on Ms. Leviten were defective. Gaunt attempted substituted service by s…
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PER CURIAM.
By this interlocutory appeal, appellants Terry F. Leviten and Allstate Insurance Company, defendants in the trial court, urge reversal of that court’s order denying their motion to quash service of process on Ms. Leviten. They contend that plaintiff-appellee has failed to adhere to the requirements of Sections 48.161 and 48.171, Florida Statute? in that he has not evinced due diligence in endeavoring to make substituted service. We agree.
In an earlier appeal by the same parties, this court held that plaintiff’s initial attempts to serve process upon Ms. Leviten were defective. Leviten v. Gaunt, 347 So. 2d 452 (Fla. 3d DCA 1977). Thereafter, Gaunt attempted to perfect service on her by serving a summons and an amended complaint on the Secretary of State, pursuant to Chapter 48, Florida Statutes , and by sending a notice of service and a copy of the process to Ms. Leviten by registered mail to two addresses in Miami. Both mailings were returned; one marked “unclaimed,” and the other “No such street number” and “Not in directory.”
Subsequent to this court’s decision in the earlier appeal, Gaunt’s counsel had deposed Ms. Leviten’s parents, who stated that their daughter had moved out of their home after a personal argument nearly a year before initiation of the suit, and the only communication they had had from her since was a single postcard from Paris. However, they were able to supply names and addresses of twelve persons who knew her. Several of these persons reside in Dade County.
Without making any attempt to follow up these leads, Gaunt’s counsel filed an affidavit, based on information gained at the deposition, alleging that Ms. Leviten had “concealed her whereabouts.” The record is devoid of proof that she was concealing her whereabouts, and equally devoid of any evidence of due diligence on the part of plaintiff to search for her. In fact, appellant Leviten has not had notice of the suit.
A statute providing for substituted service must be strictly construed, and the party seeking to effect service under it has the burden of presenting facts which clearly justify its applicability. Young Spring Wire Corporation v. Smith, 176 So. 2d 903 (Fla.1965) and cases cited therein. Where neither the affidavit nor the record reveal appropriate diligence in seeking to find the party sought 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.
Although appellants assert that the mere fact that defendant’s return receipt was never filed with the court, as required by Section 48.161, is a sufficient basis upon which to reverse the ruling below, this is not necessarily so. If due diligence were shown in an effort to locate Ms. Leviten, so .that it could be satisfactorily established that her whereabouts is unknown or that she is concealing herself, the requirement of filing a return receipt with the court would be obviated. Robb v. Picarelli, 319 So. 2d 645 (Fla. 3d DCA 1975). However, the complete absence in the record of any proof of diligent effort to find Ms. Leviten or to prove concealment mandates reversal.
Therefore, the order denying the motion to quash service of process on Ms. Leviten is reversed, and the cause is remanded to the trial court with instructions to enter an order granting the motion to quash.
Reversed and remanded with instructions.
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Citator
Cited By (16 total)
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Robinson v. Cornelius, 377 So. 2d 776 (Fla. 4th DCA 1979)…schman 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 DCA 1978), the Court stated: A statute providing for substituted service must be strictly construed, and the party seeking to effect service under it has the burden of presenting facts which clearly justify its applicability. Young S…
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Knabb v. Morris, 492 So. 2d 839 (Fla. 5th DCA 1986)…v. Morejon, 324 So. 2d 625 (Fla.1975); Barriat v. Salahud-din, 389 So. 2d 1216 (Fla. 3d DCA 1980); Robinson v. Cornelius, 377 So. 2d 776 (Fla. 4th DCA 1979); Bird v. International Graphics, Inc., 362 So. 2d 316 (Fla. 3d DCA 1978); Leviten v. Gaunt, 360 So. 2d 112 (Fla. 3d DCA 1978); Fleischman v. Morris, 260 So. 2d 278 (Fla. 3d DCA 1972). There is a strong public policy interest in seeing that a defendant receives notice of any actions against him so that he may have his day in court in accordance with due…
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Shiffman v. Stumpff, 445 So. 2d 1104 (Fla. 4th DCA 1984)…uch statutes must be strictly construed and strictly complied with. See, e.g., Panter v. Werbel-Roth Securities, Inc., 406 So. 2d 1267 (Fla. 4th DCA 1981); George Fischer Ltd. v. Plastiline, Inc., 379 So. 2d 697 (Fla. 2d DCA 1980); Leviten v. Gaunt, 360 So. 2d 112 (Fla. 3d DCA 1978); Century Brick Corp. of America v. Gatewood, 157 So. 2d 95 (Fla. 3d DCA 1963); Rever v. Lapidus, 151 So. 2d 61 (Fla. 3d DCA 1963). Appellee contends that he has strictly complied, because he filed his affidavit of compliance “wit…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- O'Neill v. Adams, 176 So. 2d 903 (Fla. 1965)
- Robb v. Picarelli, 319 So. 2d 645 (Fla. 3d DCA 1975)
- Fleischman v. Morris, 260 So. 2d 278 (Fla. 3d DCA 1972)
- Leviten v. Gaunt, 347 So. 2d 452 (Fla. 3d DCA 1977)