RONALD L. BARRIAT AND INDUSTRIAL FIRE AND CASUALTY INSURANCE CO., APPELLANTS,
v.
AUTLEY F. SALAHUD-DIN ET AL., APPELLEES
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The Florida Third District Court of Appeal reversed a trial court's denial of a motion to abate proceedings, holding that the plaintiffs failed to make a legally sufficient showing for substituted service of process on defendant Barriat. The court found that mere failure to locate a defendant at several addresses, without specific factual allegations demonstrating diligent search efforts, does not justify substituted service under Florida's long-arm statute.
The court reversed the trial court's order, holding that the affidavit was insufficient to justify substituted service. Conclusory statements and failure to locate a defendant at three addresses do not establish that the defendant was concealing his whereabouts or justify reliance on a long-arm statute without specific factual allegations demonstrating diligent search efforts.
[1] A party seeking to effect substituted service of process under a long-arm statute bears the burden of presenting facts that clearly justify the statute's applicability.
[2] The failure to locate a defendant at multiple addresses is insufficient, on its own, to establish that the defendant is concealing their whereabouts for purposes of subst…
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Join FLexlaw to unlock all legal intelligence“A party seeking to effect substituted service of process under a long-arm statute has the burden of presenting facts which clearly justify the applicability of the statute.”
Establishes the legal standard that plaintiffs must meet to obtain substituted service
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Join FLexlaw to unlock all legal intelligenceIn January 1978, Salahud-Din and Barriat were involved in an automobile accident. Barriat, a Florida resident, provided his home address and workplace…
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PER CURIAM.
This is an interlocutory appeal by Industrial Fire and Casualty Insurance Company (the insurer) and Barriat (the insured) from the trial court’s order refusing to abate further proceedings until service of process was effected upon Barriat, an indispensable party to the action. See Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972).
In January 1978, the plaintiffs, Salahud-Din, Sr. and Jr., and Barriat were involved in an automobile accident. Barriat, a resident of Florida at the time of the accident, supplied his home address and place of employment to police investigating the accident. In July 1979, the Salahud-Dins sued Barriat and Industrial. Summonses to Bar-riat issued to the addresses supplied by him a year and a half earlier were returned unserved, with the notations that Barriat was not listed as a resident of the apartment complex and did not work at the place of employment. A month later, the plaintiffs unsuccessfully attempted to serve Bar-riat at an address last known to Industrial. The return indicated that Barriat was not listed as a resident of this apartment complex or known to the manager. Based upon these abortive efforts to effect service on Barriat, the plaintiffs’ attorney filed an affidavit in support of substituted service, alleging that he had good reason to believe that Barriat “is not within the State of Florida or is concealing his whereabouts.” The trial court, implicitly finding that a sufficient predicate for substituted service had been laid, denied the defendants’ motion to abate further proceedings. We reverse.
A party seeking to effect substituted service of process under a long-arm statute has the burden of presenting facts which clearly justify the applicability of the statute. See AB CTC v. Morejon, 324 So. 2d 625 (Fla.1976). In Bird v. International Graphics, Inc., 362 So. 2d 316 (Fla.3d DCA 1978), we held that the failure to locate a defendant at three addresses is not enough to establish that the defendant was concealing his whereabouts. While in Bird no affidavit was filed to show that a diligent search and inquiry had been made, the filing of an affidavit, as in the present case, which merely says that Barriat could not be found at a residence and job which antedated the attempted service by a year and a half, and was not at still another residence, does not, as the plaintiffs contend, make Bird distinguishable. The conclusory statement that a diligent search was made falls short of setting forth facts from which a court may conclude that a diligent search has indeed been made. See Robinson v. Cornelius, 377 So. 2d 776 (Fla. 4th DCA 1979). Accordingly, the order of the trial court is reversed with directions to abate further proceedings until either personal service of process is effected on Barriat or a legally sufficient showing is made by the plaintiffs which would authorize substituted service of process upon the Secretary of State pursuant to Section 48.171, Florida Statutes (1979).
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Knabb v. Morris, 492 So. 2d 839 (Fla. 5th DCA 1986)…aring support a finding of due diligence by the plaintiff in effectuating substituted service of process [*841] on Knabb. The burden to make that showing was on the plaintiff. See AB CTC 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. 3…
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Cross v. Kalina, 681 So. 2d 855 (Fla. 5th DCA 1996)…ablish due diligence when investigator failed to utilize obvious and available resources to locate defendant). Furthermore, we cannot determine from conclusory statements in Kalina’s affidavit that a diligent search was made. Barriat v. Salahud-Din, 389 So. 2d 1216, 1217 (Fla. 3d DCA 1980). We reverse and remand for proceedings not inconsistent with this opinion. REVERSED and REMANDED with directions. DAUKSCH and GOSHORN, JJ., concur.…
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Howell v. Falls, 513 So. 2d 1096 (Fla. 4th DCA 1987)…Plaintiff has attempted to obtain the address of said Defendant through the use of a professional tracing service, but to no avail. In my opinion the foregoing is substantially different from the cursory efforts described in Barriat v. Salahud-Din, 389 So. 2d 1216 (Fla. 3d DCA 1980). Not only was service attempted at the address provided by appellant, but telephone directories and public records of three counties were searched, and a professional tracing service engaged, to no avail. Such facts show there was…
Authorities Cited
- AB CTC v. Morejon, 324 So. 2d 625 (Fla. 1975)
- Augusta Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972)
- Bird v. Int'l Graphics, Inc., 362 So. 2d 316 (Fla. 3d DCA 1978)
- Robinson v. Cornelius, 377 So. 2d 776 (Fla. 4th DCA 1979)
- Baker v. Baker, 377 So. 2d 776 (Fla. 4th DCA 1979)