KEVIN SMITH, APPELLANT,
v.
IMPORT BIRDS, INC., APPELLEE
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Florida appellate court reversed the trial court's denial of defendant's motion to quash service, holding that plaintiff failed to strictly comply with the statutory requirements for substituted service on a non-resident under § 48.161.
Strict compliance with § 48.161, Florida Statutes, is required for substituted service on a non-resident, and failure to file an affidavit of compliance by the return day deprives the trial court of jurisdiction.
[1] Strict compliance with the statutory method of substituted service on a non-resident under § 48.161, Florida Statutes, is jurisdictional, and the trial court lacks jurisd…
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Join FLexlaw to unlock all legal intelligenceDefendant moved to quash service and vacate a default judgment entered against him in circuit court. Plaintiff failed to file an affidavit of complian…
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PER CURIAM.
Defendant moved to quash service and to vacate a default entered against him in circuit court. The motions were denied. Defendant appeals, arguing that the statutory method of substituted service on a non-resident has not been complied with pursuant to § 48.161, Florida Statutes (1984). Unless the plaintiff has strictly complied with Section 48.161, the circuit court does not have jurisdiction. Orange Motors of Coral Gables, Inc. v. Rueben H. Donnelley Corp., 415 So. 2d 892 (Fla. 3d DCA 1982); 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). Plaintiff failed to file his affidavit of compliance by the return day of the process. Plaintiff bears the initial burden to demonstrate compliance with the statute. Once the defendant makes a prima facie showing of failure to comply, the burden again shifts to the plaintiff to demonstrate the statute’s applicability. Plaintiff failed to carry his burden of proof. We therefore find that the trial court erred when it denied defendant’s motions. Shiffman v. Stumpff 445 So. 2d 1104 (Fla. 4th DCA 1984).
Reversed and remanded with directions to quash service and to vacate default.
HURLEY, WALDEN and BARKETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Orange Motors OF Coral Gables, Inc. v. Rueben H. Donnelley Corp. & Fritchman Assocs., Inc., 415 So. 2d 892 (Fla. 3d DCA 1982)
- Fischer v. Plastiline, Inc., 379 So. 2d 697 (Fla. 2d DCA 1980)
- Mann v. State, 406 So. 2d 1267 (Fla. 4th DCA 1981)
- Shiffman v. Stumpff, 445 So. 2d 1104 (Fla. 4th DCA 1984)