THE ESTATE OF JESSICA SCHAFER, BY AND THROUGH HER FATHER AND NATURAL GUARDIAN, MICHAEL SCHAFER, APPELLANT,
v.
JULIE SCHAFER, WILLIAM MILLER, AND LAURA MILLER, APPELLEES
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Michael Schafer appealed the dismissal of a wrongful death action for failure to perfect service of process within 120 days of filing. The court reversed, holding that service perfected before the hearing on a motion to dismiss precluded dismissal under Florida Rule 1.070(j), analogous to default judgment rules.
Service perfected prior to the hearing on and entry of a dismissal motion cures the defect, and the trial court erred in dismissing the complaint. The 120-day rule operates analogously to default judgment rules, which do not permit entry of default if the defendant responds before the default is entered.
[1] A complaint may not be dismissed for failure to perfect service of process within 120 days if service is effected prior to the hearing on a motion to dismiss and before t…
[2] The 120-day rule for service of process is intended as a tool for docket management, not as an instrument of oppression.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the operation of Rule 1.070(j) is analogous to the application of Florida Rule of Civil Procedure 1.500(c) wherein the law of the State requires a default not be entered, under that rule, if the defendant files its answer at any time prior to the proposed entry of a default.”
Establishes the controlling legal principle that service perfected before dismissal entry prevents dismissal, similar to default rules
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Join FLexlaw to unlock all legal intelligenceMichael Schafer filed a wrongful death complaint on October 12, 1990. Julie Schafer moved to dismiss on February 1, 1991, four days after the 120-day …
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PER CURIAM.
Michael Schafer appeals from an order dismissing a wrongful death action for failure to perfect service of process within 120 days of filing suit. For the following reason, we reverse.
On October 12, 1990, Michael Schafer filed his complaint for wrongful death. On February 1, 1991, Julie Schafer moved to dismiss1 Mr. Schafer’s complaint against her pursuant to Florida Rule of Civil Proce dure 1.070(j).2 Service of process was effected on Julie Schafer on February 12, 1991, four days after the expiration of the 120-day period, but prior to the hearing on her motion to dismiss.
Following the hearing on Ms. Schafer’s motion to dismiss, the trial court entered an order pursuant to Rule 1.070(j) dismissing the complaint against her. In Berdeaux v. Eagle-Pieher Inds., Inc., 575 So. 2d 1295 (Fla. 3d DCA 1990), this court held that “the operation of Rule 1.070(j) is analogous to the application of Florida Rule of Civil Procedure 1.500(c) wherein the law of the State requires a default not be entered, under that rule, if the defendant files its answer at any time prior to the proposed entry of a default.” (Citation omitted.) Because the appellant perfected service of process prior to the hearing on and entry of dismissal, the trial court erred in dismissing the complaint. Id. at 1296; see also Hernandez v. Page, 580 So. 2d 793 (Fla. 3d DCA 1991) (120-day rule intended to be useful tool for docket management, not instrument of oppression).
We recognize that the recent case of Morales v. Sperry Rand Corp., 578 So. 2d 1143 (Fla. 4th DCA 1991), reaches a contrary result. We respectfully certify conflict with that opinion.
Reversed and remanded; conflict certified.
. Ms. Schafer's motion to dismiss was premature because the 120-day time period for perfecting service had not yet run.
. Rule 1.070Q states:
If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service was not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the court’s own initiative after notice or on motion.
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Citator
Cited By
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Santmyer v. Orange Paving & Constr. Co., 589 So. 2d 472 (Fla. 5th DCA 1991)…. 2d 240, 241 (Fla. 5th DCA 1991) (appeal of an order dismissing plaintiff’s case without prejudice). See also Greco v. Pedersen, 583 So. 2d 783 (Fla. 2d DCA 1991); Hill v. Hammerman, 583 So. 2d 368 (Fla. 4th DCA 1991); Estate of Schafer v. Schafer, 582 So. 2d 121 (Fla. 3d DCA 1991); Morales v. Sperry Rand Corp., 578 So. 2d 1143 (Fla. 4th DCA 1991); Berdeaux v. Eagle-Picher hud., Inc., 575 So. 2d 1295 (Fla. 3d DCA 1991). Accordingly, we dismiss this petition for certiorari on the sole ground that we lack ju…
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Smith v. Smith (Fla. 3d DCA 2026)…e return of service was invalid because service occurred after 120 days but before dismissal. This court has explained that dismissal is not self-effecting, and valid service before dismissal remains effective. See, e.g., Est. of Schafer v. Schafer, 582 So. 2d 121, 122 (Fla. 3d DCA 1991) (“Because the appellant perfected service of process [after the expiration of 120 days but] prior to the hearing on and entry of dismissal, the trial court erred in dismissing the complaint” on that basis.) [*6] presented to…
Authorities Cited
- Hernandez v. Page, 580 So. 2d 793 (Fla. 3d DCA 1991)
- Berdeaux v. Eagle-Picher Indus., Inc., 575 So. 2d 1295 (Fla. 3d DCA 1990)
- Pylon Enters., Ltd. v. Greenwich Properties-I, Ltd., 578 So. 2d 1143 (Fla. 4th DCA 1991)
- Morales v. Sperry Rand Corp., 578 So. 2d 1143 (Fla. 4th DCA 1991)