WILLIAM AARON HODGES, APPELLANT,
v.
JASMIN NOEL, APPELLEE
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Appellant Hodges challenges a trial court's denial of his motion to quash and dismiss in a negligence action arising from a car accident. The appellate court reverses, holding that the plaintiff failed to comply with Florida Rules of Civil Procedure regarding timely service and pleading requirements for substituted service.
The trial court erred in denying the motion to quash and dismiss. The plaintiff failed to establish good cause for failure to serve within 120 days as required by Florida Rule of Civil Procedure 1.070(i), and the complaint was fatally defective for failing to plead the basis for substituted service under section 48.161, Florida Statutes.
[1] A plaintiff must show good cause for failing to serve a defendant within 120 days of filing an action, or the action will be dismissed.
[2] A trial court cannot refuse to dismiss an action for failure to serve within 120 days without record evidence of efforts made at service during that period that would sup…
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Civil Procedure 1.070(i) requires dismissal of an action if a plaintiff fails to serve the initial pleading and process upon a defendant within 120 days of filing, unless the plaintiff shows good cause why service was not made within that time.”
Establishes the controlling rule requiring dismissal for failure to timely serve unless good cause is shown.
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Join FLexlaw to unlock all legal intelligenceOn June 29, 1990, Hodges' automobile was involved in an accident while carrying passenger Jasmin Noel. Noel sued Hodges on June 28, 1994, the day befo…
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PER CURIAM.
Appellee Jasmin Noel was the passenger in an automobile driven by appellant William Hodges, which was involved in a car accident on June 29, 1990. On June 28, 1994, the day before the statute of limitations expired, Noel sued Hodges and several others. Over one year later, on July 11, 1995, Noel provided the secretary of state with an alias summons for Hodges and on July 14, Noel filed the return of service. On July 31, Hodges filed a motion to quash and dismiss. The trial court denied the motion and Hodges appeals.
Florida Rule of Civil Procedure 1.070® requires dismissal of an action if a plaintiff fails to serve the initial pleading and process upon a defendant within 120 days of filing, unless the plaintiff shows good cause why service was not made within that time. Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla.1992). Nothing in this record establishes what efforts Noel made within the 120 days after filing the complaint to obtain service on Hodges. Although counsel supple mented the record with an affidavit, it fails to note the dates of any of the efforts at service documented within it. Before the 120 day period expired, Noel made no effort to extend the time limit for service under Florida Rule of Civil Procedure 1.090(b). See Morales, 601 So. 2d at 540. A trial court may not exercise its discretion to refuse to dismiss a ease under rule 1.070(i) unless there is record evidence of efforts made at service during the 120 day service period which would support a finding of “good cause” under the rule.
In addition to the rule 1.070(i) issue, the complaint in this case did not plead the basis for substituted service under section 48.161, Florida Statutes (1993). Noel did not seek leave of court to file an amended complaint before attempting substituted service. For that reason alone, the complaint was fatally defective and subject to dismissal. Wyatt v. Haese, 649 So. 2d 905, 907 (Fla. 4th DCA 1995); Wiggam v. Bamford, 562 So. 2d 389, 390 (Fla. 4th DCA 1990).
Appellant’s motion to dismiss and quash should have been granted on both grounds.
Reversed and remanded.
DELL, WARNER and GROSS, JJ., concur.
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Patterson v. Loewenstein, 686 So. 2d 776 (Fla. 4th DCA 1997)…ee with this court’s announcement of a hard-and-fast rule that good cause can only arise where there have been attempts at service and “service could not be made within the 120-day period.” Although this holding is in conformity with Hodges v. Noel, 675 So. 2d 248 (Fla. 4th DCA 1996), our holding may be overly broad. Our holding may also conflict with Burger King Corp. v. Rudge, 630 So. 2d 632 (Fla. 4th DCA 1994), in which we upheld a trial court’s refusal to dismiss a case where the attorneys had put on “s…1 / 2
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Taco Bell Corp. v. Costanza, 686 So. 2d 773 (Fla. 4th DCA 1997)…PER CURIAM. Reversed and remanded for the trial court to enter an order dismissing appellants from the suit for non-compliance with Florida Rule of Civil Procedure 1.070(i). See Hodges v. Noel, 675 So. 2d 248 (Fla. 4th DCA 1996); Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla.1992); Hernandez v. Page, 580 So. 2d 793, 794-95 (Fla. 3d DCA 1991). GUNTHER, C.J., and WARNER, J., concur. PARIENTE, J., concurs specially with opinion.…
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Abdala Alhussain v. Sylvia, 712 So. 2d 806 (Fla. 4th DCA 1998)…ailed to plead the required statutory prerequisites or to allege the ultimate facts that invoke the statute, he could not perfect substituted service on appellant. See Farouki, 682 So. 2d at 1186; Wiggam, 562 So. 2d at 390; see also. Hodges v. Noel, 675 So. 2d 248, 249 (Fla. 4th DCA 1996). Because of our disposition of the first issue, we need not address the remainder of appellant’s claims that the service was defective. Accordingly, we reverse the order denying appellant’s motion to quash and remand for th…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla. 1992)
- Wyatt v. Haese, 649 So. 2d 905 (Fla. 4th DCA 1995)
- Nicolette Wiggam v. Bamford, 562 So. 2d 389 (Fla. 4th DCA 1990)