FAWAZ FAROUKI, APPELLANT,
v.
ATTEL ET CIE, A CORPORATION ORGANIZED UNDER THE LAWS OF SWITZERLAND, PROFIT TECHNOLOGY, INC., A DELAWARE CORPORATION; AND DAVID BRAUS, ESCROW AGENT, APPELLEES
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Fawaz Farouki appealed an order denying his motion to quash service of process and a default judgment entered against him. The court reversed, finding that the plaintiff failed to plead the statutory requirements for substituted service under Florida's long-arm statute, rendering the service invalid and depriving the trial court of jurisdiction.
The court reversed the denial of the motion to quash service of process and the denial of the motion for protective order, holding that Attel failed to plead either the actual statutory language or the ultimate facts invoking section 48.181(1), rendering substituted service insufficient and depriving the trial court of jurisdiction over Farouki.
[1] A complaint must allege the jurisdictional requirements prescribed by statute to support substituted service of process on a defendant.
[2] Failure to plead the statutory language or ultimate facts invoking a substituted service statute requires granting a motion to quash process.
Previewing 2 of 5 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“When serving process under statutes authorizing service on nonresidents of Florida, the plaintiff must plead the actual statutory language, or allegations of the ultimate facts that invoke the statute.”
Establishes the fundamental pleading requirement for substituted service under Florida's long-arm statute.
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Join FLexlaw to unlock all legal intelligenceAttel et Cie sued Profit Technology, Inc. and Farouki individually for contract and tort damages. Attel alleged Farouki was a Florida resident and ser…
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GUNTHER, Chief Judge.
In this consolidated case, Fawaz Farouki (Farouki) appeals an order denying his motion to quash service of process and the default entered against him. He also petitions the court for a writ of certiorari asserting the trial court erred in denying his motion for protective order. As a consequence of reversing the order denying the motion to quash, we grant the writ, reverse the denial of the motion for protective order, and remand with instructions to grant the motions and set aside the default.
Appellee, Attel et Cie (Attel), brought suit against Profit Technology, Inc. (PTI) and Farouki, individually, seeking contract and tort damages. Attel’s complaint alleges that Farouki was a Florida resident at the time of the wrongdoing and that he had been chief executive officer, president, and director of PTI, a Florida corporation. However, the complaint fails to allege that Farouki, individually, did business in Florida, had become a nonresident, or was concealing his whereabouts. After failing to personally serve process on Farouki, Attel substituted service on Florida’s secretary of state, pursuant to section 48.181(1), Florida Statutes (1995). Far-ouki then moved to quash service of process, his motion was denied, and this appeal followed.
When serving process under statutes authorizing service on nonresidents of Florida, the plaintiff must plead the actual statutory language, or allegations of the ultimate facts that invoke the statute. Fla.R.Civ.P. 1.070(h); see Wiggam v. Bamford, 562 So. 2d 389, 390 (Fla. 4th DCA 1990). It is well settled that “[t]o support substituted service of process on a defendant, the complaint must allege the jurisdictional requirements prescribed by statute. If it fails to do so then a motion to quash process should be granted.” Drake v. Scharlau, 353 So. 2d 961, 964 (Fla. 2d DCA 1978); see Wiggam, 562 So. 2d at 390; Ferguson v. McWilliams, 483 So. 2d 509 (Fla. 4th DCA 1986).
In the instant case, Attel substituted service under section 48.181(1), which provides, inter alia, that Florida’s secretary of state can accept service for any former Florida resident who previously conducted business in Florida but subsequently becomes a nonresident, or any Florida resident who conceals his or her whereabouts. § 48.181(1).
Although Attel pled that Farouki was a Florida resident at the time of the alleged wrongdoing and had served in various executive capacities with PTI, these allegations, standing alone, are insufficient to support substituted service. Id.; Fla. R. Civ. P. 1.070(h); see Drake, 353 So. 2d at 964. Because Attel failed to plead the required actual statutory language or to allege the ultimate facts that invoke the statute, he could not perfect substituted service on Farouki. § 48.181(1); Fla. R. Civ. P. 1.070(h); see Wiggam, 562 So. 2d at 390.
Further, another defect in Attel’s complaint is illustrated by A.B.L. Realty Corp. v. Cohl, 384 So. 2d 1351 (Fla. 4th DCA 1980). There it was held that absent allegations that the individual defendants acting in their individual capacities had engaged in business in Florida, service upon the secretary of state under the long-arm statute could not constitute service upon them as individuals. Id. at 1356. Likewise, Attel’s complaint suffers the same infirmity. Thus, these pleading defects render substituted service of process insufficient and preclude Farouki from coming under the trial court’s jurisdiction.
While this appeal was pending, Attel sought to depose Farouki by mailing a notice of taking deposition to Farouki’s attorney’s office. Farouki responded by filing a motion for a protective order. After the trial court denied his motion, Farouki filed this petition for writ of certiorari and requested that the appeal and the petition be consolidated.
In consolidating the two cases, we hold that because the trial court lacked jurisdie tion over Farouki, the trial court erred in denying Farouki’s motion to quash and motion for protective order. Accordingly, we reverse the orders denying Farouki’s motions, grant the petition for a writ of certiorari, and remand with instructions to grant Farouki’s motions, without prejudice to Attel to amend its complaint, and to set aside the default entered against Farouki.
REVERSED, PETITION GRANTED AND REMANDED WITH INSTRUCTIONS.
STONE and WARNER, JJ., concur.
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Monaco v. Nealon, 810 So. 2d 1084 (Fla. 4th DCA 2002)…ted service under section 48.171, a plaintiff such as Nealon must meet two requirements: 1) the complaint must allege the ultimate facts bringing the defendant within the purview of the statute, see Fla. R. Civ. P. 1.070(h); Farouki v. Attel et Cie, 682 So. 2d 1185, 1186 (Fla. 4th DCA 1996), and 2) the service must strictly comply with section 48.161, Florida Statutes (2000), which sets forth the method of substituted service of process. See Mercy Lu Enters, v. Liberty Mut. Ins. Co., 681 So. 2d 758, 759 (Fla.…
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Abdala Alhussain v. Sylvia, 712 So. 2d 806 (Fla. 4th DCA 1998)…to serve Alhussain with the complaint. More than two years after filing suit, appellee substituted service on Florida’s Secretary of State, pursuant to section 48.181(1), Florida Statutes (1995). As this court emphasized in Farouki v. Attel et Cie, 682 So. 2d 1185 (Fla. 4th DCA 1996), in order to support substituted service of process on a defendant, the complaint must allege the jurisdictional requirements prescribed by statute. If it fails to do so, then a motion to quash process should be granted. See also…
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Gen. de Seguros, S.A. v. Consol. Prop. & Cas. Ins. Co., 776 So. 2d 990 (Fla. 3d DCA 2001)…requirements. See Pelycado Onroerend Goed B.V. v. Ruthenberg, 635 So. 2d 1001, 1003 (Fla. 5th DCA 1994)(absent strict compliance with the statutory requirements for substituted service, a court lacks jurisdiction); see also Farouki v. Attel et Cie, 682 So. 2d 1185, 1186 (Fla. 4th DCA 1996); Drake v. Scharlau, 353 So. 2d 961 (Fla. 2d DCA 1978). In this case, Consolidated merely alleges that General contracted to insure persons, property and/or risks located within this state and breached a contract in this st…
Authorities Cited
- Drake v. Scharlau, 353 So. 2d 961 (Fla. 2d DCA 1978)
- Nicolette Wiggam v. Bamford, 562 So. 2d 389 (Fla. 4th DCA 1990)
- A. B. L. Realty Corp. v. Cohl, 384 So. 2d 1351 (Fla. 4th DCA 1980)
- Ferguson v. McWILLIAMS, 483 So. 2d 509 (Fla. 4th DCA 1986)
- Reg B. Meiliunas v. O'Leary, 483 So. 2d 509 (Fla. 4th DCA 1986)