F. BRUCE CORNEAL, APPELLANT,
v.
MARGERY O'BRIEN, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF GAYLORD J. HOFTIEZER, APPELLEE
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The Florida Third District Court of Appeal remanded a default judgment, holding that the trial court failed to strictly comply with statutory requirements for constructive service of process by publication. The court vacated the default and instructed the clerk to set aside the judgment because the plaintiff failed to demonstrate diligent search and inquiry or to mail notice as required by statute.
The court held that strict compliance with statutory procedures for constructive service is mandatory and non-compliance renders the proceedings void. Because the plaintiff failed to file the required affidavit of diligent search, failed to demonstrate any effort to contact the defendant, and failed to mail notice of suit as required, the default judgment must be vacated.
[1] Strict compliance with statutory procedures for constructive service is required, or proceedings may be rendered void.
[2] Service of process by publication requires an affidavit stating the residence of the person to be served as particularly as is known after diligent search and inquiry.
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Join FLexlaw to unlock all legal intelligence“We note, parenthetically, the strict compliance with these statutory procedures, at the peril of rendering the proceedings void, is rudimentary.”
Establishes that strict compliance with statutory procedures for constructive service is mandatory and that failure to comply renders proceedings void.
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Join FLexlaw to unlock all legal intelligencePlaintiff Margery O'Brien obtained a default judgment against defendant F. Bruce Corneal in a lower court action. O'Brien attempted to use constructiv…
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PER CURIAM.
Upon review of plaintiff below Margery O’Brien’s Consent to Voluntarily Withdraw Default and to Remand, and upon our independent review of the record, we remand this matter to the circuit court with instruction to the clerk to vacate the default at issue.
When a complainant resorts to constructive service... .[w]here personal service of process cannot be had, then service of process by publication may be had upon the filing of an affidavit on plaintiff’s behalf stating the residence of the person to be served as particularly as is known after ‘diligent search and inquiry.’ In addition to the publication required as aforesaid, notice of the suit must be mailed to such address as ‘diligent search and inquiry’ may cause to be discovered. We note, parenthetically, the strict compliance with these statutory procedures, at the peril of rendering the proceedings void, is rudimentary.
Gmaz v. King, 238 So. 2d 511, 514 (Fla. 2d DCA 1970) citing Klinger v. Milton Holding Co., 136 Fla. 50, 186 So. 526, 534(Fla.1938).(Footnotes omitted.) See Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985); Herskowitz v. Schwarz & Schiffrin, 411 So. 2d 1359 (Fla. 3d DCA 1982). In the instant ease, the record is devoid of evidence that plaintiff made any effort to contact defendant. The trial docket fails to show that the clerk mailed notice of the suit to defendant as required by section 49.12 Florida Statutes (1995), although defendant’s address was easily ascertainable and defendant had made no effort to conceal his whereabouts. Plaintiff filed a formal notice by publication, however there was no affidavit of diligent search as required by statute. See § 49.031, Fla. Stat. (1995). In sum, as defendant argues and plaintiff now concedes, the requirements for substituted service, having not been strictly complied with, remand for vacation of the default is appropriate.
Remanded with instruction to the clerk to vacate the default previously entered.
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Fed. Nat'l Mortg. Ass'n v. Fandino, 751 So. 2d 752 (Fla. 3d DCA 2000)…ice is essential to obtaining valid personal jurisdiction over the defendant(s). See Linn v. Kidd, 714 So. 2d 1185, 1187 (Fla. 1st DCA 1998); Aero Costa Rica, Inc. v. Dispatch Servs., Inc., 710 So. 2d 218, 219 (Fla. 3d DCA 1998); Corneal v. O’Brien, 707 So. 2d 908, 908 (Fla. 3d DCA 1998); Floyd v. Federal Nat’l Mortgage Assoc., 704 So. 2d 1110, 1112 (Fla. 5th DCA 1998); Wyatt v. Haese, 649 So. 2d 905, 907 (Fla. 4th DCA 1995); Hobbs v. Don Medley Chevrolet, Inc., 642 So. 2d 1149, 1155 (Fla. 5th DCA 1994); Pely…
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Castro v. The Charter Club, Inc., 114 So. 3d 1055 (Fla. 3d DCA 2013)…DCA 2008). Therefore, the statute is strictly construed against the plaintiff seeking service under Chapter 49, and absent strict compliance with the statute, service is improper and any resulting proceeding or judgment is void. Corneal v. O’Brien, 707 So. 2d 908, 909 (Fla. 3d DCA 1998). In ruling on the validity of constructive service, the trial court must determine the sufficiency of the affidavit and of the search to locate the defendant. Redfield Invs., A.V.V., 990 So. 2d at 1138 (citing Giron v. Ugly…
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Gonzalez v. City OF Hollywood, 805 So. 2d 58 (Fla. 3d DCA 2002)…imate merits of the forfeiture proceeding. Reversed and remanded for further proceedings consistent herewith. . This is not a case in which the plaintiff was unable to locate the defendant after diligent search and inquiry. See Corneal v. O’Brien, 707 So. 2d 908 (Fla. 3d DCA 1998).…
Authorities Cited
- Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985)
- Klinger v. Milton Holding Co., 136 Fla. 50 (Fla. 1938)
- Gmaz v. King, 238 So. 2d 511 (Fla. 2d DCA 1970)
- Herskowitz v. Schwarz & Schiffrin, 411 So. 2d 1359 (Fla. 3d DCA 1982)