1321 Whitfield Llc v. Silverman
| Decision Date | 24 August 2011 |
| Docket Number | No. 2D10–4766.,2D10–4766. |
| Citation | 67 So.3d 435 |
| Parties | 1321 WHITFIELD, LLC, Appellant,v.Carmen SILVERMAN, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
John W. Persse of John W. Persse, Attorney at Law, Sarasota, for Appellant.
Daniel G. Drake of Drake & Associates, Brandon, for Appellee.CRENSHAW, Judge.
1321 Whitfield, LLC, a Florida limited liability company, appeals the final judgment of mortgage foreclosure entered in favor of Carmen Silverman. Whitfield raises two issues on appeal. First, Whitfield argues that the trial court was without jurisdiction to enter the final judgment of foreclosure because Silverman's constructive service of process upon Whitfield was not permitted by statute. Second, Whitfield argues that constructive service of process was improper because Silverman failed to make a diligent search and inquiry to effect personal service on the registered agent. We affirm the final judgment of foreclosure because constructive service of process by publication upon a limited liability company is permitted under section 49.021(2), Florida Statutes (2009). And because Whitfield has failed to show reversible error on the face of the record, we affirm the trial court's finding that Silverman made a diligent search and inquiry to effect personal service on the registered agent.
Whitfield received a loan from Silverman in the amount of $150,000, which was secured by a promissory note and a mortgage on Whitfield's property in Sarasota. Silverman initiated a foreclosure action against Whitfield for failing to make payments required by the note. After several unsuccessful attempts to personally serve process upon Whitfield's registered agent, Silverman ultimately served process upon Whitfield through publication in the Bradenton newspaper. Silverman then filed a motion for entry of default against Whitfield which was entered in April 2010. Whitfield filed a subsequent motion to quash service of process. The trial court denied the motion after a hearing and entered the final judgment of mortgage foreclosure.
Whitfield contends that Silverman's service of process by publication was improper because constructive service of process upon a limited liability company is not permitted. We disagree. Service of process against a limited liability company is governed by section 608.463(1), Florida Statutes (2009). The statute permits service of process “in accordance with chapter 48 or chapter 49, as if the limited liability company were a partnership” or “upon the registered agent at the agent's street address.” Here, service of process was served under chapter 49—specifically, section 49.021(2)—which provides for service of process by publication upon “any corporation or other legal entity ” where personal service of process cannot be effectuated. (Emphasis added.) Whitfield argues that the language providing for service of process by publication upon any “other legal entity” excludes limited liability companies and partnerships. Whitfield relies upon the principle of statutory construction that a specific statute controls over a general statute concerning the same subject, to argue that section 48.061, Florida Statutes (2009), controls over section 49.021, because section 48.061 specifically governs service of process on partnerships. “Such a reading, however, contravenes another...
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... ... This deficiency often proves fatal to the appellant's ... case. See, e.g., 1321 Whitfield, LLC v ... Silverman, 67 So.3d 435, 437 (Fla. 2d DCA 2011) ... (affirming ... ...
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...chapter 49, as if the limited liability company were a partnership." § 608.463(1)(a), Fla. Stat. (2014) ; see 1321 Whitfield, LLC v. Silverman, 67 So.3d 435, 436 (Fla. 2d DCA 2011). As section 49.021, Florida Statutes (2014), allows for constructive service on corporations and other legal e......
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...be construed in such a way that it renders meaningless or absurd any other statutory provision.” Id. See, e.g., 1321 Whitfield, LLC v. Silverman, 67 So.3d 435 (Fla. 2d DCA 2011) (rejecting defendant's argument that the more specific service provision of section 48.061 controlled over sectio......
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Tramontana v. Bank of N.Y. Mellon, Case No. 2D16–2990
...that the trial court's judgment is not supported by the evidence or by an alternative theory."); see also 1321 Whitfield, LLC v. Silverman, 67 So.3d 435, 437 (Fla. 2d DCA 2011) (affirming final judgment of foreclosure where, due to absence of hearing transcript, this court was unable to mea......