Anthony v. GARY J. ROTELLA & ASSOCIATES
Decision Date | 20 July 2005 |
Docket Number | No. 4D04-4245.,4D04-4245. |
Citation | 906 So.2d 1205 |
Parties | Eric M. ANTHONY, Appellant, v. GARY J. ROTELLA & ASSOCIATES, P.A., Ray G. Anthony, The New Auto Toy Store, Inc., and John Doe(s), an unknown person or persons, Appellees. |
Court | Florida District Court of Appeals |
Robert F. Elgidely of Elgidely Law Office, Fort Lauderdale, for appellant.
No brief filed for appellees.
Eric Anthony appeals a non-final order denying his motion to quash service of process, challenging the trial court's determination that he waived his right to be served personally. We reverse.
On June 28, 2004, Gary J. Rotella filed a complaint against Anthony, a non-resident of Florida, and directed a process server to serve him at his place of business in Pennsylvania. The process server, waiting outside the gated place of business, was able to contact by telephone a co-worker of Anthony's, Kim Crown. The process server informed Crown that he only had "some papers" for Anthony. Crown then directed a third person, Bill Briugka, to retrieve the papers from the process server at the gate. When Briugka arrived at the gate, the process server served him with the Summons and Complaint.
The Affidavit of the process server stated that he served Anthony with the summons and complaint by serving "Bill Briugka — Employee sent to security gate by Kim Crown — Adm Asst." Rotella later furnished Anthony with an amended verified return of service which stated, that service was executed on
On August 17, 2004, Anthony filed a motion to quash service of process. In the motion, Anthony contended that the trial court must quash service of process because the service was not consistent with sections 48.194(1) and 48.031(1)(a), Florida Statutes. Anthony never filed an affidavit stating that service was not authorized. The trial court held a special hearing on Anthony's motion to quash service of process. The court held that Anthony had waived personal service, reasoning:
On September 28, 2004, the trial court entered an order denying Anthony's Motion to Quash. Anthony timely appealed.
The standard of review of a trial court's application and interpretation of Florida law is de novo. Gilliam v. Smart, 809 So.2d 905, 907 (Fla. 1st DCA 2002). The standard of review for the issue of personal jurisdiction over a non-resident is also de novo. Greystone Tribeca Acquisition v. Ronstrom, 863 So.2d 473, 475 (Fla. 2d DCA 2004).
Furthermore, Carter v. Lil' Joe Records, 829 So.2d 953 (Fla. 4th DCA 2002). "Absent strict compliance with the statutes governing service of process, the court lacks personal jurisdiction over the defendant." Sierra Holding v. Inn Keepers Supply, 464 So.2d 652 (Fla. 4th DCA 1985).
The Florida statutes applicable for service of process on a non-resident are sections 48.194 and 48.031. Section 48.194(1) provides that "service of process on persons outside this state shall be made in the same manner as service within the state by any officer authorized to serve process in the state where the person is served." Section 48.031(1) sets forth the manner in which service can be made within the state as follows:
(Emphasis added). Subsection two (2) of section 48.031 addresses the issue of substitute service. This subsection provides for a limited scope on substitute service and is not applicable in the case sub judice.
In Hauser v. Schiff, the third district held that substitute service of process was not effectuated by a process server who went to the defendant's place of business and, without seeing the defendant, left the summons and complaint with the secretary. 341 So.2d 531 (Fla. 3d DCA 1977). The court in Hauser distinguished what section 48.031 termed as the "usual place of abode" from the place of employment of an individual. Id. at 532; See, e.g., State v. Heffernan, 142 Fla. 496, 195 So. 145 (1940). In Top Dollar Pawn Too, Inc. v. King, 861 So.2d 1264 (Fla. 4th DCA 2003), this court held that service was not properly effectuated where the verified return of service indicated that the complaint was delivered to the office manager of the defendant's registered agent, rather than being served upon the registered agent himself. This court held that the service was not authorized by section 48.081, Florida Statutes, and therefore was grounds for vacating a default judgment of the corporate defendant. Id. at 1266; See also Stoeffler v. Castagliola, 629 So.2d 196 (Fla. 2d DCA 1993) (...
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