Austin v. Gaylord
| Decision Date | 29 July 1992 |
| Docket Number | No. 91-1408,91-1408 |
| Citation | 603 So.2d 66 |
| Parties | T. Edward AUSTIN, as State Attorney of the Fourth Judicial Circuit of Florida, Appellant, v. Deborah Carol GAYLORD, Appellee. 603 So.2d 66, 17 Fla. L. Week. D1852 |
| Court | Florida District Court of Appeals |
J. Bruce Bickner of Dawson, Galant, Sulik, Wiesenfeld & Bickner, Jacksonville, for appellant.
No appearance for appellee.
We review a nonfinal order of the trial court denying Appellant, T. Edward Austin's, motion to dismiss the civil complaint against him. 1 Appellant's motion to dismiss alleged that, as Plaintiff sued him in his capacity as state attorney for damages based on charges of malicious prosecution, negligence, and violations of 42 U.S.C.A. Secs. 1982, 1983 and 1985, service of process had to be effected in accordance with section 768.28(7), Florida Statutes (1989). This subsection requires that service of process on both the state agency sued and the Department of Insurance is essential to acquire jurisdiction over the state agency, in this case Austin as state attorney.
The trial court granted Appellant's first motion to dismiss the complaint based on Plaintiff's failure to serve the Department of Insurance with the pleadings and process, and ordered that amended pleadings be served on that department. Pursuant to this order, Plaintiff filed an amended complaint, but again did not serve the Department of Insurance. When more than 120 days after the filing of the amended complaint had passed, Appellant filed another motion to dismiss based on Plaintiff's failure to effect the necessary service of process on the Department of Insurance, alleging that the action had to be dismissed pursuant to rule 1.070(j), Florida Rules of Civil Procedure. Plaintiff offered no evidence to show the exercise of due diligence or good cause for not having served the Department of Insurance. The trial court ordered the motion denied, however; but the order further recited that, "it appearing to the Court that the Department of Insurance has not been served with process as ordered by Order of June 25, 1990," it is ordered that "plaintiff has to serve the Department of Insurance of the State of Florida with service of process before jurisdiction is conferred with respect to T. Edward Austin, as State Attorney of the Fourth Judicial Circuit of Florida."
Appealing this order, Appellant contends that the requirement of service within 120 days found in rule 1.070(j) is mandatory, and that the trial court erred in failing to dismiss the complaint for failure to serve the Department of Insurance within the 120-day period specified in the rule. We agree with this contention. In Morales v. Sperry Rand Corp., 601 So.2d 538 (Fla.1992), upon reviewing the district court of appeal's decision strictly construing and applying rule 1.070(j) to require dismissal of the action for the plaintiff's failure to serve process on the defendant within the stated time period, the supreme court made it abundantly clear that the 120-day period specified in the rule is to be strictly applied to effect its purpose, stating:
For rule 1.070(j) to fulfill its mission of assuring diligent prosecution of lawsuits once a complaint is filed, the district court's conclusion and analysis must be approved. We do not believe that the rule is unduly harsh in that the trial judge has broad discretion under Florida Rule of Civil Procedure 1.090(b) to extend the time limitation if reasonable grounds are asserted before the 120-day period expires. Likewise, the trial judge has broad discretion in declining to dismiss an action if reasonable cause for the failure to effect timely service is documented.
Id. at 540. Since Plaintiff in the case before us neither...
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...granted dismissal. 4 At the time Khandjian was written, the only court that had addressed the jurisdictional issue was Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1992). In that case, the court affirmed the order that granted dismissal, noting that the district court cases that denied rev......
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...660 (Fla. 5th DCA 1994); Comisky v. Rosen Management Serv., Inc., 630 So.2d 628, 631 (Fla. 4th DCA 1994) (en banc); Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1992). Defendant's reliance on Gondal v. Martinez, 606 So.2d 490 (Fla. 3d DCA 1992), is misplaced. In Gondal, the trial court's p......
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