Demars v. Village of Sandalwood Lakes Homeowners Ass'n, Inc.
| Decision Date | 07 April 1993 |
| Docket Number | No. 91-3504,91-3504 |
| Citation | 625 So.2d 1219 |
| Court | Florida District Court of Appeals |
| Parties | 18 Fla. L. Weekly D911 Mark H. DEMARS, Appellant, v. VILLAGE OF SANDALWOOD LAKES HOMEOWNERS ASSOCIATION, INC. and Gaetan J. Gagne, Inc., Appellees. |
On motion for rehearing we allowed the Real Property Probate and Trust Law Section of the Florida Bar to file an amicus brief addressing the question of whether a judgment is void (not merely voidable) when jurisdiction is based on a "bare bones" affidavit for constructive service. Our original opinion declared that such a judgment was void. We now conclude that we were in error. We grant rehearing and withdraw our prior opinion.
Appellant challenges the trial court's orders denying his motion to vacate a final judgment and set aside a sheriff's sale, and granting an intervenor's motion to discharge a lis pendens. The issue presented contests the validity of constructive service based upon an affidavit of diligent search and inquiry. We reverse.
In 1987, appellant purchased a townhouse in the Village of Sandalwood Lakes. In 1990 appellee filed a claim of lien for unpaid assessments and later filed an action to foreclose that claim of lien. In April of 1991, appellee's attorney filed an Affidavit of Diligent Search, reprinted herein in its entirety.
1. That Affiant is the attorney for the Plaintiff in the above-styled cause.
2. That the Defendant is over the age of eighteen (18) years of age.
3. That a diligent search and inquiry has been made to discover the residence of the Defendant, MARK H. DEMARS.
4. That the Defendant's last know address is 801 8th Way[,] West Palm Beach, Florida 33407.
5. That on October 3, 1990 a certified process server in good standing unsuccessfully attempted service of process upon the Defendant, who does not reside at the subject residence. A copy of the servers's [sic] return is attached hereto as Exhibit "A".
6. That on February 18, 1991 a certified process server in good standing unsuccessfully attempted service of process upon the Defendant, who does not reside at the subject residence. A copy of the servers's [sic] return is attached hereto as Exhibit "A".
7. That no forwarding address has been located.
8. That the Defendant's place of residence is unknown.
9. Affiant believes that there is no person in the state of Florida upon whom Service of Process would bind.
Based upon that affidavit, appellee published notice of its lawsuit, and when no response was filed, appellee obtained a default and final default judgment against appellant. At the foreclosure sale, Gerard LaLiberte, a nonparty to the foreclosure action, bought the town house and resold it to Gaetan J. Gagne, Inc., another nonparty. After learning about the sale of his property, Demars moved to vacate the final judgment of foreclosure and foreclosure sale. Demars alleged that the final judgment and sale were defective, because Sandalwood Lakes had failed to exercise due diligence in attempting to serve him with personal process. Demars also filed a notice of lis pendens on the town house.
The trial court held a hearing at which appellant called appellee's attorney as a witness to the efforts of diligent search that the attorney had made to discover appellant's address. The affidavit itself listed only two attempts by a process server to serve appellant at the town home. The notation on the return was that the home was being rented but the tenant did not know how to get in touch with appellant. The attorney testified that he checked the chain of title on the property. He was aware that there was a mortgage on the property. The attorney called the mortgage holder and, without notifying the bank that he was in the process of foreclosing on the property, asked the person on the phone whether the bank would divulge any information that they might have that could help locate appellant. Because the attorney had made similar calls to lending institutions in the past without receiving information, he did not expect to receive such information and did not. However, he never followed up the phone call with a letter, or, as appellant's attorney suggested, by subpoena of the bank's records. He also called Florida Power and Light, which also refused to reveal any information regarding appellant. The attorney also knew from past experiences that they would not divulge such information over the phone, yet the attorney made no follow-up of his telephone call. He also checked the condominium association's records. The property manager of the association also tried to get information from the tenants in the town home without success. She left a business card at the home. Sometime around the time when constructive service was being undertaken, she saw what she thought might be a legal notice posted on the door of the town home, but she did not go and investigate it. It was in fact a notice of eviction of tenants in a suit instituted by appellant through an attorney. The attorney's address was on this notice, and had he been contacted he could have supplied appellant's address. Based upon this proof, the court denied the motions. This appeal ensued.
In this case the affidavit alleged that the attorney had made diligent search and inquiry but outlined only two attempts at service of process as proof of that diligent search. We have held many times that proof of a few attempts at service of process are insufficient to prove diligent search. See e.g., Tulpere v. Duval Fed. Sav. & Loan Ass'n, 548 So.2d 1190 (Fla. 4th DCA 1989); Hobe Sound Indus. Park, Inc. v. First Union Nat'l Bank, 594 So.2d 334 (Fla. 4th DCA 1992); Robinson v. Cornelius, 377 So.2d 776 (Fla. 4th DCA 1979).
The problem in this case occurs as to whether a factually insufficient affidavit renders the judgment entered in reliance thereon absolutely void or merely voidable. It is our conclusion that it renders the judgment voidable.
From our analysis of the decisional law, the statement of diligent search and inquiry in the affidavit makes it facially sufficient to support the issuance of constructive service by publication and thus any judgment rendered pursuant to such service is not void but may be voidable at the instance of the affected party. To declare otherwise seriously impairs the marketability of title to real property which has become the subject of judgments rendered on the basis of constructive service.
Constructive service statutes are nothing new. The first such statute was enacted in Florida in 1828. See History of Constructive Service of Process, 2 West's Fla.Stat.Annot. p. 299. In McDaniel v. McElvy, 91 Fla. 770, 108 So. 820 (1926), the court construed a prior constructive service statute. That enactment required the bill of complaint to "state" that the names and residence of persons interested were unknown and had not been ascertained after diligent inquiry. At one other part the legislation required the complainant to show that diligent search and inquiry for unknown defendants had been made. Id. 108 So. at 832. The court noted that the statutes of other states required that the affidavit of publication set forth the facts showing diligence in inquiry. Distinguishing the Florida statute, the court noted that the use of the word "show" in the statute was subsidiary to the language that complainant "state" the fact (of due diligence), "and it was not intended by the legislature as a requirement that the complainant allege the facts tending to support that allegation as a condition precedent to the issuance of process." Id. 108 So. at 832.
We do not regard the provision of chapter 11383 as requiring the complainant to allege the facts which support his sworn statement or allegation with reference to interested persons whose names and residences are unknown, or his lack of knowledge and his inability to ascertain whether the defendants are dead or alive, so long as such allegations strictly follow the statute....
But, while allegations of a categorical nature which follow the words of the statute are sufficient as a predicate for the issuance of the order of publication, the chancellor is not thereby precluded from requiring appropriate proof of those allegations, as any other allegations, as a prerequisite to the entry of a decree....
For the chancellor to carefully review the sufficiency of the process before entering a final decree, as a means of ascertaining whether the court has acquired jurisdiction, is not only permissible, but it should be ... the universal and invariable procedure.... (emphasis added)
Later in Catlett v. Chestnut, 107 Fla. 498, 146 So. 241 (1933), the court distinguished between a failure to pursue the essential requirements of the statute and the defective presentation of those elements. A judgment based upon the failure to pursue the essential requirements of the statute is void. But a judgment based upon an affidavit which shows each material statutory fact, even if defective or insufficient, renders the proceedings merely voidable, not void. 146 So. at 244. This conclusion was followed in Klinger v. Milton Holding Co., 136 Fla. 50, 186 So. 526 (1938), also decided under a predecessor statute. The court held that a "bare bones" affidavit complied with the statute, but if a lack of due diligence before the filing of the affidavit in stating that the residence of the defendant was unknown could be shown, then the judgment rendered in accordance...
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