Drake v. Scharlau
| Decision Date | 13 January 1978 |
| Docket Number | No. 77-895,77-895 |
| Citation | 353 So.2d 961 |
| Parties | Chester O. DRAKE and Beacon Mutual Indemnity Company, a Foreign Corporation, Appellants, v. Rosemarie SCHARLAU and Karen Scharlau, Appellees. |
| Court | Florida District Court of Appeals |
Charles P. Schropp of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellants.
B. Lee Elam, Brandon, for appellees.
Appellants/defendants challenge by way of this interlocutory appeal an order determining that appellees/plaintiffs have obtained jurisdiction over the persons of appellants. We reverse.
Appellees filed a personal injury action alleging that appellant Drake negligently operated his motor vehicle so that it struck a vehicle owned by appellee Rosemary Scharlau and driven by appellee Karen Scharlau in Zephyrhills, Florida on June 30, 1975. The complaint also alleged that appellant Beacon Mutual Indemnity Company (hereinafter "Beacon") had issued an automobile liability insurance policy to appellant Drake and, further, that at all times pertinent herein Beacon was engaged in the automobile liability insurance business in the State of Ohio. The complaint made no allegations as to the residence of Drake.
Appellees unsuccessfully attempted personal service on appellant Drake by the Sheriff of Pasco County in late June 1976. Appellees then attempted substituted service of process on Drake by serving the Secretary of State under Section 48.171, Florida Statutes (1975) and on Beacon by serving the Insurance Commissioner under Section 626.907(1), Florida Statutes (1975). 1
Appellants then moved to quash process and service of process. On December 6, 1976 an order was entered granting these motions.
Thereafter, appellees again tried to effect substituted service of their original complaint, without any amendment, on appellants Drake and Beacon. Appellants again "specially appeared" and moved to quash process and service of process. Drake's motion summarily alleged that the process and service thereof were insufficient as a matter of law. Beacon's motion averred that it is an Ohio corporation not authorized to do, and not doing, business in Florida; that the policy allegedly issued to Drake was written in Ohio for a resident of Ohio and was issued and delivered in Ohio; and that appellees' complaint contained no allegations of any kind connecting Beacon with Florida. Attached to Beacon's motion to quash was a supporting affidavit of one Metzger, claim representative of Beacon, declaring that Beacon is an Ohio corporation that does not do Business in Florida; that Beacon did not issue or deliver any policy of insurance to Drake in the State of Florida; and that Beacon has no contacts with the State of Florida.
Thereafter, appellees filed a motion seeking an order determining that they had obtained jurisdiction over appellants. Hearing was had on this motion and on March 25, 1977 an order was entered ordering appellees to file an amended complaint alleging that at the time of the accident appellant Drake was a resident of Florida. The order further provided, The order further declared that a copy of the amended complaint should be served on the attorney for appellants.
Appellees subsequently filed an amended complaint which differed from their original complaint only in that it alleged that appellant Drake was a resident of the State of Florida at the time of the accident and that appellant Beacon was engaged in the automobile liability insurance business in the State of Florida at all times pertinent herein. The amended complaint was not served by personal or substituted service on either appellant, but was merely hand delivered to the attorney of record for appellants.
Thereafter, appellants filed a motion to clarify or correct the order dated March 25, 1977, along with a supporting affidavit of their attorney of record stating that he was not authorized to accept service of process on either appellant. 2
Appellants' motion was heard, and an amended order dated May 4, 1977 resulted. The amended order incorporated the above-mentioned order of March 25, 1977; denied Beacon's motion to quash process and service of process (no express denial of Drake's similar motion was made); granted appellees' motion to determine that they had obtained jurisdiction over appellants; and ordered appellants to answer within twenty days. This interlocutory appeal ensued.
To support substituted service of process on a defendant, the complaint must allege the jurisdictional requirements prescribed by statute. If it fails to do so, then a motion to quash process and service of process should be granted. Esberger v. First Florida Business Consultants, Inc., 338 So.2d 561 (Fla. 2d DCA 1976); Henschel-Steinau Company v. Harry Schorr, Inc., 302 So.2d 198 (Fla. 4th DCA 1974).
Appellees' original complaint made no allegation concerning the residence of Drake and thus did not contain the jurisdictional allegations necessary to constitute the Secretary of State as Drake's agent for substituted service of process, i. e., that Drake was a nonresident, a resident of Florida who subsequently became a nonresident, or a resident of Florida concealing his whereabouts. See Section 48.171, Florida Statutes (1975).
Likewise, the amended complaint does not contain the necessary jurisdictional allegations as to Drake. It alleges that Drake was a resident of the State of Florida at the time of the accident, and nothing more. This allegation, standing alone, defeats substituted service under the statute and case law cited above. On the face of appellees' amended complaint, appellant Drake is only amenable to personal service, if and when he may be found within the State of Florida.
Since the record discloses that appellees have not validly served appellant Drake by personal service, substituted service, or otherwise as provided by law, the trial court erred in the amended order adjudging that it had jurisdiction over the person of appellant Drake.
Before we turn our attention to appellant Beacon, it is necessary to comment that merely hand delivering a copy of the amended complaint in this case to the attorney of record for appellant Drake would not have constituted lawful service upon Drake, even if we assume, arguendo, that the amendment to the original complaint cured the jurisdictional deficiencies of the original complaint's allegations (which it, in fact, did not, for the above-stated reasons). A defendant is entitled to service of valid original process and a copy of the initial pleading upon him by personal service or upon his statutory agent by substituted service in accordance with the Florida Statutes and the Rules of Civil Procedure. This must be done for the court to have jurisdiction over the person of the defendant. It was not done here. Only when the paper served is a pleading subsequent to service of the original process and initial pleading may valid service be made upon a party's attorney. Compare Fla.R.Civ.P. 1.070 with Fla.R.Civ.P. 1.080. 3
Now, with respect to appellant Beacon, it is equally clear that again appellees' original complaint did not contain the jurisdictional allegations necessary to constitute the Insurance Commissioner as Beacon's agent for substituted service of process pursuant to Sections 626.906 and 626.907(1), Florida Statutes (1975). The complaint did not allege any activities whatsoever by Beacon within the State of Florida. On the contrary, the complaint affirmatively alleged that Beacon was engaged in the automobile liability insurance business in the State of Ohio at all times...
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