Gmaz v. King
| Decision Date | 19 August 1970 |
| Docket Number | No. 69--376,69--376 |
| Citation | 238 So.2d 511 |
| Parties | William S. GMAZ and Joanna L. Vann, Appellants, v. D. J. KING, Appellee. |
| Court | Florida District Court of Appeals |
Arthur N. Knudsen, Jr. of Allen, Knudsen, Swartz, Richardson & DeBoest, P.A., Fort Myers, for appellants.
William L. Stewart, of Stewart & Stewart, Fort Myers, for appellee.
As a result of appellee's prior quiet title suit plaintiffs-appellants were divested of their title to certain real property in Lee County which was ostensibly held at that time by appellee under a tax deed. The final judgment in that suit was predicated upon a default entered against appellants who were purportedly brought into that action by constructive process. This action is to set aside the default in that quiet title suit, and the final decree entered thereon, for the reason that appellants received no notice thereof. They charge lack of 'diligent search and inquiry' on the part of appellee in effecting the constructive process therein. The trial judge dismissed the present action with prejudice and this appeal ensued. We reverse.
At the outset we point out that appellants may well have a good defense to the quiet title action since the tax deed held by appellee is apparently void because of insufficiency of notice in the tax deed proceeding. Indeed, the trial judge so held. But he dismissed the present suit under the doctrine of res judicata, holding that '* * * the search and inquiry in the quiet title suit * * * was sufficient as a matter of law and the (decree) is valid.' The patent question before us, then, is the adequacy of that search and inquiry as measured against the requirements inherent in § 48.04(1), F.S. 1965. 1
We are aided in our labors by a stipulation of all relevant facts touching on the question, for which we commend counsel. These facts, of course, reflect considerable effort on the part of appellee tending to satisfy the requisites of the statute; but we're here more concerned with what he Didn't do when charged with knowledge of certain material relevant facts.
The pertinent stipulated facts reveal that at all times material herein the appellants were record owners of the subject property. In 1963, one Hansen and wife purchased a tax certificate on the subject property for the taxes due and unpaid for 1962. The taxes for 1963 and 1964 were paid by appellants themselves.
In 1965, the Hansens made application for a tax deed pursuant to the prescribed proceedings set forth in § 194.15, et seq., F.S.A. Appellee was high bidder in these proceedings and in due course received a tax deed on August 16, 1965. Significantly, during these proceedings a required 'Notice of Application for Tax Deed' was mailed by the Clerk of the Circuit Court to appellants at 948 Farwood Avenue, Dayton, Ohio. This was the address of appellants As listed on the tax rolls of Lee County. The notice was returned to the clerk by the postal authorities marked 'NO SUCH STREET', and the envelope so marked was placed in the original clerk's file of the proceedings. Two other mailings of the aforesaid 'Notice' were made with various spellings of Farwood Avenue, but they were also returned similarly marked. Apparently, no further inquiry or effort was made by the clerk.
Thereafter, and armed with his tax deed, appellee filed the aforesaid quiet title suit on September 17, 1965, attempting service by the constructive-process questioned herein. Such process was predicated on his affidavit that the residences of appellants were unknown, and he obtained his final decree entered upon default as aforesaid.
It is clear, then, that the critical time period involved is from early July, 1965 through September, 1965. During this period, the actual and true address of the appellant-Gmaz was 948 Larriwood Avenue, Dayton, Ohio; 2 and this true address was listed in two places in the public records of Lee County during the time with which we are concerned, i.e., it appeared on the tax receipt for the 1964 taxes paid by appellants, which receipt was recorded in the Receipt Book maintained by the tax collector, and it appeared on the tax assessor's 'field card' which is a work sheet commonly maintained on each parcel of real estate in the county for assessment purposes. Both the Receipt Book and 'field cards' are open and available to public inspection. The precise question devolving, therefore, is whether appellee was bound by the precept of 'diligent search and inquiry' to examine the Tax Receipt Book maintained by the tax collector 3 and/or the 'field cards' maintained by the tax assessor.
The principle involved herein is clearly outlined in Klinger v. Milton Holding Co.: 4
'When a complainant resorts to constructive service, he should make an honest and conscientious effort, Reasonably appropriate to the circumstances, to acquire the information necessary to fully comply with the controlling statutes, to the end that the defendant, If it be reasonably possible, may be accorded notice of the suit.' (Emphasis supplied)
and the full test of this principle is '* * * whether the complainant Reasonably employed knowledge at his command' in making the appropriate effort spoken of. (Italics supplied) 5 Where personal service of process cannot be had, then service of process by publication may be had upon the filing of an affidavit on plaintiff's behalf stating the residence of the person to be served as particularly as is known after 'diligent search and inquiry.' 6 In addition to the publication required as aforesaid, notice of the suit must be mailed to such address as 'diligent search and inquiry' may cause to be discovered. 7 We note, parenthetically, the strict compliance with these statutory procedures, at the peril of rendering the proceedings void, is rudimentary. 8
Now, personal service in the quiet title suit involved herein was concededly impossible, so we allude to the foregoing principles of diligence and the statutory requirements in such case. We construe them in totality to require that when a 'red flag' is waved to a complainant notifying or warning him of facts which put him on a reasonable course of inquiry as to the whereabouts or residence of a party-defendant to his law suit, he is bound to follow that course to its logical end.
Here, first of all, appellee acquired his tax deed at the aforesaid proceedings conducted by the clerk on the application of the Hansens. The official records of those proceedings revealed that the address in Ohio to which the clerk mailed the required 'notice' to the record owners was nonexistent. This is patent from the...
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...stating the residence of the person to be served as particularly as is known after `diligent search and inquiry.'" Gmaz v. King, 238 So.2d 511, 514 (Fla.Dist. Ct.App.1970) (quotation In the instant case, the Government's sworn submissions are conspicuously short on the specific facts and de......
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Mouzon v. Mouzon
...under it because the legislature intended personal service in preference to service by publication. As stated in GMAZ v. King, 238 So.2d 511, 514 (Fla. 2d DCA 1970), quoting from the holdings in McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 831 (1926) and Klinger v. Milton Holiday Company, ......
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...filed under the names "Saunders and Hinton" and then inspecting other materials filed under the same label. Cf. Gmaz v. King, 238 So.2d 511, 514-15 (Fla.Dist.Ct.App.1970) (plaintiff did not perform "diligent search and inquiry" for address of defendant before resorting to constructive servi......
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...controlling statutes, to the end that the defendant, if it be reasonably possible, may be accorded notice of the suit.’” [ Gmaz v. King , 238 So. 2d 511, 514 (Fla. 2d DCA 1970) (quoting Klinger v. Milton Holding Co. , 186 So. 526, 534 (1939)).] A defendant can challenge service by publicati......