Henzel v. Noel

• Decision Date: 08 May 1992
• Docket Number: No. 91-1509,91-1509
• Citation: 598 So.2d 220
• Parties: 17 Fla. L. Weekly D1167 Leo HENZEL, Appellant, v. Isabella NOEL, etc., Appellee.
• Court: Florida District Court of Appeals

Page 220

598 So.2d 220

17 Fla. L. Weekly D1167

Leo HENZEL, Appellant, v. Isabella NOEL, etc., Appellee.

No. 91-1509.

District Court of Appeal of Florida Fifth District.

May 8, 1992.

James H. Lesar, Washington, D.C., for appellant.

Eric C. Barkett of Williams, Smith & Summers, P.A., Tavares, for appellee.

COBB, Judge.

Leo Henzel appeals from a non-final order denying his motion to dismiss or quash service of process. We find that Henzel was not properly served and reverse.

Isabella Noel filed suit against Henzel, a resident of New York, alleging that he owed her money on seventeen promissory notes. After several summonses had been returned unserved, a pluries summons was issued on March 2, 1990. After attempting service two times, the server placed a copy of the summons and complaint under Henzel's door and later mailed a copy of the documents to the residence. The trial court denied Henzel's motion to quash service of process.

Section 48.031(1), Florida Statutes (1991) provides:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint ... or by leaving the copies at his usual place of abode with any person residing therein who is fifteen years of age or older and informing the person of their contents.

Service of process on persons outside the State of Florida is made in the same manner. Sec. 48.194, Fla.Stat. (1991). These statutes are to be strictly construed to insure that the defendant is given notice of the proceedings. Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla.1977). The burden of proof to sustain the validity of service of process is on the party seeking to invoke the jurisdiction of the court. Carlini v. State Department of Legal Affairs, 521 So.2d 254 (Fla. 4th DCA1988).

The parties agree that the summons and complaint were neither delivered to Henzel personally nor left at his home with another resident. However, Noel argues that since Henzel had deliberately attempted to avoid service of process, leaving the summons and complaint at Henzel's abode satisfied section 48.031. Noel relies, inter alia, on Haney v. Olin Corp., 245 So.2d 671 (Fla. 4th DCA1971) and Olin Corp. v. Haney, 245 So.2d 669 (Fla. 4th DCA1971).

The Haney cases involved service of process on a husband and wife, Russell and Wava Haney. The deputy sheriff, parked in a car on the street in front of the Haney residence, observed Mrs. Haney and another woman leave the house and walk towards the street. Mr. Haney remained standing in the front doorway. The deputy sheriff approached the women and identified himself. Mrs. Haney immediately turned and ran into the house yelling, "No! No!" The deputy followed her, but the front door closed in his face before he could reach the Haneys. He knocked on the door, rang the doorbell, identified himself and stated that he had copies of a summons and complaint to be served on Mr. and Mrs. Haney. When no one would answer the door, he read the summons in a loud voice and announced that he was leaving a copy of the summons and complaint on the doorstep for Mr. Haney and another copy with Mr. Haney as service on his wife. The Fourth District held that this was sufficient service of process for both Mr. and Mrs. Haney. With respect to Mr. Haney, it found that an officer's reasonable attempt to effect personal service of process upon a person at his home, when the person reasonably should have known the officer's identity and purpose, cannot be frustrated by the person closing the front door in the officer's face and willfully refusing to accept service. With respect to Mrs. Haney, it found that when the person to be served flees in a deliberate attempt to avoid service, the statutory delivery requirement may be satisfied if the process server leaves the papers at a place from which the person may easily retrieve them and takes reasonable steps to call such delivery to the attention of the person to be served.

In Liberman v. Commercial National Bank of Broward County, 256 So.2d 63 (Fla. 4th DCA1971), Liberman ran into his house and closed the door after seeing the process server, a deputy sheriff. The deputy left...