Linn v. Kidd, 97-4676

• Decision Date: 03 August 1998
• Docket Number: No. 97-4676,97-4676
• Citation: 714 So.2d 1185
• Parties: 23 Fla. L. Weekly D1855 Richard Dale LINN and Laura J. Linn, Appellants/Defendants, v. Lula Lee KIDD, Appellee/Plaintiff.
• Court: Florida District Court of Appeals

Page 1185

714 So.2d 1185

23 Fla. L. Weekly D1855

Richard Dale LINN and Laura J. Linn, Appellants/Defendants, v. Lula Lee KIDD, Appellee/Plaintiff.

No. 97-4676.

District Court of Appeal of Florida,

First District.

Aug. 3, 1998.

Peter S. Roumbos of Young & Associates, P.A., Pensacola, for Appellants/Defendants.

Randle D. Thompson, Pensacola, for Appellee/Plaintiff.

LAWRENCE, Judge.

Lula Lee Kidd (Kidd) filed suit against Richard Dale Linn and his wife Laura J. Linn (the Linns) for injuries sustained in a two-car accident which occurred in Escambia County, Florida, on December 10, 1992. Kidd was a passenger in an automobile operated by Mary K. Dumas. The trial court denied the Linns' motion to dismiss which was based upon insufficiency of service of process. We reverse.

The Linns were residents of the state of Tennessee when service of process in the instant suit was attempted, although they were formerly residents of the state of Florida at the time of the accident. Kidd attempted personally to serve the Linns at a Florida address on two separate occasions, but was unsuccessful. Kidd next sought to serve the Linns by using substituted service of process pursuant to sections 48.161 and 48.171, Florida Statutes (1995). ¹ The Secretary of State accepted service for the Linns on May 6, 1997. Kidd, by certified mail with return receipt requested, sent copies of the Secretary of State's acceptance of the summonses and complaints to the Linns at their former Florida address, but the documents were returned and marked "Return to Sender: Attempted--Not Known." Thus, no signed return receipt was obtained and the record does not otherwise contain a signed return receipt for the summonses and complaints as required by the statute. All of the foregoing efforts at perfecting service of process were accomplished within the time provisions of Florida Rule of Civil Procedure 1.070(j), as Kidd timely moved for and obtained an order extending the 120-day initial period for an additional sixty days.

The law firm representing Kidd in the instant suit also represented Mary K. Dumas in a claim against the Linns arising from the same accident. Before the instant suit was commenced, the Linns filed an affidavit in the Dumas suit which reflected a facsimile number from Richard Linn's place of employment in Tennessee. However, this evidence relating to the Linns' place of residence at the time was not investigated by Kidd.

The Linns argue that Kidd failed to perfect service of process by failing to make a diligent search and inquiry to determine their residence, and by failing to obtain and file a return receipt from the Linns as required by section 48.161. They further argue that the appropriate disposition is dismissal of the action.

Kidd argues that substituted service of process was sufficient, citing Richardson v. Williams, 201 So.2d 900 (Fla. 2d DCA 1967). In the alternative, Kidd argues that despite invalid service, the Linns nevertheless submitted to the jurisdiction of the court by filing a "Proposal For Settlement" in the action. Kidd further argues in the alternative that should this court find that she failed to perfect service, the proper remedy would not be dismissal, but rather to quash the attempted service of process without prejudice to perfect service in any manner provided by law.

Strict compliance with the substituted service of process statute is required. Gloucester Eng'g, Inc. v. Mendoza, 489 So.2d 141 (Fla. 3d DCA 1986); Shiffman v. Stumpff, 445 So.2d 1104 (Fla. 4th DCA 1984). As the court in Wyatt v. Haese, 649 So.2d 905 (Fla. 4th DCA 1995), explained:

Perfection of substituted service requires strict compliance with the statutory prerequisites because such service is an exception to personal service. Here the statute has three requirements: (1) notice sent by registered or certified mail; (2) the defendant's return receipt; and (3) the affidavit of compliance.

Wyatt, 649 So.2d at 907 (citations omitted). In Wyatt, the defendant did not execute a return receipt as required by section 48.161. In addition, the postal endorsement on the returned certified letter read "UNCLAIMED," while the endorsement on the non-certified letter read "NOT AT THIS ADDRESS." Id. The court held that these postal endorsements "do not reflect that appellant intentionally failed or refused to claim the notices." Id. The court noted that "no conclusion can be drawn that the failure to deliver process was caused by the defendant rejecting the mail. Consequently, the statutory requirement was not met as no return receipt for the certified mail was obtained, nor can an inference of intentional rejection be made from the record." Id. (citations omitted). The Wyatt court explained that "[t]he purpose of service, substituted or otherwise, is to provide the defendant with notice so that he might exercise his opportunity to be heard." Id. at 908. The facts in the instant case are similar in that there was no return receipt for the certified letters present in the record. The envelopes of the letters sent to the Linns show that the letters were returned as undeliverable, with no indication that the Linns intentionally refused the letters. It is apparent that the letters were undeliverable because the Linns, at the time, were no longer living in Florida, but rather were residing in Tennessee. ²

Richardson provides an exception to the requirement of filing a receipt by the defendant where the correct address and residence of the defendant was established, but service was effectively refused by failing to claim copies of the suit papers. In contrast, Kidd did not exercise due diligence in her search to locate the Linns. Kidd's only effort to locate the Linns was to send certified letters to an address which a diligent search and inquiry would have shown was no longer the residence of the Linns. Kidd failed to investigate an obvious investigative lead, namely, the affidavit from Tennessee filed by Richard Linn in the Dumas case. We conclude that Kidd did not make a diligent search and inquiry, and that a return receipt from the Linns was required in order to perfect substituted service...