McAlice v. Kirsch

• Citation: 368 So.2d 401
• Decision Date: 27 February 1979
• Docket Number: No. 78-651,78-651
• Parties: Gerald D. McALICE, Appellant, v. Ralph KIRSCH and Marion Andersen, Trustees, Appellees.
• Court: Court of Appeal of Florida (US)

Page 401

368 So.2d 401

Gerald D. McALICE, Appellant, v. Ralph KIRSCH and Marion Andersen, Trustees, Appellees.

No. 78-651.

District Court of Appeal of Florida, Third District.

Feb. 27, 1979.

Rehearing Denied March 30, 1979.

Gelb & Spatz and Carl A. Spatz, Miami, for appellant.

Harry A. Payton, Miami, David Slachter, South Miami, for appellees.

Before HENDRY and KEHOE, JJ., and EZELL, BOYCE F., Jr., (Ret.) Associate Judge.

HENDRY, Judge.

This is an appeal taken by the defendant in a mortgage foreclosure action seeking review of the trial court's order denying his motion for relief from entry of default final judgment. The plaintiffs/appellees/cross-appellants, Kirsch and Andersen, seek review of the trial court's determination of the amount of their attorney's fees.

The dispositive question of this appeal is whether the attempted constructive service upon appellant was perfected so as to give the trial court jurisdiction. Appellant urges the constructive service upon him under Chapter 49, Florida Statutes did not conform to the statutory requirements in that (a) appellant had received defective notice of the proceeding because it was addressed to another defendant, not a party to this appeal, and it was accompanied by a copy of the original complaint rather than a copy of the amended complaint the former did not name appellant McAlice as a defendant, the latter did name him as a defendant, and (b) there was lack of "diligence search and inquiry" to justify constructive service by publication rather than personal service of process.

After appellant failed to timely respond, the appellees secured entry of default; within ten days, and prior to entry of final judgment, McAlice moved to vacate the default on the basis of defective service of process, lack of diligent search and inquiry and existence of meritorious defense. After hearing, the court reserved ruling on the motion pending an evidentiary hearing on whether there had been "diligent search and inquiry" as to McAlice's residence address. At the time of evidentiary hearing, the trial court confined the evidence to the issue of whether constructive service had been effected in compliance with the statute. The court denied the motion and entered a default final judgment of mortgage foreclosure. Thereafter, McAlice timely filed a motion under rule 1.540 for relief from entry of default final judgment and the court denied the motion.

It is a fundamental principle of law that the constructive service statute is strictly construed against a plaintiff who seeks to obtain service of process under it. GMAZ v. King, 238 So.2d 511 (Fla. 2d DCA 1970); Callaghan v. Callaghan, 337 So.2d 986 (Fla. 4th DCA 1976); Mayo v. Mayo, 344 So.2d 933 (Fla. 2d DCA 1977). As stated in GMAZ, supra, at 514, quoting from the holdings in McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 831 (1926) and Klinger v. Milton Holding Company, 136 Fla. 50, 67-68, 186 So. 526, 534 (1938) " '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.' (The) full test of this principle is whether the complainant reasonably employed knowledge at his command in making the appropriate effort spoken of. 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.' In addition to the publication required . . . notice of the suit must be mailed to such address as 'diligent search and inquiry' may cause to be discovered. We note, parenthetically, the strict compliance with these statutory procedures, at the peril of rendering the proceedings void, is rudimentary."

Appellees, while they acknowledge certain defects in the service, maintain that the appellant is estopped to question the jurisdiction of the court in an action if he invokes the jurisdiction of that court in a subsequent action involving the same subject matter. Shurden v. Thomas, 134 So.2d 876 (Fla. 1st DCA 1961). In the instant case, McAlice did, in fact, file a quiet title action on the same real property; the suit was filed three days after Kirsch and Andersen had filed the affidavits to secure constructive service by publication upon appellant in the foreclosure action, and over two months subsequent to appellees' institution of foreclosure suit.

The appellate court in Shurden affirmed the trial court order and held that Shurden could not assert insufficiency of service of process...