Palomino v. Federal Nat. Mortg. Ass'n, 86-1434

• Decision Date: 03 March 1987
• Docket Number: No. 86-1434,86-1434
• Citation: 504 So.2d 445
• Parties: Ruby PALOMINO, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
• Court: Florida District Court of Appeals

Page 445

504 So.2d 445

Ruby PALOMINO, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.

No. 86-1434.

District Court of Appeal of Florida Third District.

March 3, 1987.

Rehearing Denied April 20, 1987.

Alec Ross, North Miami Beach, for appellant.

Gitlitz, Keegan & Dittmar and Stuart Gitlitz, Miami, for appellee.

Before NESBITT, BASKIN and JORGENSON, JJ.

PER CURIAM.

Ruby Palomino seeks reversal of the trial court's order denying her motion to quash service by publication. The affidavit of Federal National Mortgage Association, plaintiff below, states, among other things, that "[d]efendant(s) have concealed themselves [sic] so that process can be personally served upon them [sic]...." (Emphasis supplied.) Palomino contends that the affidavit was insufficient to support constructive service pursuant to sections 49.011(1), .021(1), .031-.041, Florida Statutes (1985). We agree.

As a prerequisite to utilizing constructive service of process, plaintiff must establish the threshold requirement: inability to effectuate personal service. Taylor v. Lopez, 358 So.2d 69 (Fla. 3d DCA 1978); §§ 49.021(1), .041, Fla.Stat. (1985); ¹ see Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225 (Fla.1986); see also Burton v. Burton, 448 So.2d 1229 (Fla. 2d DCA 1984) (constructive service of process proper in dissolution of marriage action when personal service cannot be had); Shefer v. Shefer, 440 So.2d 1319 (Fla. 3d DCA 1983) (same). Statutes permitting constructive or substituted service of process are strictly construed, and plaintiff has the burden of demonstrating the validity of substituted service. Taylor; Callaghan v. Callaghan, 337 So.2d 986 (Fla. 4th DCA 1976); Fleischman v. Morris, 260 So.2d 278 (Fla. 3d DCA 1972); see Young Spring & Wire Corp. v. Smith, 176 So.2d 903 (Fla.1965); Leviten v. Gaunt, 360 So.2d 112 (Fla. 3d DCA 1978). In the case before us, plaintiff's affidavit states that personal service can be effected; the affidavit is therefore facially insufficient to justify the use of constructive service. Thus the trial court did not acquire jurisdiction over Palomino.

Reversed and remanded with directions to quash service of process.

JORGENSON, Judge, dissenting.

I respectfully dissent.

Palomino alleged that the return of service affidavit did not comply with section 49.041, Florida Statutes (1985). The trial court held a hearing at which the burden of demonstrating proper service was upon Federal National. No record of that hearing was made. In denying Palomino's motion to quash service of process, the trial court had to have found that Federal National had made the necessary diligent search and inquiry. See Johnstone v. J.W. English Enters., Inc., 155 So.2d 835 (Fla 3d DCA 1963); § 49.041, Fla.Stat. (1985). Since no record was made of the hearing, we must assume that the trial court acted correctly and inquired into the circumstances of Federal National's search for Palomino, including the concededly ambiguous assertions made by Federal National in its affidavit. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). Because of the presumption of correctness of the trial court's actions and because Palomino has not demonstrated error, I would affirm.

1 Section 49.021(1) provides:

49.021 Service of process by publication, upon whom.--Where personal service of process cannot be had, service of process by publication may be had upon any party, natural or corporate, known or unknown, including:

(1) Any known or unknown natural person, and, when described as such, the unknown spouse, heirs, devisees, grantees, creditors or other parties claiming by, through, under or against any known or unknown person, who is known to be dead or is not known to be either dead or alive.... (Emphasis supplied.)

Section 49.041 states:

49.041 Sworn statement, natural person as defendant.--The sworn statement of the plaintiff, his agent or attorney, for service of...