Redfield Invs. v. Village of Pinecrest

• Decision Date: 03 September 2008
• Docket Number: No. 3D07-1766.,3D07-1766.
• Citation: 990 So.2d 1135
• Parties: REDFIELD INVESTMENTS, A.V.V., a Netherlands Antilles corporation, Appellant, v. VILLAGE OF PINECREST, a Florida municipal corporation, Appellee.
• Court: Florida District Court of Appeals

990 So.2d 1135

REDFIELD INVESTMENTS, A.V.V., a Netherlands Antilles corporation, Appellant, v. VILLAGE OF PINECREST, a Florida municipal corporation, Appellee.

No. 3D07-1766.

District Court of Appeal of Florida, Third District.

September 3, 2008.

Diaz, Reus & Targ, and Chad Purdie and Brant C. Hadaway, Miami; David Alschuler, for appellant.

Cynthia A. Everett, Opa Locka, for appellee.

Before SHEPHERD, CORTIÑAS, and LAGOA, JJ.

SHEPHERD, J.

In this interlocutory appeal, Redfield Investments, A.V.V., a Netherlands Antilles corporation (Redfield), challenges a trial court order denying its motion to quash service of process made upon it by publication. Redfield argues that the service is defective because the sworn statement—a statutorily required condition precedent to setting in motion such service—submitted by the plaintiff, Village of Pinecrest, to the Clerk of Court, pursuant to the State's service by publication statute, is insufficient as a matter of law, and also that Pinecrest failed to complete its statutory obligation to conduct a diligent search to discover the whereabouts of Redfield or an agent upon whom service could be made. We agree with Redfield and reverse.¹

This case arises out of an effort by the Village of Pinecrest to foreclose a lien for unpaid code enforcement fines on an unoccupied residence in the Village limits. Redfield is the record title holder of the property. The foreclosure case was filed on September 12, 2005. The next day, Pinecrest unsuccessfully sought to effectuate personal service on Redfield by serving former counsel, who it knew no longer represented Redfield. That effort having failed, Pinecrest sought to effectuate constructive service upon Redfield pursuant to Chapter 49 of the Florida Statutes, Florida's service by publication statute. Section 49.051, Florida Statutes (2006), contains explicit directions for service of process on a corporation. The statute states the plaintiff "shall show:"

(1) That diligent search and inquiry have been made to discover the true name, domicile, principal place of business, and status (that is, whether foreign, domestic, or dissolved) of the corporate defendant, and that the same is set forth in said sworn statement as particularly as is known to the affiant, and that diligent search and inquiry have also been made, to discover the names and whereabouts of all persons upon whom the service of process would bind the said corporation and that the same is specified as particularly as is known to the affiant; and

(2) Whether or not the corporation has ever qualified to do business in this state, unless shown to be a Florida corporation; and

(3) That all officers, directors, general managers, cashiers, resident agents, and business agents of the corporation, either:

(a) Are absent from the state; or

(b) Cannot be found within the state; or

(c) Conceal themselves so that process cannot be served upon them so as to bind the said corporation; or

(d) That their whereabouts are unknown to the affiant; or

(e) That said officers, directors, general managers, cashiers, resident agents, and business agents of the corporation are unknown to affiant.

§ 49.051 (emphasis added). The service by publication statute further states that upon filing the sworn statement and otherwise complying with the statutory requirements, "the clerk or judge . . . shall" issue a notice of action, which is then published in such newspapers as are permitted by law. § 49.08, Fla. Stat. (2006); see also §§ 49.09-.10, Fla. Stat. (2006).

In this case, Pinecrest proceeded through the Clerk of Court. In the required sworn statement, counsel for Pinecrest averred as follows:

2. The attorney for the Plaintiff has taken the following steps to locate an accurate, current address for the corporation:

a. The Defendant corporation's current principal place of business address, registered agent and corporate officers are unknown. Service of Process delivered to the address of record in the Miami-Dade County Property records was returned.

b. Directory assistance has no listing for Redfield Investments.

c. A Freedom of Information Inquiry, sent to the United States Post Office, has not yet revealed an accurate current or forwarding address for the Defendant d. Inquiry of the Miami-Dade County Tax Collector's Research Department has not yet revealed an accurate current or forwarding address for the Defendant.

e. Inquiry of the Miami-Dade Water and Sewer Department has not yet revealed a forwarding address for the Defendant.

f. Inquiry of the Miami-Dade County Recorders Office has not yet revealed an accurate current or forwarding address for the Defendant.

g. Inquiry of private utility, Florida Power & Light has not yet revealed an accurate current or forwarding address for the Defendant.

h. Inquiry of private telephone company, BELLSOUTH, has not yet revealed an accurate current or forwarding address for the Defendant.

i. Inquiry of former legal counsel for the Defendant, has not yet revealed an accurate current or forwarding address for the Defendant.

j. Inquiry of legal counsel who contacted the undersigned in December 2005 in reference to the instant matter and who stated that they had been contacted by the Defendant, did not reveal an accurate current or forwarding address for the Defendant.[²]

3. Affiant believes that there is no person in the State of Florida on whom service of process would bind the absent Defendant.

4. Affiant has not discovered any evidence showing that the corporation ever qualified to do business in the State of Florida.

5. All officers, directors, general managers, cashiers, resident agents, and business agents of the corporation are unknown to Affiant.

(emphasis added).

For the reasons that follow, we find the sworn statement legally insufficient and also conclude on the record presented that Pinecrest failed to conduct the diligent search required to meet statutory and constitutional notice and due process requirements.

DISCUSSION

Although personal service of process on a defendant is the usual and preferred method of serving a defendant with notice of an action, constructive service is permissible where allowed by statute. See §§ 49.011-.021, Fla. Stat. (2006). On the other hand, because the lack of personal service implicates due process concerns, a plaintiff must strictly comply with the statutory requirements. See Torres v. Arnco Constr., Inc., 867 So.2d 583, 586 (Fla. 5th DCA 2004); Carlini v. State, Dep't of Legal Affairs, 521 So.2d 254, 255 (Fla. 4th DCA 1988). Accordingly, where, as here, there is a challenge to constructive service, the trial court has the duty to determine not only whether the affidavit of search is legally sufficient, but also whether the plaintiff conducted an adequate search to locate the defendant. See Giron v. Ugly Mortgage, Inc., 935 So.2d 580, 582 (Fla. 3d DCA 2006); Se. & Assocs., Inc. v. Fox Run Homeowners Ass'n, 704 So.2d 694, 696 (Fla. 4th DCA 1997).

Although Pinecrest made some efforts to locate the defendant, Redfield, or an officer or agent, Redfield argues—persuasively in our view—that the sworn statement submitted by Pinecrest is deafeningly silent concerning the most likely source of potential information regarding the "status" of the corporate defendant or "persons upon whom the service of process would bind the said corporation," see § 49.051(1), the local Venezuelan consulate, with whom Pinecrest had been in regular contact since almost the day Pinecrest learned of the code violations and sought to levy a fine on the property owner. The record presented to us unequivocally reflects that Pinecrest knew the Venezuelan government might have acquired an ownership interest in the property from...