Wednesday, September 2, 2009

Third District Reverses Order Finding Improper Service of Process

In Clauro Enterprises, Inc. v. Aragon Galiano Holdings, LLC (3D09-711), the Third District reviewed a decision from the trial court relating to a motion to quash service of process.

The court affirmed as to one defendant but reversed as to the other holding "that Aragon failed to comply with section 48.031(6), Florida’s substitute service statute, when it attempted to serve Rupcich, individually."
First, the court stated: "The statute only permits substitute service at a private mailbox if (1) it is the only address discoverable through the public records, and (2) the process server determines that the person to be served maintains a mailbox at that location...With regard to the first requirement, Aragon did not and could not meet its burden of establishing that the only address for Rupcich discoverable through the public records was a private mailbox. Rupcich’s affidavit clearly demonstrated that a review of the public records showed that since the year 2000 he has owned property in Weston, Florida for which he claims a homestead exemption...Nonetheless, we also conclude that Aragon failed to meet the second statutory requirement because it failed to show that the process server determined that Rupcich maintained a mailbox at the Weston UPS store. In support of its position that service was proper, Aragon points to the return of service. That return of service, however, merely recites that service was in accordance with section 48.031(6), but it does not demonstrate that Aragon met either statutory requirement. “An affidavit [of service] which merely alleges that the service of process statute has been complied with is insufficient to meet the proponent's initial burden of establishing proper service.”


Post a Comment