Failure to Check DMV Records Rendered Search for Defendant Inadequate

In this Home Owners Association (HOA) lien foreclosure case, the Plaintiff was unable to locate the Defendant for service. HOA’s attorney filed an affidavit for service by publication, alleging:

a) I sent a Demand letter to the last known address of 2119 The Oaks Boulevard, Kissimmee, FL 34746. No response was received from the defendant.

b) I hired a process server at Magic Process to serve summons on Defendants, Sergio Martins and Unknown Spouse of Sergio Martins. Process Server stated that the property was unoccupied at the time of service.

c) I have searched for the Defendant with the Osceola County Property Appraisers office to determine if there are other properties the Defendant may own and/or reside in. I have found no other property owned by Sergio Martins and Unknown Spouse of Sergio Martins

d) I have searched for the Defendant by name and by address in a popular background database search service known as We have not found another address aside from the aforementioned addresses at which the Process Server attempted service on the Defendants.

e) I have searched for the Defendants by name using World Wide Web based telephone listings. I have found no listing.

f) I have sent the U.S. Post Office a change of address/physical address request and they reported that they had no forwarding information for Defendant.

g) I have searched the Florida Department of Corrections on them to see if they had been incarcerated.

h) I have searched the Osceola County Inmate Records on them to see if they have been incarcerated.

i) I have searched Clerks website of Osceola County, Florida. I found the Deed that was recorded for subject property when they purchased the property. The address on the Deed is 2119 The Oaks Blvd., Kissimmee, FL 34746. There is no recorded mortgage on this property.

2. The age of the Defendant is unknown to Affiant.

3. The residence of the Defendant is unknown to Affiant.

4. The Defendant, having residence in Florida, has been absent from there for more than 60 days prior to the making of this affidavit, or conceals him/herself so that process cannot be served personally upon him/her, and that Affiant believes that there is no person in the state upon whom service of process would bind this absent or concealed Defendant.

Service was accomplished by publication, Judgment was entered, the property sold at a foreclosure auction, and the locks changed.  At which point Defendant was notified by neighbors that his furniture was on his front yard.  Defendant filed a Motion to Vacate the Judgment alleging that he resided at a different address in Florida, that his address was available in the public records including the Florida DMV, and that the HOA had sent him a letter at his current address several years prior.

The Court granted the Motion to Vacate finding that the HOA should have requested the Defendant’s records from the Florida DMV and should have attempted service at all addresses in their records.

Martins v. The Oaks Master Property Owners Assoc., 39 Fla. L. Weekly D2385a, Case No. 5D13-3852 (5th DCA Nov. 14, 2014)

Dismissal with Prejudice Not an Option for Failure to Serve Process Within 120 Days

In this breach of contract case, the trial court sua sponte dismissed a complaint “with prejudice” for failure to serve it within 120 days, after the court entered an order requiring service within 120 days.  The appellate court reversed for two reasons: the trial court should have provided notice and an opportunity to be heard before dismissal, and should not have dismissed the complaint with prejudice, reasoning that “Rule 1.070(j) states that a trial court may act on its own initiative; however, the court may only act “on its own initiative after notice.”   Further, “the trial court also erred in dismissing Carter’s complaint with prejudice. That action was not one of the options available to it under rule 1.070(j). See Fla. R. Civ. P. 1.070(j) (emphasis added) (“[T]he court . . . shall dismiss the action without prejudice or drop that defendant.”).”

Carter v. Mendez, 39 Fla. L. Weekly D1229a (Fla. 4th DCA June 11, 2014)



Counsel Not Required to Check Online Docket as Alternative to Service

The trial court dismissed Plaintiff’s claims after the Plaintiff (1) failed to serve one of the parties and (2) failed to submit a joint status report. The trial court claimed the authority to dismiss the case based on Florida Rule of Civil Procedure 1.070, stating:

THIS CAUSE came before the court pursuant to Rule 1.070(j), Florida Rules of Civil Procedure. The record of this action does not show service of initial process and initial pleading upon defendant(s) Sunday A. Stefaniw within 120 days after filing of the initial pleading, and the record does not reflect any order extending the time for service. Notice of the absence of timely service was previously given in the action February 12, 2013, and no good cause has been shown why service was not made within the required 120 days. The court also notes the failure to respond to the court’s order requiring submission of status report dated February 12, 2013. The Court must assume Plaintiff has no interest in pursuing this action. Whereupon, IT IS ADJUDGED that this action is dismissed.

Plaintiff argued that it had been actively attempting to serve the Defendant and that it had never received the order requiring submission of a joint status report. On the issue of whether the parties had been served with the order requiring submission of a joint status report, the trial court found that its assistant always efficiently handled the mail and that the attorneys could have monitored the case online.

In overturning the trail court’s order, the Fifth DCA ruled that the action could not be dismissed simply because the Defendant had not been served. The Court further ruled that there was not sufficient evidence to establish that order requiring submission of a joint status report had ever been served and that counsel did not have a duty to monitor the online docket as an alternative effective to service.

Taylor v. Bavaro, Case No. 5D13-1818 (5th DCA April 17, 2014).