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Docket Number

No. 89-2474.

Attorney(S)

Geoffrey B. Marks and G. Bart Billbrough of Walton Lantaff Schroeder Carson, Miami, for appellant. Paul A. Gamba of Paul A. Gamba, P.A., Palm City, for appellees.

Judges

HERSEY, Chief Judge.

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Smart Summary

Summary of Opinion: Nicolette Wiggam v. Diane Bamford & Norman Bamford

Factual and Procedural Background

The appeal challenges an order denying a motion to dismiss a complaint for lack of personal jurisdiction. The underlying action arose from an automobile accident. Appellees attempted to effect personal service on the defendant (appellant, Wiggam) but, allegedly failing to do so, resorted to substituted service under sections 48.161 and 48.171, Florida Statutes (1987). The trial court concluded the appellees had complied with those statutory requirements and refused to dismiss the action. Appellant filed a request for an extension of time to answer the complaint and then appealed the denial of her motion to dismiss.

Legal Issues Presented

Whether the complaint alleged the jurisdictional requirements prescribed by statute (specifically nonresidence or concealment) to support substituted service under sections 48.161 and 48.171, Florida Statutes (1987).
Whether appellees exercised the requisite "due diligence" in attempting to effect personal service before resorting to substituted service.

Arguments of the Parties

Appellant's Arguments

The complaint failed to allege the necessary jurisdictional facts required to support substituted service — specifically, it did not allege that the defendant was a nonresident or was concealing her whereabouts.
The appellees did not satisfy the statute's "due diligence" requirement in their attempts to locate and effect personal service on the defendant.

Appellees' Arguments

They complied with the "due diligence" requirement by undertaking multiple efforts to locate the defendant prior to resorting to substituted service, including:
- An unsuccessful sheriff's attempt at the address listed in the accident report.
- A check of the local telephone book by plaintiffs'/appellees' attorney.
- A check at the local post office for forwarding or new addresses.
- Several telephone calls to local directory assistance.
- An unsuccessful attempt at service by an investigation agency, which stated the defendant had moved and left no forwarding address and could not be located.
They contended these efforts satisfied the statutory diligence requirement, supporting substituted service.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Drake v. Scharlau, 353 So.2d 961 (Fla. 2d DCA 1978)	To support substituted service the complaint must allege the jurisdictional requirements prescribed by statute.	Cited to establish that plaintiffs must plead ultimate facts bringing defendant within the statute's purview.
Ferguson v. McWilliams, 483 So.2d 509 (Fla. 4th DCA 1986)	Same principle: requirement to allege statutory jurisdictional facts for substituted service.	Reinforced the necessity of alleging statutory requisites in the complaint.
Journell v. Vitanzo, 472 So.2d 827 (Fla. 4th DCA 1985)	To constitute the Secretary of State as agent for a defendant motor vehicle owner/operator, plaintiff must allege nonresident status, or that a Florida resident became a nonresident, or that a resident is concealing his whereabouts.	Used to show the complaint here was fatally defective for failing to allege nonresidence or concealment.
Insolia v. Wagie, 505 So.2d 696 (Fla. 4th DCA 1987)	Support for the rule requiring specific jurisdictional allegations for substituted service.	Listed as supporting authority corroborating the requirement to plead statutory jurisdictional facts.
Grammer v. Grammer, 80 So.2d 457 (Fla. 1955)	Definition of the "due diligence" test for substitute service: whether plaintiff reasonably employed knowledge at hand, made diligent inquiry, and exerted honest and conscientious effort appropriate to circumstances.	Quoted to frame the standard the court applied in assessing appellees' investigative efforts.
McDaniel v. McElvey, 108 So. 820 (Fla. 1926)	Earlier authority cited within Grammer for the due diligence standard.	Cited as foundational authority supporting the due diligence test quoted from Grammer.
Knabb v. Morris, 492 So.2d 839 (Fla. 5th DCA 1986)	Efforts insufficient where plaintiff ignored obvious leads to defendant's whereabouts, such as addresses contained in the accident report.	Analogized to the present case to show failure to follow obvious leads can defeat a claim of due diligence.
Torelli v. Travelers Indem. Co., 495 So.2d 837 (Fla. 3d DCA 1986)	Failure to inquire of a defendant's known attorney is indicative of lack of due diligence.	Used directly to support the court's conclusion that appellees' failure to contact appellant's attorney demonstrated insufficient diligence.
Mercado v. Parent, 421 So.2d 740 (Fla. 4th DCA 1982)	An attorney cannot be required to divulge a client's whereabouts after entry of judgment absent appeal; however, that rule does not apply during the pendency of litigation.	Cited to justify that contacting a defendant's attorney during litigation is an available and proper inquiry, supporting the court's expectation that appellees should have made such an inquiry.

Court's Reasoning and Analysis

The court's analysis proceeded in two principal phases.

First, the court examined whether the complaint satisfied the statutory pleading requirements for substituted service under sections 48.161 and 48.171, Florida Statutes (1987). Relying on authorities requiring that the complaint allege the ultimate facts bringing the defendant within the statute's purview, the court explained that two requisites must be alleged: (1) the defendant's nonresidence or concealment (using the statute's language), and (2) that the cause of action arose from a Florida activity. The court found the complaint alleged only subject matter jurisdiction and that the cause of action arose from a Florida activity, but it failed to allege that the appellant was a nonresident or concealing herself. The court treated that omission as fatal to the complaint's sufficiency to support substituted service.

Second, the court addressed whether appellees exercised the "due diligence" required before resorting to substituted service. It adopted the due diligence standard articulated in Grammer v. Grammer: inquiry and conscientious efforts appropriate to the circumstances. The court reviewed the appellees' investigative steps (the sheriff's unsuccessful attempt at the address in the accident report; checks of the local telephone book and post office; calls to directory assistance; and an investigator's affidavit stating the defendant had moved and left no forwarding address).

The court concluded those efforts were insufficient because appellees failed to pursue an obvious investigative lead — making inquiry of the appellant's attorney. The court relied on Torelli and Knabb, which held that omission to pursue an obvious lead (including failing to contact a known attorney) defeats a claim of due diligence. The court also invoked Mercado to note that the rule limiting attorney inquiry after judgment does not apply during the pendency of litigation, so contacting counsel in this case was a proper and expected step. Based on these considerations, the court determined substituted service was not appropriate.

Holding and Implications

REVERSED AND REMANDED — the trial court's order is reversed and the case is remanded with instructions to grant the motion for dismissal for lack of personal jurisdiction.

Consequences: The direct effect is that the complaint must be dismissed for lack of personal jurisdiction because (1) the complaint failed to allege the statutory jurisdictional facts (nonresidence or concealment) needed to support substituted service, and (2) the plaintiffs did not demonstrate the requisite due diligence in attempting personal service (notably, they did not inquire of defendant's attorney). The opinion does not announce a new legal rule; it applies existing precedent to the facts of this case.

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NICOLETTE WIGGAM, APPELLANT, v. DIANE BAMFORD AND NORMAN BAMFORD, APPELLEES.

HERSEY, Chief Judge.

The issue in this appeal from an order denying a motion for dismissal of a complaint, is whether the court acquired personal jurisdiction over the defendant (appellant, Wiggam). Failing in their efforts to effect personal service of process on appellant, in an action arising out of an automobile accident, appellees resorted to substituted service of process. The trial court determined that appellees had complied with the requirements of sections 48.161 and 48.171, Florida Statutes (1987), and refused to dismiss the action. Appellant filed a request for an extension of time to answer the complaint and then took this appeal.

As the appellant correctly points out, it is well settled in Florida that "[t]o support substituted service of process on a defendant the complaint must allege the jurisdictional requirements prescribed by statute." Drake v. Scharlau, 353 So.2d 961, 964 (Fla. 2d DCA 1978); Ferguson v. McWilliams, 483 So.2d 509 (Fla. 4th DCA 1986). This means that the plaintiff must allege in his complaint the ultimate facts bringing the defendant within the purview of the statute. Fla.R.Civ.P. 1.070(i). Pleading the ultimate facts requires that two requisites be alleged. "The first is the nonresidence or concealment of the defendant. The language of the statute should be used. The second requisite is an allegation that the cause of action arose from a Florida activity within the purview of the statute." Trawick, Florida Practice and Procedure, § 8-16 (1987).

An examination of the complaint here discloses a failure to allege the necessary jurisdictional requirements. The complaint in this case alleges subject matter jurisdiction only ("this is an action for damages in excess of five thousand dollars,"). While it does allege that the cause of action arose from a Florida activity, the complaint fails to allege that appellant is a nonresident or concealing herself. On that basis alone it is fatally defective. In Journell v. Vitanzo, 472 So.2d 827 (Fla. 4th DCA 1985), this court stated, "[i]n order to constitute the secretary of state as agent for a defendant motor vehicle owner or operator the plaintiff must allege in his complaint that the defendant was a nonresident, or a resident of Florida who subsequently became a nonresident, or a resident of Florida concealing his whereabouts." (citations omitted). See also Insolia v. Wagie, 505 So.2d 696 (Fla. 4th DCA 1987); Ferguson v. McWilliams, 483 So.2d 509 (Fla. 4th DCA 1986).

The appellant's second contention is that the appellees failed to comply with the "due diligence" requirement of the statute. As the appellant correctly notes, to overcome the primary requirement of personal service, the plaintiff must demonstrate the exercise of due diligence in attempting to locate the defendant.

The test [for determining the sufficiency of constructive or substitute service] is not whether it was in fact possible to effect personal service in a given case, but whether the complainant reasonably employed knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstances, to acquire the information necessary to enable him to effect personal service on the defendant.

Grammer v. Grammer, 80 So.2d 457, 460 (Fla. 1955), (citing McDaniel v. McElvey, 91 Fla. 770, 108 So. 820 (1926)).

The appellees contend that they have complied with the "due diligence" requirement in attempting to ascertain the whereabouts of the defendant. In support, they point to the following:

(1) an unsuccessful attempt at service by the sheriff's department at the defendant's address listed in the accident report (the sheriff's report states that defendant was not at the address),

(2) a check of the local telephone book by plaintiffs'/appellees' attorney,

(3) a check at the United States postal office for forwarding or new addresses,

(4) several telephone calls to local directory assistance,

(5) an unsuccessful attempt at service of process by an investigation agency, whose affidavit states that the defendant moved from her current address and left no forwarding address, and that it was unable to locate her.

These efforts, according to the appellees, represent "due diligence." However, we agree with appellant that appellees' efforts do not reach the level of "due diligence" required and therefore substituted service is not appropriate.

In Knabb v. Morris, 492 So.2d 839 (Fla. 5th DCA 1986), the plaintiff's efforts to locate the defendant included hiring an investigator who attempted service at three different addresses, checked the telephone directory, the postal service, and several utility companies before proceeding under the substituted service statute. The fifth district held that those efforts did not constitute due diligence because the plaintiff ignored certain obvious leads to the defendant's whereabouts: notably, the vehicle accident report contained addresses of the occupants of the car driven by the defendant during the accident at issue. The fifth district noted that although both addresses were located in the county where both the accident and the litigation had occurred, the plaintiff had failed to attempt to contact these people to inquire about the defendant's whereabouts. For this reason, the fifth district held there was a lack of "due diligence."

Similarly, in Torelli v. Travelers Indem. Co., 495 So.2d 837 (Fla. 3d DCA 1986), the third district held that the plaintiff did not exercise due diligence in attempting to locate the defendant where he failed to make inquiry of the defendant's known attorney as to his client's whereabouts. The failure to follow such an obvious lead compelled the conclusion that the plaintiff had not exercised due diligence.

In this case the appellees also failed to follow an obvious lead to the appellant's whereabouts. They failed to make inquiry of her attorney. As in Torelli, the conclusion that they failed to exercise due diligence is therefore compelled. We note that our holding is consistent with Mercado v. Parent, 421 So.2d 740 (Fla. 4th DCA 1982). In Mercado, this court held that an attorney could not be required to divulge his clients' whereabouts after entry of judgment absent appeal. However, this court also noted that the rule did not apply during the pendency of litigation. The present case falls within that exception as it involves representation during, not after, the action. We adhere to the views expressed in Mercado.

Although the plaintiffs/appellees did make some effort to locate the defendant, their attempts do not rise to the level of due diligence required by section 48.161, Florida Statutes (1987).

We find no merit in appellees' additional arguments which we have carefully considered but do not address.

We reverse and remand with instructions to grant the motion for dismissal for lack of personal jurisdiction.

REVERSED AND REMANDED.

GLICKSTEIN and GUNTHER, JJ., concur.

WIGGAM v. BAMFORD