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JOURNELL v. VITANZO
Case Summary: Dalton Journell v. Alfred Vitanzo, No. 84-2062 (Fla. 4th DCA July 10, 1985)
Factual and Procedural Background
Appellee Alfred Vitanzo, Jr. sued appellants Dalton D. Journell and Industrial Fire and Casualty Insurance Company to recover damages arising from an automobile accident. Appellee filed an amended complaint alleging that appellant Journell was a resident of Broward County, Florida. Personal service on Journell was not successfully accomplished. Appellee then filed an affidavit stating that Journell was a non-resident and an affidavit by counsel stating that a diligent search had been made and that Journell's last known address was 3650 S.W. 13th Court, Fort Lauderdale, but that he had moved and left no forwarding address. Appellee subsequently filed an affidavit of compliance showing service on the Florida Secretary of State and notice of return of service on Journell through the Secretary of State. Appellants moved to quash and dismiss service of process; the trial court denied that motion. Appellants perfected a nonfinal appeal from the order denying their motion to quash and dismiss service of process. The district court reversed and remanded the order denying the motion to quash and dismiss service.
Legal Issues Presented
- Whether substituted service by serving the Florida Secretary of State was proper where the complaint alleged that the defendant was a resident of Florida (thus ordinarily requiring personal service).
Arguments of the Parties
Appellee's Arguments
- Appellee contended that service on the Secretary of State should be approved because he filed an affidavit in the record stating that Journell was a non-resident.
- Appellee relied on Robb v. Picarelli, asserting that Robb authorizes the court to consider the entire record in determining the propriety of substituted service.
Appellants' Arguments
- The opinion does not contain a detailed account of the appellants' legal arguments beyond the fact that they moved to quash and dismiss service of process.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Turcotte v. Graves, 374 So.2d 641 (Fla. 4th DCA 1979) | Supports the proposition that to constitute the Secretary of State as agent for service under § 48.171, the plaintiff must allege the defendant is a non-resident, became a non-resident after suit was filed, or is a resident concealing his whereabouts. | The court cited Turcotte as authority for the statutory rule requiring appropriate jurisdictional allegations in the complaint before substituted service on the Secretary of State is permissible. |
| Drake v. Scharlau, 353 So.2d 961 (Fla. 2d DCA 1978) | Same statutory principle as Turcotte regarding the prerequisites for using the Secretary of State for substituted service under § 48.171. | The court relied on Drake, along with Turcotte, to establish that the complaint must contain jurisdictional allegations qualifying the defendant for substituted service; absence of such allegations requires personal service. |
| Robb v. Picarelli, 319 So.2d 645 (Fla. 3d DCA 1975) | Discussed by appellee as authorizing the court to consider the entire record (including affidavits) in determining propriety of substituted service. | The court distinguished Robb, noting that in Robb the plaintiff had filed an amended complaint alleging concealment of whereabouts and had served both the amended complaint and summons on the Secretary of State. Because the present amended complaint expressly alleged residency, Robb did not support appellee's position. |
Court's Reasoning and Analysis
The court began by stating the statutory and case-law rule that to treat the Secretary of State as the agent for service under section 48.171, the complaint must allege that the defendant is a non-resident, a resident who subsequently became a non-resident, or a resident concealing his whereabouts. The court applied that rule to the facts: appellee's amended complaint expressly alleged that Journell was a resident of Broward County. Under those allegations, personal service was required to obtain jurisdiction.
The court addressed appellee's reliance on Robb v. Picarelli. Although Robb contains language about considering the entire record, the court examined the Robb record and found a key factual distinction: in Robb the plaintiff had amended the complaint to allege concealment of whereabouts and the amended complaint and summons were served on the Secretary of State. Because here the amended complaint pleaded residency (triggering the requirement of personal service), the court concluded that Robb was not controlling.
The court stated the controlling principle succinctly: jurisdictional allegations must appear in the complaint. Because appellee's amended complaint contained allegations requiring personal service, appellee was not entitled to substituted service on the Secretary of State, and the trial court's denial of appellants' motion to quash and dismiss service was erroneous.
Holding and Implications
REVERSED AND REMANDED, with directions.
Holding: The district court reversed the trial court's order denying appellants' motion to quash and dismiss service of process because the amended complaint alleged that the defendant was a resident of Broward County, which required personal service rather than substituted service on the Secretary of State.
Implications: The direct effect is that the order denying the motion to quash and dismiss service of process was reversed and the cause was remanded for further proceedings. The opinion did not purport to establish a new broader precedent beyond applying existing statute and case law to the facts of this case.
DOWNEY, Judge.
Appellee, Alfred Vitanzo, Jr., sued appellants, Dalton D. Journell and Industrial Fire and Casualty Insurance Company, to recover damages sustained in an automobile accident. From an order denying their motion to quash and dismiss service of process appellants have perfected this nonfinal appeal.
Three points have been presented for our consideration; however, the first point requires reversal so we decline to reach the others.
Appellee filed an amended complaint in which he alleged that appellant, Journell, was a resident of Broward County. When personal service of process was not successfully accomplished, appellee filed an affidavit in which he stated that Journell was a non-resident of the State of Florida. Another affidavit of counsel for appellee states that he had made diligent search to locate Journell and his last known address was 3650 S.W. 13th Court, Fort Lauderdale, but Journell had moved and left no forwarding address. Later, appellee filed an affidavit of compliance by serving the secretary of state and notice of return of service on Journell through the secretary of state. Appellant moved to quash and dismiss service of process, which was denied.
In 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 non-resident, or a resident of Florida who subsequently became a non-resident, or a resident of Florida concealing his whereabouts. § 48.171, Fla. Stat. (1982); Turcotte v. Graves, 374 So.2d 641 (Fla. 4th DCA 1979); Drake v. Scharlau, 353 So.2d 961 (Fla. 2d DCA 1978). In the case at bar appellee's complaint alleged Journell was a resident of Broward County, Florida. Such an allegation required personal service of process in order to obtain jurisdiction over the defendant.
Appellee contends that Robb v. Picarelli, 319 So.2d 645 (Fla. 3d DCA 1975) requires that service in this case be approved because appellee filed an affidavit in the record stating Journell was a non-resident and Robb authorizes the court to consider the entire record. While that statement is made in Robb, the record in Robb shows that the plaintiff filed an amended complaint alleging the defendant was concealing his whereabouts. Both the amended complaint and summons were then served on the secretary of state.
The jurisdictional allegations must appear in the complaint. Appellee's amended complaint contained allegations requiring personal service of process and that is fatal to his entitlement to substituted service of process here.
Accordingly, the order appealed from is reversed and the cause is remanded for further proceedings.
REVERSED AND REMANDED, with directions.
ANSTEAD and DELL, JJ., concur.
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