114 So. 3d 1055
Fla. Dist. Ct. App.2013Background
- Castros own a condominium unit; Association records show their daughter’s address as alternate/billing address.
- NOL for delinquent fees served at daughter’s address via certified mail; lien recorded April 2, 2009.
- Foreclosure action filed August 4, 2009; first service attempt December 7, 2009 discontinued without details; no service at daughter’s address.
- Second service attempt May 2010 indicates process server spoke to daughter who claimed Castros resided at 6701 Collins Ave, but no unit found; daughter’s sworn affidavit says different address, and server failed to record it; no further attempts made.
- Constructive service by publication sought June 29, 2010 with affidavit claiming unknown residence; counsel knew Castros alive and in contact with daughter for payment agreement.
- Association later allowed tenant to occupy unit and pay rent to counsel; tenant’s affidavit confirms rent paid to counsel; tenant never advised of foreclosure suit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service by publication valid? | Castros subjected to constructive service via publication. | Constructive service defective; void judgment. | Constructive service defective; judgment void; abuse of discretion not to vacate. |
| Did the affidavit of diligent search satisfy § 49.041(1) to support publication? | Affidavit sufficiently showed diligent search. | Affidavit was conclusory and insufficiently particular. | Affidavit insufficient; not particularized; publication improper. |
| Was the actual diligent search conducted in compliance with Chapter 49? | Search used available databases and records. | Search was not diligent; failed to use readily available information (daughter’s address, tenant, etc.). | Search not diligent; failed to locate Castros; insufficient under Redfield standards. |
| Did waiver by attendance at the MSJ hearing prevent challenge to service? | Castros were represented at hearing. | No proof of representation; no waiver. | No waiver; no transcript; record does not show counsel represented Castros at MSJ. |
Key Cases Cited
- N.L. v. Dep’t of Children & Family Servs., 960 So.2d 810 (Fla. 3d DCA 2007) (judgment void for lack of due process when service is defective)
- Dor Cha, Inc. v. Hollingsworth, 876 So.2d 678 (Fla. 4th DCA 2004) (defective service renders judgment void)
- Falkner v. Amerifirst Fed. Sav. & Loan Ass’n, 489 So.2d 758 (Fla. 3d DCA 1986) (strict construction of Chapter 49 for constructive service)
- Redfield Invs., A.V.V. v. Vill. of Pinecrest, 990 So.2d 1135 (Fla. 3d DCA 2008) (strictly construed affidavit of diligent search; need particularity)
- Gans v. Heathgate-Sunflower Homeowners Ass’n, 593 So.2d 549 (Fla. 4th DCA 1992) (address not listed; ascertainable whereabouts affect validity)
- Levenson v. McCarty, 877 So.2d 818 (Fla. 4th DCA 2004) (diligent inquiry extends to likely sources of facts)