Gaynor Hill Enterprises, Inc. v. Allan Enterprises, LLC
113 So. 3d 933
| Fla. Dist. Ct. App. | 2013Background
- Gaynor Hill purchased Holmar Villas from Allan Enterprises and sued Allan Enterprises and the Allans for rescission and damages over representations about Holmar’s properties and profitability.
- Allans relocated to the United Kingdom; Gaynor Hill served process by substitute service on the Florida Secretary of State and obtained a default final judgment.
- Allans filed a motion for relief from judgment asserting lack of personal jurisdiction and defective service affidavit; trial court granted relief and vacated the judgment.
- Trial court held substitute service did not apply because claims arose from contract/tort rather than business activity, and that personal service was required; also questioned the affidavit/acknowledgment distinction.
- Court reverses trial court, holds substitute service on the Secretary of State valid, that concealment is irrelevant, and that the affidavit was valid, remanding to reinstate the default judgment.
- Court reinstates the default judgment on remand (REVERSED and REMANDED).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substitute service under 48.181(1) applies | Gaynor Hill argues the sale of Holmar was a business transaction | Allans argue substitute service doesn’t apply since claims were contract/tort | Yes, substitute service applicable |
| Whether substitute service on the Secretary of State was valid when the nonresident did not conceal whereabouts | Service on Secretary of State was proper regardless of concealment | Personal service required if no concealment or evasion | Yes, substitute service valid regardless of concealment |
| Whether the affidavit of substitute service was valid or an acknowledgment | Affidavit titled as such and sworn; not merely an acknowledgment | Document improperly labeled as affidavit | Affidavit valid; not a nullity due to minor defects |
Key Cases Cited
- Weber v. Register, 67 So.2d 619 (Fla.1953) (business venture concept for substitute service)
- Dans v. Gran Habana Rest. & Lounge, Inc., 244 So.2d 157 (Fla.3d DCA 1971) (contract to purchase business as venture activity)
- Pina v. Simon-Pina, 544 So.2d 1161 (Fla.5th DCA 1989) (distinction between affidavit and acknowledgment; sworn affidavit required)
- Gupton v. Dep't of Highway Safety, 987 So.2d 787 (Fla.5th DCA 2008) (minor defects in affidavit do not render it a nullity)
- Bell v. Renar Dev. Co., 811 So.2d 780 (Fla.4th DCA 2002) (affidavit sufficiency despite terminology such as 'acknowledged')