Murphy v. Cach, LLC
230 So. 3d 599
| Fla. Dist. Ct. App. | 2017Background
- Laura Murphy was sued by Cach, LLC on a personal guaranty and served via substitute service at her residence in Apopka, Florida.
- The amended affidavit of substitute service stated process was left with a "John Doe," described physically as a "black-haired white male" and a co-resident, but did not give a name.
- Murphy filed a timely motion to quash service of process; the trial court denied the motion without receiving evidence and ordered her to answer the complaint.
- On appeal, Murphy argued the affidavit failed to strictly comply with section 48.21, Florida Statutes, because it omitted the name of the person served.
- The Fifth District reviewed the denial de novo and considered whether the return was facially valid under section 48.21.
Issues
| Issue | Plaintiff's Argument (Cach) | Defendant's Argument (Murphy) | Held |
|---|---|---|---|
| Whether the amended affidavit of substitute service complied with §48.21 | The substitute-service affidavit was sufficient to effect service and confer jurisdiction | The affidavit was facially defective because it failed to name the person served (used a physical description instead) | The affidavit was deficient; service was invalid and jurisdiction was not established |
| Whether a physical description can substitute for the name required by §48.21 | Description suffices when it identifies the served person | Section 48.21 requires the name; description is insufficient | Description is insufficient; statute requires the name |
| Whether Murphy waived jurisdictional objection by later filing motions | Murphy’s post-denial motions amounted to waiver | Murphy timely challenged jurisdiction and did not seek affirmative relief, so no waiver | No waiver; timely objection preserved jurisdictional challenge |
Key Cases Cited
- Davidian v. JP Morgan Chase Bank, 178 So. 3d 45 (Fla. 4th DCA 2015) (de novo review of legal issues on motion to quash)
- Koster v. Sullivan, 160 So. 3d 385 (Fla. 2015) (service statutes must be strictly construed; return controls jurisdictional inquiry)
- Klosenski v. Flaherty, 116 So. 2d 767 (Fla. 1959) (officer’s return is evidence for determining personal jurisdiction)
- Vives v. Wells Fargo Bank, N.A., 128 So. 3d 9 (Fla. 3d DCA 2012) (physical description cannot replace the named person on a return)
- Gonzalez v. Totalbank, 472 So. 2d 861 (Fla. 3d DCA 1985) (returns listing "Jane Doe" are defective under §48.21)
- Re-Emp’t Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So. 2d 467 (Fla. 5th DCA 2007) (elements required for a facially valid return)
- Berne v. Beznos, 819 So. 2d 235 (Fla. 3d DCA 2002) (timely jurisdictional challenge does not waive defense if no affirmative relief is sought)