Leviten v. GauntLeviten v. Gaunt
By this interlocutory appeal, appellants Terry F. Leviten and Allstate Insurance Company, defendants in the trial court, urge reversal of that court‘s order denying their motion to quash service of process on Ms. Leviten. They contend that plaintiff-appellee has failed to adhere to the requirements of Sections
In an earlier appeal by the same parties, this court held that plaintiff‘s initial attempts to serve process upоn Ms. Leviten were defective. Leviten v. Gaunt, 347 So.2d 452 (Fla. 3d DCA 1977). Thereafter, Gaunt attempted to perfect service on her by serving a summons and an amended complaint оn the Secretary of State, pursuant to Chapter 48, Florida Statutes [1977], and by sending a notice of service and a copy of the process to Ms. Leviten by registered mail to two addresses in Miami. Both mailings were returned; one marked “unclaimed,” and the other “No such street number” and “Not in directory.”
Subsequent to this court‘s decision in the earlier appeal, Gaunt‘s counsel had deposed Ms. Leviten‘s parents, who stated that their daughter had movеd out of their home after a personal argument nearly a year before initiation of the suit, and the only communication they had had from her sinсe was a single postcard from Paris. However, they were able to supply names and addresses of twelve persons who knew her. Several оf these persons reside in Dade County.
Without making any attempt to follow uр these leads, Gaunt‘s counsel filed an affidavit, based on information gained at the deposition, alleging that Ms. Leviten had “concealed her whereabouts.” The record is devoid of proof that she was concеaling her whereabouts, and equally devoid of any evidence of due diligence on the part of plaintiff to search for her. In fact, apрellant Leviten has not had notice of the suit.
A statute providing for substituted service must be strictly construed, and the party seeking to effect service under it has the burden of presenting facts which clearly justify its applicability. Young Spring Wire Corporation v. Smith, 176 So.2d 903 (Fla. 1965) and cases cited therein. Where neither the affidavit nor the record revеal appropriate diligence in seeking to find the party sought to bе served, nor in establishing the fact that such party was indeed attempting to conceal himself, the mere filing of an affidavit alleging concealment is an insufficient basis upon which to predicate substituted service. Fleischman v. Morris, 260 So.2d 278 (Fla. 3d DCA 1072). In the present situation, appellee, at minimum, must follow up the leads received at deposition which deal with persons residing in Dade County, and file the results оf his investigation with the court by way of affidavit.
Although appellants assert that thе mere fact that defendant‘s return receipt was never filed with the cоurt, as required by Section
Therefоre, the order denying the motion to quash service of process on Ms. Leviten is reversed, and the cause is remanded to the trial court with instructions to enter an order granting the motion to quash.
Reversed and remanded with instructions.