Terry F. LEVITEN and Allstate Insurance Company, Appellants,
v.
Thomas R. GAUNT, Appellee.
District Court of Appeal of Florida, Third District.
Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellants.
Edward A. Sirkin and David S. Wieder, Miami, for appellee.
Before HAVERFIELD, C.J., BARKDULL, J., and PARKER, J. GWYNN, (Ret.), Associate Judge.
PER CURIAM.
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 48.161 and 48.171, Florida *113 Statutes [1977] in that he has not evinced due diligence in endeavoring to make substituted service. Wе agree.
In an earlier appeal by the same parties, this court held that plaintiff's initial attempts to serve process upon Ms. Leviten were defective. Leviten v. Gaunt,
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 moved out of their home after a personal argument nearly a year beforе initiation of the suit, and the only communication they had had from her since was a single postcard from Paris. However, they were able to supply nаmes and addresses of twelve persons who knew her. Several of these persons reside in Dade County.
Without making any attempt to follow up thesе leads, Gaunt's counsel filed an affidavit, based on information gained at thе deposition, alleging that Ms. Leviten had "concealed her whereabouts." The record is devoid of proof that she was concealing her whereabouts, and equally devoid of any evidence of due diligencе on the part of plaintiff to search for her. In fact, appellant Leviten has not had notice of the suit.
A statute providing for substituted service must bе 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,
Although appellants assert that thе mere fact that defendant's return receipt was never filed with the cоurt, as required by Section 48.161, is a sufficient basis upon which to reverse the ruling belоw, this is not necessarily so. If due diligence were shown in an effort to locаte Ms. Leviten, so that it could be satisfactorily established that her whereabouts is unknown or that she is concealing herself, the requirement of filing a return receipt with the court would be obviated. Robb v. Picarelli,
Therеfore, the order denying the motion to quash service of process оn 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.