Moss v. The Estate of Curt Hudson , 252 So. 3d 785 ( 2018 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
NACHELLE MOSS,
Appellant,
v. Case No. 5D17-3356
THE ESTATE OF CURT HUDSON, BY AND
THROUGH JENNIFER HUDSON, AS
PERSONAL REPRESENTATIVE AND
NATHANIEL MOSS,
Appellees.
________________________________/
Opinion filed July 27, 2018
Non-Final Appeal from the Circuit Court
for Hernando County,
Donald E. Scaglione, Judge.
Gregory D. Jones and Carla M. Sabbagh, of
Rywant, Alvarez, Jones, Russo & Guyton,
P.A., Tampa, for Appellant.
Jason M. Melton, Christopher M.
Klemawesch, and Gina M. Girardot, Whittel
& Melton, LLC, St. Petersburg, for Appellee,
Estate of Curt Hudson, by and through
Jennifer Hudson, as Personal
Representative.
No Appearance for Other Appellee.
LAMBERT, J.
Nachelle Moss appeals the trial court’s order denying her motion to quash service
of process. Concluding that substituted service of process under section 48.171, Florida
Statutes (2015), was not properly obtained, we reverse.
Appellee, Jennifer Hudson, as personal representative of the Estate of Curt
Hudson, deceased, filed a wrongful death complaint against Moss for damages arising
out of an automobile accident in which the vehicle Moss was driving struck the decedent,
who was riding a bicycle. The complaint alleged, among other things, that Moss was a
resident of Hernando County. After several unsuccessful attempts to personally serve
Moss with the initial complaint, Hudson attempted to obtain substituted service of process
pursuant to section 48.171 by serving Moss through the Secretary of State. This statute
provides, in pertinent part:
Any nonresident of this state . . . or any resident of this state,
being the licensed operator or owner of . . . any motor vehicle
under the laws of this state, who becomes a nonresident or
conceals his or her whereabouts, by the acceptance or
licensure and by the operation of the motor vehicle, either in
person, or by or through his or her servants, agents, or
employees . . . within the state constitutes the Secretary of
State his or her agent for the service of process in any civil
action begun in the courts of the state against such operator
or owner . . . of the motor vehicle, arising out of or by reason
of any accident or collision occurring within the state in which
the motor vehicle is involved.
§ 48.171, Fla. Stat. (2015).
Moss, by counsel, moved to quash service of process, asserting that Hudson had
not strictly complied with the requirements of section 48.171 and had also failed to comply
with the separate procedural requirements of section 48.161, Florida Statutes (2015), for
effectuating substituted service upon the Secretary of State. Following a hearing, the trial
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court denied the motion, finding that Moss was “represented,” “aware of the case,” and
“accountable herself of any due process.” The court further found that Hudson had clearly
demonstrated sufficient attempts to personally serve Moss with process.
A trial court’s ruling on a motion to quash service of process is subject to a de novo
standard of review. Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So. 3d 695, 698
(Fla. 4th DCA 2010) (citing Mecca Multimedia, Inc. v. Kurzbard, 954 So. 2d 1179, 1181
(Fla. 3d DCA 2007)). Further, “[b]ecause substituted service of process statutes provide
an exception to the general rule that a defendant must be personally served, they must
be strictly construed to protect due process guarantees.” Alvarado v. Cisneros, 919 So.
2d 585, 588-89 (Fla. 3d DCA 2006) (citing Monaco v. Nealon, 810 So. 2d 1084, 1085
(Fla. 4th DCA 2002); McAlice v. Kirsch, 368 So. 2d 401, 402 (Fla. 3d DCA 1979)).
The trial court first erred in denying Moss’s motion to quash because she was
“aware” of the case. Actual knowledge of a suit does not cure insufficient service of
process. McDaniel v. FirstBank P.R., 96 So. 3d 926, 929 (Fla. 2d DCA 2012) (citing
Napoleon B. Broward Drainage Dist. v. Certain Lands Upon Which Taxes Due, 33 So. 2d
716, 718 (Fla. 1948)). Moreover, counsel’s appearance and the filing of a motion to quash
insufficient service of process, without more, are not a waiver of the defense of lack of
personal jurisdiction. Id. at 928 (citing Oy v. Carnival Cruise Lines, Inc., 632 So. 2d 724,
725-26 (Fla. 3d DCA 1994)).
In Hernandez, the Fourth District Court succinctly explained the two requirements
that a plaintiff must meet when using substituted service under section 48.171:
First, the complaint must allege the ultimate facts bringing the
defendant within the purview of the statute. This requires the
plaintiff to allege in his complaint that the defendant was a
non-resident, or a resident of Florida who subsequently
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became a non-resident, or a resident of Florida concealing his
whereabouts. Second, the service must strictly comply with
section 48.161, which sets forth the method of substituted
service of process.
32 So. 3d at 698 (internal citations and quotations omitted).
Here, Hudson’s initial complaint was defective as it lacked any allegations that
Moss was either a nonresident, a resident of Florida who subsequently became a
nonresident, or a resident of Florida concealing her whereabouts. Under these
circumstances, “[w]hen the complaint is devoid of the jurisdictional allegations required
for substituted service, the defendant cannot be properly served under the substituted
service statute.” Alvarado, 919 So. 2d at 589 (citing Great Am. Ins. Co. v. Bevis, 652 So.
2d 382, 383 (Fla. 2d DCA 1995)). Because the jurisdictional allegations contained in
Hudson’s initial complaint were insufficient to invoke substituted service of process upon
the Secretary of State, it is unnecessary for us to address whether the procedural
requirements for service under section 48.161 were also met. As Moss was not
personally served with process and for the reasons explained, substituted service of
process upon her through the Secretary of State was defective. Thus, the trial court
should have granted Moss’s motion. We therefore reverse the order on appeal and
remand for the entry of an order quashing service of process on Moss of the initial
complaint, without prejudice to Hudson’s further efforts to serve Moss with process. 1
REVERSED and REMANDED.
1 Our record indicates that the trial court has now granted Hudson leave to file an
amended complaint, which she did. We take no position regarding the sufficiency of the
allegations contained in the amended complaint under section 48.171 or whether
substituted service of the amended complaint can be properly obtained. Those issues
are not before us, nor have they been presented to the trial court for a ruling because the
lower court stayed its proceedings pending resolution of this appeal.
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SAWAYA and EISNAUGLE, JJ., concur.
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