Opinion
No. 3D19-1852
04-08-2020
Carolina KATZ-LUONGO, Appellant, v. Yolanda AMORTEGUI, Appellee.
Luks, Santaniello, Petrillo & Cohen, and Daniel S. Weinger, and Stuart L. Cohen, Fort Lauderdale, and Christopher T. Beck, Miami, for appellant. Greenspoon Marder, LLP, and John H. Pelzer (Fort Lauderdale), for appellee.
Luks, Santaniello, Petrillo & Cohen, and Daniel S. Weinger, and Stuart L. Cohen, Fort Lauderdale, and Christopher T. Beck, Miami, for appellant.
Greenspoon Marder, LLP, and John H. Pelzer (Fort Lauderdale), for appellee.
Before LOGUE, LINDSEY, and GORDO, JJ.
PER CURIAM. Carolina Katz-Luongo, Defendant below, appeals the trial court's order vacating its prior order quashing service of process. Because Yolanda Amortegui, Plaintiff below, failed to strictly comply with the Florida Statutes governing service of process, we reverse and remand with instructions to the trial court to reinstate its prior order quashing service of process.
The trial court entered an ex parte amended order granting an additional one hundred twenty days in which to effect service of process and further ordering that Plaintiff
shall serve the Defendant pursuant to Florida Statutes Section 48.194 ... at the Defendant, CAROLINA KATZ-LUONGO'S, place of abode and/or residence pursuant to Florida Statutes Sections 48.031(1)(a) and 48.194.[ ]
Notably, the order only authorizes substitute service of process at Katz-Luongo's place of abode under section 48.031(1)(a), Florida Statutes, but does not permit, nor even reference, substitute service of process by one of the methods prescribed under the Hague Convention. We express no opinion on this issue or with respect to any of the other arguments Katz-Luongo raises herein.
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Notably, the order only authorizes substitute service of process at Katz-Luongo's place of abode under section 48.031(1)(a), Florida Statutes, but does not permit, nor even reference, substitute service of process by one of the methods prescribed under the Hague Convention. We express no opinion on this issue or with respect to any of the other arguments Katz-Luongo raises herein.
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Plaintiff then filed the Affidavit of Process Server Cesar Rodriguez Avila. According to his sworn affidavit, Avila is a resident of Venezuela who is authorized to serve process and legal documents in Venezuela. Avila's affidavit also provides that he served someone identifying themselves as Katz-Luongo's roommate, who informed him that although Katz-Luongo maintained an address at that location, she currently lives in Colombia. Specifically, Avila's affidavit provides, in pertinent part:
4. I received service of process from Process Service Network on May 3, 2019, at 10:00 A.M. I acted as their agent.
....
6. On May 6, 2019, at 8:25 p.m., I served the above-listed Documents on the Defendant, Carolina Katz-Luongo ("Katz-Luongo") by substituted service at 47 Cale Rio Caribe, El Cafetal, Baruta, Edo. Miranda, Caracas 1080, Venezuela. I personally handed a copy of the Documents to Lena Lanza who identified herself to me as the roommate of Katz-Luongo. She stated that Katz-Luongo maintains that address but that she lives in another apartment in southern Cali, Colombia. On May 7, 2019, I also mailed a copy of the same documents described in paragraph 5 above to Katz-Luongo addressed to her with postage fully pre-paid.
Assuming Plaintiff complied with all other applicable requirements for perfecting service of process under Florida law, service still should have been quashed because Plaintiff failed to comply with section 48.031(1)(a), Florida Statutes. That section requires service upon certain individuals at a defendant's "usual place of abode." It is well settled that for purposes of this statute, a person can only have one usual place of abode: the place they are living at the time service is made. According to Avila's affidavit, service was attempted by personally hand delivering a copy of the documents at an address in Venezuela where Katz-Luongo was known to not be currently living. Rather, the process server was informed that although Katz-Luongo maintains that address, she currently lives in an apartment in southern Cali, Colombia, which, by definition, is her usual place of abode for service.
Because Plaintiff failed to strictly comply with section 48.031(1)(a), Florida Statutes, we are compelled to reverse and remand for the trial court to reinstate its prior order quashing service of process. See Stettner v. Richardson, 143 So. 3d 987, 990 (Fla. 3d DCA 2014) ("The term ‘usual place of abode’ means ‘the place where the defendant is actually living at the time of service,’ and a person can only have one ‘usual place of abode’ " (citation omitted)); Cordova v. Jolcover, 942 So. 2d 1045, 1046 (Fla. 2d DCA 2006) (" ‘Usual place of abode’ means ‘the place where the defendant is actually living at the time of service.’ " (citation omitted)); Torres v. Arnco Const., Inc., 867 So. 2d 583, 586 (Fla. 5th DCA 2004) ("The word ‘abode’ means ‘one's fixed place of residence for the time being when service is made.’ ") (citation omitted)).
Reversed and remanded.