Summary
holding that "[s]imply stating that the defendant's residence is unknown" after one attempt at service did not justify constructive service
Summary of this case from Shepheard v. Deutsche Bank Trust Co.Opinion
No. 89-0731.
September 27, 1989.
Appeal from the Circuit Court, Palm Beach County, Richard B. Burk, J.
Stephen L. Cook, West Palm Beach, for appellant.
John Fenn Foster of Foster Foster, P.A., West Palm Beach, for appellee Duval Federal Sav. and Loan Ass'n of Jacksonville.
We reverse the non-final order of the trial court denying appellant's motion to quash service of process by publication. The record reflects that appellant is a Florida resident who was absent from the state at the time of the single attempt at service of process. In the face of the explanation in the sheriff's return, as per information supplied by a neighbor, and considering the acknowledgment in the plaintiff's affidavit that the defendant's mailing address remained at her home residence, it was incumbent upon the plaintiff to show why compliance with section 49.041(3)(c), Florida Statutes, was not required. Simply stating that the defendant's residence is unknown and that one attempt was made at service is insufficient under these circumstances. Cf. Taylor v. Lopez, 358 So.2d 69 (Fla. 3d DCA 1978).
LETTS, STONE and POLEN, JJ., concur.