Florida/Georgia Personal Injury & Workers Compensation

...1955), involving a sworn statement that the affiant had made diligent search and inquiry as to the address of the defendant, the supreme court stated categorically, "[t]he language of the sworn statement for constructive service is a clear compliance with the statutory requirements of section 48.04, F.S. 1951 [now section 49.041], and this fact is not questioned." Id....

...Because this opinion deals with a question of great public importance as it affects the validity of real estate titles throughout the state, and because it does not appear that the supreme court has directly addressed the change in the statutory language in section 49.041 from "state" to "show", we certify the following question to the supreme court: DOES THE STATEMENT THAT DILIGENT SEARCH AND INQUIRY WAS MADE AS TO THE RESIDENCE OF DEFENDANT, IN AN AFFIDAVIT FOR CONSTRUCTIVE SERVICE PURSUANT TO SECTION 49.041, FLORIDA STATUTES (1991), MAKE THE AFFIDAVIT FACIALLY SUFFICIENT TO SUPPORT THE ISSUANCE OF CONSTRUCTIVE SERVICE BY PUBLICATION SO THAT ANY JUDGMENT RENDERED PURSUANT TO SUCH SERVICE IS NOT VOID BUT MERELY VOIDABLE AT THE INSTANCE OF THE AFFECTED PARTY? GUNTHER, J., and DOWNEY, JAMES C., Senior Judge, concur....

...of certain documents has need of them and cannot obtain the substantial equivalent without undue hardship. We cannot equate this rule, which contemplates an evidentiary hearing prior to an order of production, with the jurisdictional requirements of section 49.041, which does not require an evidentiary hearing but only an affidavit alleging certain jurisdictional facts....

...judgment appealed from. Accordingly, the judgment appealed from should be, and it is, reversed and set aside; and the cause is remanded for further proceedings not inconsistent herewith. Reversed. PIERCE, A.C.J., and MANN, J., concur. NOTES [1] Now § 49.041(1), F.S.A....

...e absence of a record of Vann's residence. [3] Required to be kept by § 193.39, F.S.A. [4] (1938), 136 Fla. 50, 186 So. 526, 534. [5] McDaniel v. McElvy (1926), 91 Fla. 770, 108 So. 820, 831. [6] §§ 48.02 and 48.04, F.S. 1965, now §§ 49.021 and 49.041, F.S.A....

...kind of suit. The mere fact that Deltona knew their addresses carries no import; the statute itself mentions that in the affidavit supporting service by publication a sworn statement must be made stating the residence "as particularly as is known." § 49.041(1), Fla....

...was based upon constructive service. The dispositive appellate question is whether such service was perfected so as to give the court jurisdiction. Finding the procedure to have been defective, we reverse. *802 The controlling statute is Fla. Stat. 49.041 (1973): "49.041 Sworn statement, natural person as defendant....

...cumstance to acquire the information necessary to enable him to effect personal service on the defendant. Gribbel v. Henderson, supra ; Larsen v. Larsen, supra . It is our opinion that the husband failed to comply with the requirements of Fla. Stat. 49.041 (1973) in a material and substantial way....

...service of process under § 48.194 cannot be had." § 49.021, Fla. Stat. (2005). For service by publication on a natural person, a mortgage holder must provide a sworn statement showing, inter alia, "[t]hat diligent search and inquiry have been made to discover the name and residence of such person." § 49.041, Fla....

...ervice of process by publication statute. Robinson v. Cornelius, 377 So.2d 776, 778 (Fla. 4th DCA 1979). An order of publication based on a sworn statement which does not comply with the statute fails to confer jurisdiction. Taylor, 358 So.2d at 70. Section 49.041, Florida Statutes (1987) reads in pertinent part: Sworn statement, natural person as defendant....

...§ 49.011, necessary to perfect service of process by publication had not been complied with and that consequently the court never acquired jurisdiction of the respondent. We agree that there was no valid service of process as required by Fla. Stat. §§ 49.011, 49.031, 49.041 (1973)....

...The motion and affidavits alleged that petitioner had falsely misstated respondent's mailing address. Fla. Stat. § 49.031 requires, as a condition precedent to service of process by publication under Chapter 49, the filing of a sworn statement. The matters which must be sworn to are delineated by Fla. Stat. § 49.041, which provides: "The sworn statement of the plaintiff, his agent or attorney, for service of process by publication against a natural person, shall show: (1) That diligent search and inquiry have been made to discover the name and residenc...

...Averting now to the merits of the Motion to Vacate, we find that the sworn statement alleging the last known address of a defendant is not tantamount to nor the equivalent of a statement as to defendant's residence as required by Fla. Stat. §§ 49.031 and 49.041....

...Upon sworn affidavit, plaintiffs obtained the appointment of an elisor. [2] The elisor was also unsuccessful in serving the defendants personally and, based upon his affidavit of that fact, plaintiffs procured an order authorizing constructive service of process pursuant to Section 49.041(3)(c), Florida Statutes (1979)....

...of the affidavits of diligent search and inquiry filed by Fox Run Association. The trial court entered an order finding lack of diligent search and inquiry by Fox Run Association, and setting aside the foreclosure sale to Southeast. Florida Statute Section 49.041 provides that a person may be served by publication upon verified statement showing on its face that "diligent search and inquiry have been made to discover the name and residence" of the person being served....

...A condition precedent to service by publication, however, is a sworn statement to be filed in the action by the petitioner, his agent or attorney. Section 49.031(1), Florida Statutes. Where, as here, a natural person is the defendant to be served by publication, the requirements for the sworn statement are governed by Section 49.041, Florida Statutes, which provides: Sworn statement, natural person as defendant....

...While this alternative procedure is constitutionally permissible, implicit in the statute is the notion that posting can only be employed where the plaintiff has given a sworn statement alleging service upon the person to be impossible. This procedure is required by Section 49.041, Florida Statutes, when service by publication is substituted for personal service of process....

...ecute and file a sworn statement showing that a “diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set forth in said sworn statement as particularly as is known to the affiant....” § 49.041(1), Fla....

...rticularity that it conducted a diligent search and inquiry to discover the address of the Castros and that such address was unknown to the Association. Averments in conclusory terms are insufficient to satisfy the particularity required pursuant to section 49.041....

...for the defendant and did not comply with the statute). The affidavit of diligent search filed by the Association merely states that the Castros’ “Residence [is] Unknown.” This is insufficient to satisfy the “particularity” requirement of section 49.041....

...inquired of the occupant of the premises whether the occupant knows the location of the borrower-defendant, with the following results: ________." Again, the Task Force agreed with this suggestion, and we modify the form to incorporate it. Finally, section 49.041, Florida Statutes (2009), sets forth the minimum requirements for an affidavit of diligent search and inquiry and states as follows: The sworn statement of the plaintiff, his or her agent or attorney, for service of process by publicat...

...the making of the sworn statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed defendant. § 49.041, Fla....

...Sharpe for the address of Lewis in the Bahamas, but was told that Ms. Sharpe did not know the address. The process server indicated on the back of the return of service that Lewis resides in the Bahamas. A representative of the mortgage company filed an affidavit of diligent search in compliance with section 49.041, Florida Statutes (2008)....

...re was a real estate "for sale” sign in front of the house, and the process server failed to contact the realtor. We reject this argument as there is no evidence in the record that the process server ever saw the sign. . All that is required under section 49.041, for service by publication, is a sworn statement that diligent search and inquiry has been made to discover the address of the person to be served, whether the person is over 18 years-of-age and that the whereabouts of the person is unknown....

...if their whereabouts are unknown by those lower in priority under the statute. She suggests that the funeral home must make a good faith effort, similar to that required for constructive service of process, to locate the unavailable next of kin. See § 49.041(1), Fla....

...ication. In Demars, the Fourth District said that an inadequate search would make the judgment voidable at the instance of the defendant landowner but that the judgment is not void so long as the affidavit alleges compliance with the requirements of section 49.041....

...Resort to constructive service by publication is predicated on "necessity", (25 Fla. Jur. Process, Sec. 31, page 409). In the instant case, no summons was requested or issued against appellant seeking personal service of the amended complaint. In attempting to obtain constructive service under F.S. 49.041, the affidavit filed as the basis for such service falls far short of the statutory requirements; e.g., it avers that "the present resident and mailing address of said appellant is as follows: 2741 N.W....

...st be strictly construed; and the burden of proof to sustain the validity of substituted service of process rests upon the person seeking to invoke the provisions of such statutes." Appellees have not and did not satisfy the strict requirements of F.S. 49.041, and, therefore, their constructive service upon the appellant is insufficient and legally void....

...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....

...ppellee's president, "that he has made diligent search and inquiry to determine the whereabouts of the Defendant and/or his residence herein, and that the same are unknown to the Plaintiff." This affidavit does not meet the technical requirements of Section 49.041, Florida Statutes, which requires not only that the statements show that diligent search and inquiry have been made but also that it set forth the residence of the defendant "as particularly as is known to the affiant." *804 Service of...

...he period in question, as well as appellee's knowledge of appellant's whereabouts and the diligence of appellee's inquiries *805 therein. The reasonable doubt produced by this evidence, the failure of appellee's affidavit to meet the requirements of Section 49.041, Florida Statutes, and appellee's bringing of the action in a circuit other than that where the property in question was located and the parties' business was transacted are factors which, in view of the requirements for strict constru...

...His return of service indicates nonservice, and explains that Ms. Tindal's son said that she was out of town and had not been heard from in two weeks. In August 1993, the Varners filed a sworn statement for constructive service pursuant to sections 49.031 and 49.041, Florida Statutes (1993), which tracks the statutory language without any extra information....

...A copy of a letter from a doctor in South Carolina confirming her illness was attached to that correspondence. The Varners argue that chapter 49 does not require them to make a diligent search for Ms. Tindal in South Carolina before resorting to service by publication. They contend that section 49.041 requires that they search diligently only for her "residence" and not for her current address....

...Appellee instituted this suit by filing a complaint styled "COMPLAINT TO FORECLOSE A PROMISSORY NOTE." In fact it is simply a complaint to recover judgment on a promissory note. Appellee sought to serve appellant by constructive service of process pursuant to the provisions of Chapter 49, Florida Statutes. As required by section 49.041, Florida Statutes (1985), appellant's attorney filed an affidavit in which he stated that he had made diligent search and inquiry to discover the name and residence of the defendant....

...Accordingly, we hold that on the complaint filed herein service by publication pursuant to Chapter 49 was not available and that no jurisdiction over appellant was ever obtained. Furthermore, the affidavit filed by appellant was insufficient to meet the requirements of section 49.041 because in places where appellant's residence should be provided the term "address" is used....

...The central issue was whether the mother perjured herself in stating in her affidavit, to achieve constructive service of process on a non-resident father [see section 68.07(6), Florida Statutes (1985)], that she had made diligent search and inquiry and that her ex-husband's residence was unknown to her. [Also see section 49.041(3)(a).] The father, seeking cancellation of the alleged fraudulent judgment, appeared at the show cause hearing....

...the making of the sworn statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed defendant. § 49.041, Fla....

...The sworn statement must show that a diligent search has been conducted to discover the name and address of the person sought to be served, whether the person sought is over 18, and *662 that the person's address is unknown or known, and if known, is included in the affidavit. Section 49.041, Florida Statutes (2006)....

...NOTES [1] [Quoted from the department's brief on appeal; emphasis supplied]. [2] Although decisional law apparently permits the practice of filing an affidavit that merely tracks the language of the statute in conclusory language, I think this practice is incorrect because section 49.041, Florida Statutes (2006) requires that the affidavit "show" that a "diligent search and inquiry have been made." In my view, to constitute a "showing" an affiant must set forth facts from which the trial court can verify that the searc...

...ed *549 during all relevant times. As a condition precedent to service by publication, the plaintiff must file a sworn statement that, inter alia, a diligent search was made to discover the name and residence of the person to be served. §§ 49.031, 49.041, Fla....

...t the utilization of constructive service of process because it alleged that a diligent search and inquiry were made. The trial court's order is erroneous for two reasons. First, the statement filed by the process server is not sworn, as required by section 49.041....

...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....

...The appellant, John Santini, challenges the denial of his motion to quash constructive service of process and his motion to abate the action for lack of jurisdiction over the person. We conclude that Resolution Trust Corporation (Resolution Trust) failed to comply with section 49.041, Florida Statutes (1993), and reverse....

...g the making of the sworn statement, or conceals himself so that process cannot be personally served upon him, and that affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed defendant. § 49.041, Fla.Stat. (1993). Resolution Trust filed two affidavits of diligent search. Neither affidavit complies with section 49.041....

...Third, the affidavits fail to allege whether Santini is actually in Florida. Finally, the affidavits are also silent as to whether Santini has been absent from the state for more than 60 days or has concealed himself so that process cannot be personally served upon him. Section 49.041 is strictly construed against a plaintiff who seeks service of process under it. See Batchin v. Barnett Bank of Southwest Florida, 647 So.2d 211 (Fla. 2d DCA 1994). Since the affidavits filed in this case do not comply with Section 49.041, the constructive service upon Santini is insufficient....

...y have his day in court in accordance with due process requirements.” Id. Green Emerald Homes, LLC v. Bank of New York Mellon, 204 So. 3d 512, 515 (Fla. 4th DCA 2016); accord § 49.011, Fla. Stat. (2017); § 49.021, Fla. Stat. (2017); § 49.041, Fla....

or in an affidavit or other sworn statement. Section 49.041 provides further that the sworn statement shall

...the making of the sworn statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed defendant. § 49.041, Fla....

PER CURIAM. Affirmed. § 49.041, Fla....

return of service affidavit did not comply with section 49.041, Florida Statutes (1985). The trial court held

...a. 4th DCA 1989), this court reversed appellee’s first constructive service upon appellant and held, “Simply stating that defendant’s residence - is unknown and that one attempt was made at service is insufficient under [the] circumstances.” Section 49.041, Florida Statutes (1987), governing constructive, service states in part: The sworn statement of the plaintiff, his agent or attorney, for service of process by publication against a natural person, shall show: ⅜ * * ijt * * (3) In a...

...Although water and electric was on at the above address, I was unable to find anyone at home or to even determine if anyone was living there.’ Again, we reverse. The amended affidavit does not allege sufficient facts to satis *802 fy the requirements of section 49.041(3)(c)....

...lication stating that Mr. Garnett could not be found within Florida for the purpose of service of the summons. The attorney asserted that constructive service was authorized in this instance by rule 1.070(e), Florida Rules of Civil Procedure, and by section 49.041, Florida Statutes (2007)....

...isdiction of the court. § 49.011(3), Fla. Stat. (2007). As a condition precedent to service by publication, a statement must be filed in the action executed by the plaintiff, the plaintiff's agent or attorney, setting forth the matters contained in section 49.041, Florida Statutes. More specifically, section 49.041 requires the sworn statement of the plaintiff or his or her agent or attorney to show for purposes of obtaining service by publication on a natural person that: (1) a diligent search and inquiry had been made to discover the name and r...

...The appellant Cezarina Onofrio and ap-pellee Rubens Onofrio were married in Brazil in 1949 and had three children. In 1956 Rubens came to Florida and, except for periodic visits to Brazil, has resided in Florida since. In 1971 Rubens filed for dissolution of marriage. Cezarina was served constructively by publication under section 49.041, Florida Statutes (1971)....

...In 1989 Cezarina filed a petition to set aside the judgment of dissolution of marriage. She alleged that she received no notice of the dissolution judgment until September, 1988, and that the statement of Cezarina’s residence given by Rubens pursuant to section 49.041 was incorrect....

...had actual knowledge long ago, while Cezarina contends that she did not have knowledge until 1988. Cezarina is therefore entitled to an eviden-tiary hearing, and findings, on the Lani-gan issue. Cezarina also contends that Rubens’ compliance with section 49.041 was insufficient....

...Heathgate-Sunflower Homeowners Ass’n, 593 So.2d 549, 551-52 (Fla. 4th DCA 1992) *238 (citation omitted). While there is no bright-line rule for what constitutes a diligent search, generally, in reference to the diligent search and inquiry requirement of section 49.041, Florida Statutes, “the test is whether the complainant reasonably employed the knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstance to acquire the informatio...

not strictly comply with the requirements of section 49.041(3), Florida Statutes (2019). That statutory

...s order denying Mazine’s Motion to Quash Service by Publication. While Appellee submits that adequate evidence was presented to the trial court to establish that Mazine was avoiding service and service by publication would be permitted pursuant to section 49.041(3)(c),. Florida Statutes (2013), Appellee concedes that the trial court’s order was incorrectly predicated on a sworn statement made pursuant to section 49.041(3)(a), i.e., that Mazine’s residence was “[u]nknown to the affiant.” Accordingly, we reverse the trial court’s order and remand for further proceedings....

...nying Mazine’s Motion to Quash Service by Publication. While Appellee submits that adequate evidence was presented to the trial court to establish that Mazine was avoiding service and service by publication would be permitted pursuant to section 49.041(3)(c), Florida Statutes (2013), Appellee concedes that the trial court’s order was incorrectly predicated on a sworn statement made pursuant to section 49.041(3)(a), i.e., that Mazine’s residence was “[u]nknown to the affiant.” Accordingly, we reverse the trial court’s order and remand for further proceedings. REVERSED AND REMANDED....

...ed *549 during all relevant times. As a condition precedent to service by publication, the plaintiff must file a sworn statement that, inter alia, a diligent search was made to discover the name and residence of the person to be served. §§ 49.031, 49.041, Fla....

...the utilization of constructive service of process because it alleged that a diligent search and inquiry were made. The trial court’s order is erroneous for two reasons. First, the statement filed by the process server is not sworn, as required by section 49.041....

...We reverse the lower court’s denial of appellants' motion to set aside a final judgment of foreclosure and order confirming a sale and lis pendens because the record supports that the constructive service of process attempted on the appellants was defective. According to the affidavit submitted by Glendale, pursuant to section 49.041 Fla.Stat....

...She simply referred to an address in the Glendale file and made no attempt to verify a residential address for the defendants. . Glendale’s minimal effort toward discovery of a residential address for the appellants does not meet the diligent search and inquiry requisites of section 49.041 Fla.Stat....

...This leaves us with the question of the correctness of the court’s order denying Appellant’s motion to quash service. This motion to quash was accompanied by Appellant’s affidavit. An affidavit- in support of constructive service was filed on behalf of Ap-pellees. This affidavit strictly conforms to the requirements of Section 49.041, Florida Statutes....

...Miami National Bank, Fla.App.1962, 143 So.2d 535 ; Braren v. Lawyers’ Realty Abstract Co. of Sarasota, Fla.App. 1967, 196 So.2d 244 . The Downing’s collateral attack alleged lack of diligent search and inquiry to ascertain Mrs. Downing’s residence. Florida Statute 49.041, F.S.A....

service affidavit was deficient pursuant to section 49.041(3)(c), Florida Statutes (1997), because it

...3d 1199, 1201 (Fla. 4th DCA 2010); and LPP Mortg. Ltd. v. Bank of Am., N.A., 826 So. 2d 462, 463-64 (Fla. 3d DCA 2002)). 2  Upon our review, the trial court correctly determined that the affidavit of diligent search, filed pursuant to section 49.041, Florida Statutes (2023), was sufficient on its face....

...of process was attempted on Grudenic at three different residential addresses in Miami-Dade County, on seventeen different dates between July 13 and September 26, 2023. We find no error in the trial court’s determination that the affidavit of diligent search complied with section 49.041 and was facially sufficient....