5D08-4486 Miller v. Partin

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D08-4486

Case Date: 03/08/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2010

JOSEPHINE JENNIE MILLER, Appellant, v. GLADYS G. PARTIN, AS TRUSTEE, ETC., ET AL., Appellee. ________________________________/ Opinion filed March 12, 2010 Appeal from the Circuit Court for Orange County, Cynthia Z. Mackinnon, Judge. Frederic B. O'Neal, Windermere, for Appellant. J. Stephen McDonald and Stephanie L. Knott, of Shuffield, Lowman & Wilson, P.A, Orlando, for Appellee. Case No. 5D08-4486

MONACO, C.J. The appellant, William J. Garnett, III, appealed from a final order in a partition action. As Mr. Garnett passed away prior to the decision in this appeal, however,

Josephine Jennie Miller was substituted for him as appellant. The primary issue raised by the appellant concerns whether constructive service upon Mr. Garnett was proper. Because we conclude that it was not, we reverse.

Mr. Garnett was an owner of an undivided interest as a tenant-in-common of a parcel of real estate consisting of about 25 undeveloped acres. The appellees, Gladys G. Partin, et al., were the other tenants-in-common with respect to the parcel and were the plaintiffs below. The appellees filed a complaint seeking, among other relief, a partition of the property. The complaint alleged that the acreage was not reasonably susceptible to an equitable physical division without prejudice to the appellees because of the configuration of the property. The appellees for this reason asked for a partition sale pursuant to section 64.071, Florida Statutes (2007), and claimed that a sale would not be prejudicial to Mr. Garnett's interest. The appellees also requested an accounting to factor in any expenses paid by the plaintiffs and any possible waste committed by Mr. Garnett. Although a summons was issued, the summons and complaint went unserved because Mr. Garnett's residence was, according to the Sheriff's Office, a piece of wooded property. The sheriff's return contained a note to the effect that the process server was told by someone in a nursery business next door to this property that the defendant lived somewhere in the woods in a makeshift hut. The return of service read further, "It is close to impossible to get back to him." Based solely on this return, an attorney for the appellees filed an affidavit for service by publication 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). In addition, the attorney affied that he had made a diligent search and inquiry to locate William Garnett as evidenced by the return

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of service from the Orange County Sheriff's Office. The attorney wrote that to his "best knowledge and belief," Mr. Garnett "has concealed himself so that process cannot be personally served upon him." Notice of the action was then published. The appellees next filed a motion for default by clerk for failure of Mr. Garnett to file a responsive pleading to the complaint that had been made available through publication or constructive service, and the clerk in due course entered a default. They then moved for entry of a final default judgment, and the trial court granted the motion. The court subsequently entered a final judgment for partition, and the property was sold at auction. The appellees were the successful bidders. Eventually1, Mr. Garnett filed a motion to set aside the default and default judgment, along with affidavits of Mr. Garnett. The Garnett affidavit indicated that Mr. Garnett had lived at the same place for the past twenty years, and that the same plaintiffs had served process on him personally at the same address on at least two separate occasions. In addition, Mr. Garnett affied that the attorney who signed the affidavit to support constructive service had actually spoken to Mr. Garnett by telephone, and told Mr. Garnett "not to worry about the paperwork he had received about the case, and that the paperwork did not mean anything." Mr. Garnett's affidavit also said that he was never asked to meet a deputy for purposes of accepting service, and that although his home is not visible from the road, "the Plaintiffs have been to Garnett's home." Finally, Mr. Garnett also indicated that his residence is accessible from a dirt road from a gate on the primary cross street, and that his neighbor (who the

We have compacted many other procedural activities of the parties leading to the motion to set aside the default and default judgment so as not to confuse the dispositive facts. We have concluded that we have jurisdiction over this matter. 3

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deputy apparently talked to), had access to a key to the gate. No part of this affidavit is rebutted by the appellees in the record, except that they assert that their attorney did not tell Mr. Garnett that the paperwork was not important. The appellees subsequently moved to strike the motion to set aside default and default judgment. The trial court granted the motion, and then approved an accounting and distribution of funds and ordered the issuance of a new certificate of title. This appeal followed. A fundamental requirement of due process in any judicial proceeding is notice reasonably calculated both to apprise interested parties of the pendency of the action, and to give the party so notified an opportunity to present his or her side of the controversy. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Due process considerations do take into account the need to serve a party by publication when the circumstances authorize it, but notice by publication is generally regarded as insufficient with respect to an individual whose name and address are known or easily ascertainable. Robinson v. Hanrahan, 409 U.S. 38, 40 (1972); Lorie v. Calderon, 982 So. 2d 1199, 1201 (Fla. 3d DCA 2008). On its surface the law concerning service of process by publication is relatively clear. Where personal service of process cannot be had, service of process by

publication may be utilized in any case allowed by section 49.011 upon any party, natural or corporation, known or unknown.

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