SOCIETE HELLIN, S.A. and FRANCISCO MORILLO v. VALLEY COMMERCIAL CAPITAL, LLC , 254 So. 3d 1018 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SOCIETE HELLIN, S.A., a Panamanian corporation,
and FRANCISCO MORILLO,
Appellants,
v.
VALLEY COMMERCIAL CAPITAL, LLC, a New Jersey limited liability
company,
Appellee.
No. 4D18-772
[September 12, 2018]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; David Haimes, Judge; L.T. Case No. 12-
015474 (8).
Melissa B. Coffey and Joshua M. Hawkes of Foley & Lardner LLP,
Tallahassee, for appellants.
M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, and Bridget
Ann Berry and Lauren R. Whetstone of Greenberg Traurig, P.A., West Palm
Beach, for appellee.
PER CURIAM.
The defendants appeal from a non-final order denying their motion to
quash substitute service of process. Because the plaintiff failed to exercise
due diligence in attempting to locate and serve the defendants, we
reverse. 1
Facts
The plaintiff, Valley Commercial Capital, LLC (“VCC”), sued the
defendants in May 2012 after they defaulted on an aircraft lease and
guaranty. The complaint alleged that defendant Societe Hellin, S.A. (“SH”)
1 We do not reach defendants’ arguments that plaintiff failed to comply with
section 48.161’s technical requirements for substitute service or that defendant
Morillo was required to be served according to the Hague Convention.
was a Panamanian corporation and defendant Francisco Morillo (“Morillo”)
was a dual citizen of Venezuela and France. VCC sought to effect service
on Morillo both in his individual capacity and in his representative
capacity vis-à-vis SH. The summonses for both defendants were issued
using a Venezuelan address identified in the lease as SH’s address.
In January 2013, VCC moved for an extension of time to serve the
defendants. It asserted that it had made multiple unsuccessful attempts
to serve them and was attempting to serve them in Panama and Venezuela,
but did not describe these service attempts.
In February 2013, VCC hired a private investigator, who found that
Morillo maintained a condo on Brickell Avenue in Miami. Based on this
information, instead of trying to serve defendants in Venezuela or Panama,
between February and April 2013, VCC focused on serving Morillo at the
Brickell condo. Unsuccessful, VCC suspended its efforts until July 2014,
when it heard that Morillo was back in Miami. VCC still could not locate
Morillo, but it served his wife at the Brickell condo in July 2014.
Defendants moved to quash the service, arguing that it was ineffective
because Morillo was not a co-resident with his wife at the Brickell condo.
The trial court granted the motion, finding that Morillo did not reside there.
In 2015, VCC served discovery on defendants. Defendants produced a
copy of SH’s 2003 articles of incorporation, which indicated that SH’s
president and secretary were located in Miami and disclosed the address
of SH’s registered agent in Panama. VCC also deposed Morillo’s wife, who
confirmed that Morillo did not reside at the Brickell condo.
In July 2016, VCC filed a motion to permit substitute service on
defendants. While that motion was pending, VCC again made several
service attempts at the Brickell condo, but was still unsuccessful. 2 In
February 2017, a hearing was held on VCC’s motion to use substitute
service. The trial court commented: “At some point [VCC] needs to bring
[defendants] to court and [has] to get service somehow” and “What are they
supposed to do, go serve him in Venezuela?” The court then granted VCC’s
motion for substitute service. Accordingly, VCC served the Secretary of
State and sent the notice of service and a copy of the process to defendants
at eight different addresses. Defendants moved to quash the substitute
service, arguing, among other things, that VCC failed to exercise due
2In October 2016, VCC served the president and secretary identified in SH’s 2003
articles of incorporation. Defendants moved to quash that service; the motion
appears to be pending.
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diligence to locate and serve defendants and that VCC failed to comply
with the technical statutory requirements for substitute service. The trial
court denied the motion to quash. Defendants appealed.
Analysis
The general rule in Florida is that a defendant must be personally
served. See Alvarado-Fernandez v. Mazoff, 151 So. 3d 8, 17 (Fla. 4th DCA
2014). However, there are exceptions to that rule. For instance, as
relevant to this case, section 48.181, Florida Statutes (2012), authorizes
substitute service on nonresident defendants doing business in Florida
where the cause of action arises from the defendant’s Florida business
activities. Pelycado Onroerend Goed B.V. v. Ruthenberg, 635 So. 2d 1001,
1003 (Fla. 5th DCA 1994).
“Before using the substitute service statutes, a plaintiff must
‘demonstrate the exercise of due diligence in attempting to locate the
defendant.’” Alvarado-Fernandez, 151 So. 3d at 16 (quoting Wiggam v.
Bamford, 562 So. 2d 389, 391 (Fla. 4th DCA 1990)); see also Coastal
Capital Venture, LLC v. Integrity Staffing Sols., Inc., 153 So. 3d 283, 285
(Fla. 2d DCA 2014) (“Substitute service is unauthorized if personal service
could be obtained through reasonable diligence.”).
The test [for determining the sufficiency of constructive or
substitute service] is not whether it was in fact possible to
effect personal service in a given case, but whether the
[plaintiff] reasonably employed knowledge at [her] command,
made diligent inquiry, and exerted an honest and
conscientious effort appropriate to the circumstances, to
acquire the information necessary to enable [her] to effect
personal service on the defendant.
Alvarado-Fernandez, 151 So. 3d at 17 (alterations in original) (quoting
Wiggam, 562 So. 2d at 391).
A common theme in cases holding that the plaintiff failed to exercise
due diligence is that “the plaintiff faile[d] to follow an ‘obvious’ lead.”
Dubois v. Butler ex rel. Butler, 901 So. 2d 1029, 1030 (Fla. 4th DCA 2005).
In Dubois, the parties were in a car accident in 2000, but the plaintiff did
not sue the defendant until 2003. Id. at 1031. The plaintiff attempted to
serve the defendant only at the address listed on the nearly three-year-old
accident report. Id. Other than that, the plaintiff merely checked
telephone listings for the defendant. Id. This court held that the plaintiff
failed to use due diligence to justify substitute service. Id.In Coastal Capital, the plaintiff made repeated attempts to serve the
defendants at their condo in Sarasota even though the plaintiff knew that
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the defendants were on an extended business trip in California. 153 So.
3d at 285. There, the plaintiff was in contact with one of the defendants
but failed to ask him where he could be served. Id. at 285. The Second
District held that “[o]bviously, the necessary diligence is not established
by repeatedly sending a process server to an address when the resident is
known to be out of town.” Id.
In Knabb v. Morris, 492 So. 2d 839 (Fla. 5th DCA 1986), after a car
accident, the plaintiff hired an investigator who attempted service at three
different addresses. The plaintiff also checked the telephone directory, the
postal service, and several utility companies before attempting substitute
service. Id. at 840-41. The Fifth District held that those efforts did not
constitute due diligence because the plaintiff ignored certain obvious
leads, including the vehicle accident report which contained the addresses
of the occupants of the defendant’s car, who the plaintiff could have
contacted to inquire about the defendant’s whereabouts. Id.In Alvarado-Fernandez, on the other hand, after a car accident, the
plaintiff repeatedly tried to serve the defendant in Colombia, where the
defendant was a citizen. 151 So. 3d at 17. The plaintiff used the address
and driver’s license number that the defendant had supplied to her rental
car company, but that information was incorrect. Id. The plaintiff sought
discovery from the rental car company, hired two separate attorneys to try
and find the defendant in Colombia, and investigated social media, but
could not locate the defendant. Id. Under these facts, this court held that
the plaintiff’s efforts were duly diligent so as to justify substitute service.
Id. at 18.
This case is distinguishable from Alvarado-Fernandez and aligns more
with the cases in which the plaintiff failed to follow an “obvious lead.”
While the record here does indicate that VCC made substantial efforts to
locate and serve defendants, those efforts were nearly all directed at the
Brickell condo. Although Morillo did visit and maintain the Brickell condo,
he did not reside there, as VCC had learned during the wife’s deposition
in 2015 and the court had found in 2016.
Repeated attempts at service on the wrong location do not amount to
due diligence. See Coastal Capital, 153 So. 3d at 285; Robinson v.
Cornelius, 377 So. 2d 776, 778 (Fla. 4th DCA 1979) (finding due diligence
was not shown where the plaintiff knew that the defendant did not reside
at a particular address but attempted service there on multiple occasions);
cf. Delancy v. Tobias, 26 So. 3d 77, 79 (Fla. 3d DCA 2010) (finding that
due diligence was established where plaintiff attempted service twenty-two
times at the correct address, but was unable to effect service because it
was a gated residence).
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Here, there is no evidence in the record showing that VCC made any
attempt to locate or serve defendants in Venezuela or Panama. While this
court in Alvarado-Fernandez acknowledged that the defendant’s location
in Colombia “greatly impeded the logistics of the search efforts as well as
attempts at personal service,” 151 So. 3d at 18, it also relied on the
plaintiff’s efforts to locate and serve the defendant in Colombia in finding
that the plaintiff exercised due diligence. Id.
In contrast, here, at the time it filed the complaint, VCC had the
Venezuelan address listed for SH on the lease. It even sent a demand letter
there. In July 2015, defendants produced SH’s articles of incorporation,
which disclosed other Miami and Venezuelan addresses for SH’s directors
and a Panamanian address for SH’s registered agent. Yet the record
contains no evidence of any personal service attempts at the Venezuelan
addresses or at the registered agent’s address in Panama.
At the hearing on VCC’s motion to permit substitute service, the trial
court asked, “What are they supposed to do, go serve him in Venezuela?”
In response to this question, we note that while VCC did not have to serve
Morillo in Venezuela, it did have to engage in duly diligent efforts to effect
personal service upon him. “Because personal service is contemplated
under Florida law, serving a defendant in another country necessarily
requires ‘the transmittal of documents abroad’ . . . .” Puigbo v. Medex
Trading, LLC, 209 So. 3d 598, 601 (Fla. 3d DCA 2014) (citation omitted);
see also Godsell v. United Guar. Residential Ins., 923 So. 2d 1209, 1215
(Fla. 5th DCA 2006) (finding no due diligence where plaintiff was informed
that defendant lived in Canada, but made no effort to discover her
Canadian address).
Because the record shows no efforts to locate and serve defendants in
Venezuela or Panama, and instead reflects that VCC single-mindedly
focused on the Brickell condo where Morillo sometimes stayed but did not
reside, we reverse.
Reversed and remanded.
WARNER, LEVINE and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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