Choose a Topic

View Our Case Results
Kelley/Uustal Practice Areas

Paola A. Alvarado-Fernandez v. Matthew Mazoff, Case No. 4D14-503 (4th DCA)

In Alvarado-Fernandez, the Fourth District affirmed the trial court's denial of the defendant's motion to dismiss arguing improper service of process. The case arose after the plaintiff's vehicle was struck by a vehicle being driven by the defendant, a Columbian citizen, and rented from Alamo. Following various attempts to secure process, the plaintiff effected substitute service on the defendant by serving the Secretary of State in accordance with Fla. Stat. 48.161. The defendant asserted four arguments, each of which were rejected by the Fourth DCA.

First, the defendant argued that the plaintiff failed to strictly comply with two treaties -- the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the Inter-American Service Convention on Letters Rogatory and Additional Protocol ("IASC") -- between Columbia and the United States when attempting to serve process on the defendant. The Fourth DCA noted that the effect of international legal agreements entered into by the United States on domestic law depends upon whether the agreement is self-executing or non-self-executing. International treaties are self-executing if they have the force of law without the need for subsequent legislative action. Treaties that are not considered self-executing are understood to require implementing legislation to provide legal authority to carry out the functions and obligations contemplated by the agreement.

The Fourth DCA found that the Hague Convention is self-executing. The Hague Convention is of "equal dignity with acts of Congress and enjoys the constitutional status of 'supreme Law of the Land.'" Therefore, the Hague Convention preempts inconsistent methods of service prescribed by state law in all cases to which it applies. The Hague Convention, however, is expressly inapplicable in cases where the location of the person to be served is unknown. The defendant's location in this case was unknown. In addition, Columbia acceded to the Hague Convention on April 10, 2013, and it did not enter into force until November 1, 2013, following the events in this case.

"While compliance with the provisions of the Hague Convention may be mandatory, parties are not required to use all of the alternatives set forth in the IASC to the exclusion of any others." The Fourth DCA noted that the IASC is not self-executing, and it is neither the exclusive nor the mandatory channel for transmission of service of process between signatories. Where there is no binding international treaty governing service of process, a party must look instead to Florida's service of process rules. Therefore, since the Hague Convention did not apply, the trial court was permitted to accept compliance with either the IASC, the law of Columbia, or any method provided by the Florida Statutes or Rules of Procedure. Accordingly, the Fourth DCA found that because the Hague Convention did not apply and compliance with the IASC was not required, service upon the defendant was valid if perfected in accordance with Sections 48.161 and 48.181, Florida Statutes.

Second, the defendant argued that the plaintiff failed to comply with Florida's substituted service statutes. Section 48.161 requires substituted service be evidence by (1) registered or certified mailing to the nonresident of (a) a notice of such substituted service and (b) a copy of the process, which must be evidenced by (c) the filing of the nonresident's return receipt and (d) an affidavit of compliance by plaintiff or his or her attorney; or (2) an appropriate officer's return showing service on the nonresident within or without the state of Florida. Section 48.181 sets forth the jurisdictional requirements for substituted service of process, and Section 48.171 provides that the Secretary of State is the designated agent for a non-resident defendant who has caused injury by the operation of a motor vehicle within the state. Further, non-resident motorists have a duty to make their whereabouts known in the event of an accident, and a defendant's attempt to conceal their whereabouts will not preclude the courts from obtaining jurisdiction over them. In addition, before using substitute service, a plaintiff must demonstrate the exercise of due diligence in attempting to locate the defendant. Defendant asserted that the plaintiff failed to file a copy of the postal receipt. However ,the Fourth DCA found that the court may dispense with the filing of a postal receipt if the substituted service statute is invoked on the ground that the defendant is evading service. Moreover, the Fourth DCA found that the plaintiff persistently searched for the defendant in Columbia, and met his due diligence requirement.

Third, the defendant argued that the plaintiff failed to timely file an affidavit of compliance. The Fourth DCA found that the trial court acted within its discretion by accepting the plaintiff's untimely affidavit. Fourth, the defendant argued that the trial court erred by denying the motion to dismiss pursuant to Rule of Procedure 1.070(j), which is meant to prevent a plaintiff from filing suit and taking no action to move the claim forward. The Fourth DCA rejected this argument, finding that the plaintiff continuously made efforts to comply with Florida law and serve the defendant -- it was the defendant who attempted to evade service. Accordingly, the trial court's denial of the motion to dismiss was affirmed.

Recognized as One of the Nation's Best Law Firms

Don't just take our word for it. See it for yourself.

Client Reviews & Testimonials
  • AV Peer Review Rated
  • Florida Super Lawyers
  • South Florida Top Rated Lawyers
  • Best Law Firms
  • The Best Lawyers in America
  • The National Trial Lawyers - Top 100 Trial Lawyers
  • South Florida Business Journal - 2017  Best Places to Work
  • Sun Sentinel - 2017 Top Work Places
© 2014 All Rights Reserved The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.