Cheshire v. Birenbaum

District Court of Appeal of Florida

Cheshire v. Birenbaum

688 So. 2d 430, 1997 Fla. App. LEXIS 1572, 1997 WL 80350

CourtDistrict Court of Appeal of Florida

DecidedFebruary 26, 1997

DocketNos. 96-2536, 96-2418

StatusPublished

Cited by2 cases

This text of 688 So. 2d 430 (Cheshire v. Birenbaum) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cheshire v. Birenbaum, 688 So. 2d 430, 1997 Fla. App. LEXIS 1572, 1997 WL 80350 (Fla. Ct. App. 1997).

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Opinion

PER CURIAM.

Larry Cheshire appeals from orders denying his motions to dismiss for insufficient service of process.¹ For the following reasons, we reverse.

In 1996, plaintiffs sued Cheshire, a resident of Alachua County, in Dade Circuit Court. Cheshire was served in Alachua County by a process server appointed by the sheriff of Marion County. Cheshire moved to dismiss for insufficient service of process, specifically alleging that the process server was not authorized to serve him in Alachua County. In both cases, the trial court denied the motions to dismiss, and in doing so, erred.

Section 48.021(3), Florida Statutes (1995), provides that “[a] special process server appointed in accordance with this section shall be authorized to serve process in only the county in which the sheriff who appointed him or her resides_” (Emphasis added). Here, the process server was authorized to serve process only in Marion County. Service on Cheshire was thus legally defective, even though he received actual notice of the suit filed in Dade County. See Abbate v. Provident Nat’l Bank, 631 So.2d [431]*431312, 315 (Fla. 5th DCA 1994) (it is “overwhelming law in Florida that strict compliance with the statutes governing service of process is required”). A harmless error analysis does not apply. Id.

Reversed and remanded for further consistent proceedings.

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PER CURIAM.

Larry Cheshire appeals from orders denying his motions to dismiss for insufficient service of process.¹ For the following reasons, we reverse.

In 1996, plaintiffs sued Cheshire, a resident of Alachua County, in Dade Circuit Court. Cheshire was served in Alachua County by a process server appointed by the sheriff of Marion County. Cheshire moved to dismiss for insufficient service of process, specifically alleging that the process server was not authorized to serve him in Alachua County. In both cases, the trial court denied the motions to dismiss, and in doing so, erred.

Section 48.021(3), Florida Statutes (1995), provides that “[a] special process server appointed in accordance with this section shall be authorized to serve process in only the county in which the sheriff who appointed him or her resides_” (Emphasis added). Here, the process server was authorized to serve process only in Marion County. Service on Cheshire was thus legally defective, even though he received actual notice of the suit filed in Dade County. See Abbate v. Provident Nat’l Bank, 631 So.2d [431]*431312, 315 (Fla. 5th DCA 1994) (it is “overwhelming law in Florida that strict compliance with the statutes governing service of process is required”). A harmless error analysis does not apply. Id.

Reversed and remanded for further consistent proceedings.

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Bluebook (online)

688 So. 2d 430, 1997 Fla. App. LEXIS 1572, 1997 WL 80350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheshire-v-birenbaum-fladistctapp-1997.

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