Florida Commercial Real Estate Litigation Blog

Once you have filed your complaint seeking damages for breach of a lease or guaranty, you are required to serve the party from which you are seeking relief. But what happens when you are having difficulty serving the breaching party because they are either intentionally avoiding service or they have moved out of state?

As a preliminary matter, it’s important to realize that a money judgment obtained without proper personal service may be void and may be set aside if successfully challenged. Even worse, if the statute of limitations has run on your claim, after the defendant sets aside your judgment you won’t be able to refile your claim. So a plaintiff seeking a money judgment must get effective personal service.

There are two common misconceptions as to how a complaint seeking a money judgment must be served.

Common Misconception #1—If you can’t locate a party and personally serve him, you can simply publish a copy of the claim and then get a money judgment. FALSE. You cannot get a valid money judgment by serving a party via publication only. Serving by publication only allows you to get a judgment on property (in rem), like in a foreclosure action—it won’t permit you to get a money judgment for breach of contract.

Common Misconception #2—To obtain personal service (in personam), you must physically serve the individual. FALSE. You can get a money judgment without physically handing a copy of the complaint to a party as more specifically detailed below.

So if you are a party seeking to obtain a money judgment for breach of lease against a guarantor or individual who intentionally evades service or resides out of state, you need to follow the process specifically outlined in Sections 48.161 and 48.181, Fla. Stat. These Sections set forth a little known method of obtaining personal service through a process known as substitute service. At its core, substitute service requires a plaintiff to amend their complaint to allege that a defendant is intentionally avoiding service or has moved out of state, and then requires a plaintiff to complete service through a process that includes serving the Secretary of State.

The Fourth District Court of Appeal has opined that to use substitute service the plaintiff must demonstrate that he attempted to locate the defendant and made an effort to acquire the information necessary to effect personal service. Wiggam v. Bamford, 562 So.2d 389, 391 (Fla. 4th DCA 990). Accordingly, to obtain a money judgment against a nonresident who conducted business in Florida or a resident intentionally concealing his whereabouts to evade service, strict compliance with Sections 48.161 and 48.181 is required.