FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Non-Final Appeal from the Circuit Court for Hernando County,
Donald E. Scaglione, Judge.
Gregory D. Jones and Carla M. Sabbagh, of Rywant, Alvarez,
Jones, Russo & Guyton, P.A., Tampa, for Appellant.
M. Melton, Christopher M. Klemawesch, and Gina M. Girardot,
Whittel & Melton, LLC, St. Petersburg, for Appellee,
Estate of Curt Hudson, by and through Jennifer Hudson, as
Appearance for Other Appellee.
Moss appeals the trial court's order denying her motion
to quash service of process. Concluding that substituted
service of process under section 48.171, Florida Statutes
(2015), was not properly obtained, we reverse.
Jennifer Hudson, as personal representative of the Estate of
Curt Hudson, deceased, filed a wrongful death complaint
against Moss for damages arising out of an automobile
accident in which the vehicle Moss was driving struck the
decedent, who was riding a bicycle. The complaint alleged,
among other things, that Moss was a resident of Hernando
County. After several unsuccessful attempts to personally
serve Moss with the initial complaint, Hudson attempted to
obtain substituted service of process pursuant to section
48.171 by serving Moss through the Secretary of State. This
statute provides, in pertinent part:
Any nonresident of this state . . . or any resident of this
state, being the licensed operator or owner of . . . any
motor vehicle under the laws of this state, who becomes a
nonresident or conceals his or her whereabouts, by the
acceptance or licensure and by the operation of the motor
vehicle, either in person, or by or through his or her
servants, agents, or employees . . . within the state
constitutes the Secretary of State his or her agent for the
service of process in any civil action begun in the courts of
the state against such operator or owner . . . of the motor
vehicle, arising out of or by reason of any accident or
collision occurring within the state in which the motor
vehicle is involved.
§ 48.171, Fla. Stat. (2015).
by counsel, moved to quash service of process, asserting that
Hudson had not strictly complied with the requirements of
section 48.171 and had also failed to comply with the
separate procedural requirements of section 48.161, Florida
Statutes (2015), for effectuating substituted service upon
the Secretary of State. Following a hearing, the trial court
denied the motion, finding that Moss was
"represented," "aware of the case," and
"accountable herself of any due process." The court
further found that Hudson had clearly demonstrated sufficient
attempts to personally serve Moss with process.
court's ruling on a motion to quash service of process is
subject to a de novo standard of review. Hernandez v.
State Farm Mut. Auto. Ins. Co., 32 So.3d 695, 698 (Fla.
4th DCA 2010) (citing Mecca Multimedia, Inc. v.
Kurzbard, 954 So.2d 1179, 1181 (Fla. 3d DCA 2007)).
Further, "[b]ecause substituted service of process
statutes provide an exception to the general rule that a
defendant must be personally served, they must be strictly
construed to protect due process guarantees."
Alvarado v. Cisneros, 919 So.2d 585, 588-89 (Fla. 3d
DCA 2006) (citing Monaco v. Nealon, 810 So.2d 1084,
1085 (Fla. 4th DCA 2002); McAlice v. Kirsch, 368
So.2d 401, 402 (Fla. 3d DCA 1979)).
trial court first erred in denying Moss's motion to quash
because she was "aware" of the case. Actual
knowledge of a suit does not cure insufficient service of
process. McDaniel v. FirstBank P.R., 96 So.3d 926,
929 (Fla. 2d DCA 2012) (citing Napoleon B. Broward
Drainage Dist. v. Certain Lands Upon Which Taxes Due, 33
So.2d 716, 718 (Fla. 1948)). Moreover, counsel's
appearance and the filing of a motion to quash insufficient
service of process, without more, are not a waiver of the
defense of lack of personal jurisdiction. Id. at 928
(citing Oy v. Carnival Cruise Lines, Inc., 632 So.2d
724, 725-26 (Fla. 3d DCA 1994)).
Hernandez, the Fourth District Court succinctly
explained the two requirements that a plaintiff must meet