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Florida Statute 49.08 | Lawyer Caselaw & Research

F.S. 49.08 Case Law from Google Scholar
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The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)

Title VI
CIVIL PRACTICE AND PROCEDURE

Chapter 49
CONSTRUCTIVE SERVICE OF PROCESS

View Entire Chapter

F.S. 49.08

49.08 Notice of action, form.—On filing the sworn statement, and otherwise complying with the foregoing requirements, the plaintiff is entitled to have issued by the clerk or judge, not later than 60 days after filing the sworn statement, a notice of action which notice shall set forth:

(1) The names of the known natural defendants; the names, status and description of the corporate defendants; a description of the unknown defendants who claim by, through, under or against a known party which may be described as “all parties claiming interests by, through, under or against (name of known party)” and a description of all unknown defendants which may be described as “all parties having or claiming to have any right, title or interest in the property herein described”;

(2) The nature of the action or proceeding in short and simple terms (but neglect to do so is not jurisdictional);

(3) The name of the court in which the action or proceeding was instituted and an abbreviated title of the case;

(4) The description of real property, if any, proceeded against.

History.—s. 8, ch. 20452, 1941; s. 3, ch. 28301, 1953; s. 2, ch. 29737, 1955; s. 5, ch. 67-254.

Note.—Former s. 48.08.

F.S. 49.08 on Google Scholar

F.S. 49.08 on Casetext

Amendments to 49.08

Arrestable Offenses / Crimes under Fla. Stat. 49.08

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 49.08.

Annotations, Discussions, Cases:

10 Cases from Casetext:Date Descending

U.S. Supreme Court

11th Cir. - Ct. App.11th Cir. - MD FL11th Cir. - ND FL11th Cir. - SD FLFed. Reg.Secondary Sources - All

Contreras v. Contreras
336 So. 3d 772 (Fla. Dist. Ct. App. 2021) Cited 2 times
Under well-settled Florida law, property rights cannot be adjudicated in dissolution proceedings "where service is by publication, except to the extent that the court obtains in rem jurisdiction over particular real property described in the notice of action." 26 Fla. Jur. 2d Family Law § 1073. To acquire such jurisdiction in the absence of personal service, the property "must be specifically described in the petition and notice of constructive service." Steffens v. Steffens, 593 So. 2d 1156, 1158 (Fla. 2d DCA 1992) ; see also § 49.08, Fla. Stat. (2021) ("[A] notice of action ... shall set forth: ... The description of real property, if any, proceeded against.").
PAGE 773
Sunscreen Mist Holdings, LLC v. SnappyScreen, Inc.
Case No: 2:17-cv-132-FtM-99MRM (M.D. Fla. Nov. 14, 2017)
Motion to dismiss
Likewise, Plaintiff again argues that it should be allowed to serve Defendant by publication. (Compare Doc. 15 at 5-6, with Doc. 21 at 3-4). On this point, the Court previously informed Plaintiff in the August 17, 2017 Order that it had not even minimally complied with the Florida statutes allowing service by publication. (Doc. 20 at 7 (citing Fla. Stat. § 49.011 et seq.)). Despite this Order, Plaintiff has again failed to file the materials necessary for the Court to allow service by publication. (See Doc. 21). As the Court stated previously, the Florida statutes governing service of process "are strictly construed." Estela v. Cavalcanti, 76 So. 3d 1054, 1055 (Fla. Dist. Ct. App. 2011); see also Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225, 1227 (Fla. 1986) (per curiam); Sunblest Prods., Inc. v. Vroom Enters., Inc., 508 So. 2d 770, 771 (Fla. Dist. Ct. App. 1987) ("The constructive service statute is strictly construed against the party who seeks to obtain service of process under it.")). As before, Plaintiff still has not provided a sworn statement as prescribed by Fla. Stat. § 49.051. Moreover, Plaintiff has not provided a notice of action as required by Fla…
Barnsdale Holdings, LLC v. PHH Mortgage Corp.
170 So. 3d 863 (Fla. Dist. Ct. App. 2015) Cited 1 times
Barnsdale Holdings, LLC, is a non-party that acquired an interest to the subject property after a lis pendens was recorded in the underlying suit. The law is well settled that a person in Barnsdale Holdings' position is a “stranger to the record” and must file a motion to intervene within 30 days of the lis pendens recording or be barred. See Portfolio Invs. Corp. v. Deutsche Bank Nat'l Trust Co., 81 So.3d 534, 536 (Fla. 3d DCA 2012) ; Barnett v. Barnett, 705 So.2d 63, 64 (Fla. 4th DCA 1997) (holding that a bank had no standing to appeal since it failed to intervene and was a non-party in the proceeding below); see also § 48.23(1)(d), Fla. Stat. (2014). Intervention was Barnsdale Holdings' only available avenue of lawful entry into this case, yet it did not timely pursue this path. Unable to pursue this avenue, counsel for Barnsdale Holdings argued that Barnsdale Holdings is an “unknown defendant” named in the complaint. This argument is contradicted by the plain language of section 49.08 of the Florida Statutes, which defines and limits “unknown defendants” to “parties having or claiming to have any right, title or interest in the property herein described.” (emphasis…
Redfield v. Pinecrest
990 So. 2d 1135 (Fla. Dist. Ct. App. 2008) Cited 10 times
§ 49.051 (emphasis added). The service by publication statute further states that upon filing the sworn statement and otherwise complying with the statutory requirements, "the clerk or judge . . . shall" issue a notice of action, which is then published in such newspapers as are permitted by law. § 49.08, Fla. Stat. (2006); see also §§ 49.09—.10, Fla. Stat. (2006).
PAGE 1137
Martin v. Hacsi
909 So. 2d 935 (Fla. Dist. Ct. App. 2005) Cited 4 times
Motion to dismiss
Section 49.071, Florida Statutes, "Sworn statement, unknown parties as defendants," and section 49.08, Florida Statutes, "Notice of action, form," provide for constructive service of process on unknown defendants. These statutes allow for suit against unnamed defendants contingent upon a plaintiff making a diligent search and inquiry as to the proper party. Accordingly, the absence of a known personal representative was no excuse for not filing a timely motion to substitute. Martin, however, did not even inquire within the 90 days as to whether a personal representative had been appointed. Inactivity is not excusable neglect. See, e.g., Kash N' Karry Food Stores, Inc. v. Smart, 814 So.2d 530 (Fla. 2d DCA 2002).
PAGE 937
Amendments to the Florida Rules of Civil Procedure
773 So. 2d 1098 (Fla. 2000) Cited 23 times
Motion to dismiss
7 more...
NOTE: This form must be modified to name the other defendants when there are multiple defendants and all are not served under the same notice. See section 49.08(1), Florida Statutes (1979).
PAGE 1136
In re Family Law Rules of Procedure
663 So. 2d 1049 (Fla. 1995) Cited 23 times
Motion to dismiss
8 more...
FORM 1.919. NOTICE OF ACTION; CONSTRUCTIVE SERVICE — NO PROPERTY "dissolution of marriage" or NOTE: 49.08 FORM 1.943. DISSOLUTION OF MARRIAGE FORM 1.975. FINANCIAL STATEMENT FOR DISSOLUTION OF MARRIAGE (DIVORCE)
In re Amendments to the Florida Rules of Civil Procedure
604 So. 2d 1110 (Fla. 1992) Cited 23 times
Motion for summary judgment
Motion to dismiss
14 more...
SERVICE : — NO PROPERTY : : a the the NOTE: section 49.08 FORM 1.920 . NOTICE OF ACTION; CONSTRUCTIVE SERVICE — PROPERTY : : the the NOTE: section 49.08 FORM 1.921 . NOTICE OF PRODUCTION FROM NON-PARTY NOTICE
In Interest of D.P
595 So. 2d 62 (Fla. Dist. Ct. App. 1992) Cited 5 times
On December 3, 1991, this court issued an opinion reversing the trial court's order terminating parental rights of Barbara and Clarence Fitts with regard to their minor children. We remanded for the parents to be given a second opportunity to appear at a termination hearing, in compliance with the requirements for notice of hearings in § 39.462(1), Florida Statutes (1989), and for service of process by publication in § 49.08, § 49.09, and § 49.10, Fla. Stat.
PAGE 64
Montano v. Montano
520 So. 2d 52 (Fla. Dist. Ct. App. 1988) Cited 12 times
There is merit, however, in the former husband's second contention that the trial court was without jurisdiction to make a disposition of real property. Because the wife was unable to obtain personal service of process on her husband, constructive service was made by publication. Although her petition for dissolution contained a description of the real property located in Dade and Broward Counties owned by the appellant, the notice of action for constructive service failed to describe the property. For failure of the published notice to describe the real property as required by section 49.08(4), Florida Statutes (1985), the trial court was without in rem jurisdiction to adjudicate the parties' rights in the realty. Davis v. Dieujuste, 496 So.2d 806 (Fla. 1986); Williamson v. Williamson, 478 So.2d 850 (Fla. 3d DCA 1985); Hennig v. Hennig, 162 So.2d 288 (Fla. 3d DCA), cert. denied, 166 So.2d 754 (Fla. 1964); Webb v. Webb, 156 So.2d 698 (Fla. 3d DCA 1963).
PAGE 53
Cases from cite.case.law:
BARNSDALE HOLDINGS, LLC, v. PHH MORTGAGE CORPORATION,, 170 So. 3d 863 (Fla. Dist. Ct. App. 2015)

. . . This argument is contradicted by the plain language of section 49.08 of the Florida Statutes, which defines . . .
UNITED STATES v. KEY, II,, 599 F.3d 469 (5th Cir. 2010)

. . . opinion, I find myself in fundamental disagreement with their resolution of whether Texas Penal Code § 49.08 . . . Penal Code Ann. § 49.08(a). . . . Penal Code Ann. §§ 12.33(a), 49.08(b); 18 U.S.C. § 1112(b). . . . and territorial jurisdiction of the United States), 18 U.S.C. § 13 (the ACA), and Texas Penal Code § 49.08 . . . Penal Code § 49.08 (“Intoxication Manslaughter”), assimilated through the Assimilative Crimes Act, 18 . . . Penal Code § 49.08. This is essentially a strict liability offense. . . .
UNITED STATES v. GOMEZ- LEON,, 545 F.3d 777 (9th Cir. 2008)

. . . . § 49.08 (offense called "intoxication manslaughter" and requires no culpable mental state if driver . . .
REDFIELD INVESTMENTS, A. V. V. a v. VILLAGE OF PINECREST, a, 990 So. 2d 1135 (Fla. Dist. Ct. App. 2008)

. . . . § 49.08, Fla. Stat. (2006); see also §§ 49.09-.10, Fla. Stat. (2006). . . .
UNITED STATES v. IOVINO a k a, 405 F. Supp. 2d 771 (S.D. Tex. 2005)

. . . He pleaded guilty to the second degree felony of Intoxication Manslaughter, an offense found in § 49.08 . . .
MARTIN, v. HACSI,, 909 So. 2d 935 (Fla. Dist. Ct. App. 2005)

. . . Section 49.071, Florida Statutes, “Sworn statement, unknown parties as defendants,” and section 49.08 . . .
UNITED STATES v. ALTIERI,, 275 F. Supp. 2d 10 (D. Me. 2003)

. . . adjudication unless the defendant is charged with an offense: (1) under Section 49.04, 49.05, 49.06, 49.07, 49.08 . . . unless: (1) the defendant is charged with an offense: (A) under Section 49.04, 49.05, 49.06, 49.07, 49.08 . . .
UNITED STATES, v. B. CARSON, Jr. U. S., 57 M.J. 410 (C.A.A.F. 2002)

. . . Singer, Sutherland Statutory Construction § 49.08 (6th ed.2000)(a statute may be interpreted in accordance . . .
AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE, 773 So. 2d 1098 (Fla. 2000)

. . . See section 49.08(1), Florida Statutes (1979). FORM 1.920. . . . See section 49.08(1), Florida Statutes (1979). FORM 1.921. . . .
UNITED STATES v. C. SMITH,, 103 F.3d 600 (7th Cir. 1996)

. . . the pattern jury instruction from Edward J, Devitt et al., Federal Jury Practice and Instructions § 49.08 . . .
In FAMILY LAW RULES OF PROCEDURE, 663 So. 2d 1049 (Fla. 1995)

. . . See section 49.08(1), Florida Statutes (1979). FORM 1.943. . . .
In AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE, 604 So. 2d 1110 (Fla. 1992)

. . . See section 49.08(1), Florida Statutes (1979). FORM 1.920. . . . See section 49.08(1), Florida Statutes (1979). FORM 1.921. . . .
In D. P. a k a D. B. A. F. A. F., 595 So. 2d 62 (Fla. Dist. Ct. App. 1991)

. . . supplied) The law for service of process by publication set out in Chapter 49 provides, in section 49.08 . . . of hearings in § 39.462(1), Florida Statutes (1989), and for service of process by publication in § 49.08 . . .
BROWN, By v. BOARD OF EDUCATION OF TOPEKA, SHAWNEE COUNTY, KANSAS,, 892 F.2d 851 (10th Cir. 1989)

. . . The schools and minority percentages were: Monroe (73.98%), Lafayette (61.22%), Lowman Hill (49.08), . . .
MONTANO, v. MONTANO,, 520 So. 2d 52 (Fla. Dist. Ct. App. 1988)

. . . For failure of the published notice to describe the real property as required by section 49.08(4), Florida . . .
DAVIS, v. DIEUJUSTE,, 496 So. 2d 806 (Fla. 1986)

. . . and that the notice of action made no mention of the real property at issue as required by section 49.08 . . . obtain in rem jurisdiction to distribute real property located within the state pursuant to section 49.08 . . . record is devoid of any information concerning the type of service had in the dissolution action. . § 49.08 . . .
WILLIAMSON, v. WILLIAMSON,, 478 So. 2d 850 (Fla. Dist. Ct. App. 1985)

. . . cause was defective in that it failed to describe the property proceeded against as required by section 49.08 . . .
WHIGHAM, v. WHIGHAM,, 464 So. 2d 674 (Fla. Dist. Ct. App. 1985)

. . . service of process was obtained by publication but the published notice of action required by section 49.08 . . . did not contain a description of the property sought to be proceeded against as required by section 49.08 . . .
C. MOUZON, Jr. v. L. MOUZON,, 458 So. 2d 381 (Fla. Dist. Ct. App. 1984)

. . . UCCJA exclusive except in cases of personal service of process. .See §§ 49.021(1); 49.031; 49.041; 49.08 . . .
BURTON, v. BURTON,, 448 So. 2d 1229 (Fla. Dist. Ct. App. 1984)

. . . appellant’s equitable claim against it, was described in the petition for dissolution, see section 49.08 . . .
THE FLORIDA BAR. In RULES OF CIVIL PROCEDURE, 391 So. 2d 165 (Fla. 1980)

. . . See § 49.08(1), Florida Statutes (1979). . . . See § 49.08(1), Florida Statutes (1979). . . .
CRANE CO. v. AMERICAN STANDARD, INC. Co., 88 F.R.D. 199 (S.D.N.Y. 1980)

. . . day, Standard purchased 82,400 shares of Air Brake stock on the open market at an average price of $49.08 . . .
CRANE COMPANY, v. AMERICAN STANDARD, INC. Co., 603 F.2d 244 (2d Cir. 1979)

. . . shares on the open market in cash transactions at increasing prices up to $50, with an average price of $49.08 . . .
CRANE CO. v. AMERICAN STANDARD, INC. Co., 439 F. Supp. 945 (S.D.N.Y. 1977)

. . . On that day, Standard purchased 82,400 shares on the market for cash at an average price of $49.08 while . . .
LAHR, v. O. LAHR,, 337 So. 2d 837 (Fla. Dist. Ct. App. 1976)

. . . Section 49.08(4) of the Florida Statutes requires that the notice of publication describe the realty . . .
LEAGUE OF UNITED LATIN AMERICAN CITIZENS v. CITY OF SANTA ANA, a, 410 F. Supp. 873 (C.D. Cal. 1976)

. . . Mean 1972 Short Form Test 76.10 66.15 SRA Pictorial 58.98 57.18 1973 Form 45 49.90 38.64 1974 Form 45 49.08 . . .
CRANE CO. v. AMERICAN STANDARD, INC. AMERICAN STANDARD, INC. v. CRANE CO. AMERICAN STANDARD, INC. v. J. WARD, Co., 490 F.2d 332 (2d Cir. 1973)

. . . were a series of open market cash purchases of 170,200 shares of Air Brake at an average price of $49.08 . . .
CRANE CO. v. AMERICAN STANDARD, INC., 326 F. Supp. 766 (S.D.N.Y. 1971)

. . . April 19, Standard purchased 170,000. shares of Air Brake on the open market at an average price of $49.08 . . .
M. H. v., 65 Cust. Ct. 434 (Cust. Ct. 1970)

. . . Heading 49.08 of the Brussels Nomenclature covers “Transfers (Decalcomanias) ”, and includes transfers . . . Heading 49.08 provides in part: “Transfers or decalcomanias consist of pictures, designs or lettering . . . It may nevertheless be observed that heading 49.08 of the Brussels Nomenclature requires that “the coating . . .
CRANE COMPANY, v. WESTINGHOUSE AIR BRAKE COMPANY, A. J. Jr. L. A. G. A. E. V. B. CRANE COMPANY, v. AMERICAN STANDARD, INC. Co., 419 F.2d 787 (2d Cir. 1969)

. . . ranging in size from 100 to 9700 shares, a total of 170,200 Air Brake shares, at an average price of $49.08 . . . 120.000 shares at a price of just above $44%, and purchased 170,000 shares at an average price of $49.08 . . .
In FLORIDA RULES OF CIVIL PROCEDURE, 211 So. 2d 174 (Fla. 1968)

. . . See 49.08(1) Florida Statutes, F.S.A. FORM 1.920. NOTICE OF ACTION CONSTRUCTIVE SERVICE -PROPERTY. . . . See 49.08(1) Florida Statutes, F.S.A. FORM 1.931. . . .
BANK OF KIMBALL, a v. UNITED STATES, 200 F. Supp. 638 (D.S.D. 1962)

. . . same seven parties executed and filed a partnership “Fictitious Name Certificate” as required by SDC 49.08 . . .
C. CRESSWELL, v. UNITED STATES, 173 F. Supp. 805 (Ct. Cl. 1959)

. . . cartage, June 1954 storage charges.................. 322.15 July 1954 storage and sampling............. 49.08 . . .
ROSS v. UNITED STATES, 173 F. Supp. 793 (Ct. Cl. 1959)

. . . book value of the Riggs Bank was determined to be $392.89 a share and that of the Trust Company to be $49.08 . . .
TENNEY ROSS v. THE UNITED STATES, 146 Ct. Cl. 223 (Ct. Cl. 1959)

. . . value of the Riggs Bank- was determined to be $392.89 a share and that of the Trust Company to be $49.08 . . . to be $392.89 per share and the adjusted book value of the Trust Company stock was determined to be $49.08 . . . steps taken were as follows: (a) They took the adjusted book value of the Trust Company stock 'at $49.08 . . .
GAY v. BLOCKER, 73 So. 2d 855 (Fla. 1954)

. . . age sixty, as' a pension or retirement pay, the Comptroller held that such monthly amount would be $49.08 . . . Nobody questions here the accuracy of the percentage figure of 49.08 (calculated under the terms of the . . . issue boils down to the question of whether the formula of 'the appellant, viz.: ' 1/120 of (X + Z> x 49.08 . . . ■ or the. formula of the appellee, viz.: 1/120 of (X + Y +' Z) x 49.08 shall be used in calculating . . .