The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)
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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.").
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, 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…
§ 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).
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).
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).
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.
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).
. . . This argument is contradicted by the plain language of section 49.08 of the Florida Statutes, which defines . . .
. . . 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. . . .
. . . . § 49.08 (offense called "intoxication manslaughter" and requires no culpable mental state if driver . . .
. . . . § 49.08, Fla. Stat. (2006); see also §§ 49.09-.10, Fla. Stat. (2006). . . .
. . . He pleaded guilty to the second degree felony of Intoxication Manslaughter, an offense found in § 49.08 . . .
. . . Section 49.071, Florida Statutes, “Sworn statement, unknown parties as defendants,” and section 49.08 . . .
. . . 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 . . .
. . . Singer, Sutherland Statutory Construction § 49.08 (6th ed.2000)(a statute may be interpreted in accordance . . .
. . . See section 49.08(1), Florida Statutes (1979). FORM 1.920. . . . See section 49.08(1), Florida Statutes (1979). FORM 1.921. . . .
. . . the pattern jury instruction from Edward J, Devitt et al., Federal Jury Practice and Instructions § 49.08 . . .
. . . See section 49.08(1), Florida Statutes (1979). FORM 1.943. . . .
. . . See section 49.08(1), Florida Statutes (1979). FORM 1.920. . . . See section 49.08(1), Florida Statutes (1979). FORM 1.921. . . .
. . . 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 . . .
. . . The schools and minority percentages were: Monroe (73.98%), Lafayette (61.22%), Lowman Hill (49.08), . . .
. . . For failure of the published notice to describe the real property as required by section 49.08(4), Florida . . .
. . . 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 . . .
. . . cause was defective in that it failed to describe the property proceeded against as required by section 49.08 . . .
. . . 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 . . .
. . . UCCJA exclusive except in cases of personal service of process. .See §§ 49.021(1); 49.031; 49.041; 49.08 . . .
. . . appellant’s equitable claim against it, was described in the petition for dissolution, see section 49.08 . . .
. . . See § 49.08(1), Florida Statutes (1979). . . . See § 49.08(1), Florida Statutes (1979). . . .
. . . day, Standard purchased 82,400 shares of Air Brake stock on the open market at an average price of $49.08 . . .
. . . shares on the open market in cash transactions at increasing prices up to $50, with an average price of $49.08 . . .
. . . On that day, Standard purchased 82,400 shares on the market for cash at an average price of $49.08 while . . .
. . . Section 49.08(4) of the Florida Statutes requires that the notice of publication describe the realty . . .
. . . 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 . . .
. . . were a series of open market cash purchases of 170,200 shares of Air Brake at an average price of $49.08 . . .
. . . April 19, Standard purchased 170,000. shares of Air Brake on the open market at an average price of $49.08 . . .
. . . 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 . . .
. . . 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 . . .
. . . 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. . . .
. . . same seven parties executed and filed a partnership “Fictitious Name Certificate” as required by SDC 49.08 . . .
. . . cartage, June 1954 storage charges.................. 322.15 July 1954 storage and sampling............. 49.08 . . .
. . . book value of the Riggs Bank was determined to be $392.89 a share and that of the Trust Company to be $49.08 . . .
. . . 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 . . .
. . . 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 . . .