Preview
Filing # 127084303 E-Filed 05/19/2021 09:10:23 AM
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO COUNTY, FLORIDA
CICUIT CIVIL
CYNTHIA WATTY,
Plaintiff,
vs. CASE NO.: 2021-CA-000065-WS
JAMES LOUIS GRACE, an Individual, ELITE
EXTERIOR RESTORATION, LLC, a Florida Limited
Liability Corporation, and JUSTIN L. MURRAY,
Individually and in his official capacity as owner of
Elite Exterior Restoration, LLC
Defendants.
/
DEFENDANT JAMES LOUIS GRACE’S MOTION TO QUASH SERVICE OF
PROCESS AND MEMORANDUM OF LAW
COMES NOW, the Defendant, JAMES LOUIS GRACE, through special
appearance of undersigned counsel, and file this, his Motion to Quash Service of
Process and Memorandum of Law, and as grounds therefore, states as follows:
1 In the automobile negligence action in which Plaintiff claims
permanent personal injuries, Plaintiff alleges in her Complaint that Defendant, James
Louis Grace, was a resident of Pinellas County and/or the state of Florida and has
since become a non-resident or is otherwise, actively concealing his whereabouts.
Presumably based upon the allegation that Defendant, James Louis Grace, was
concealing his whereabouts, Plaintiff attempted substitute service pursuant to
Florida Statute § 48.161. Plaintiff then served her Complaint on Defendant, James
Louis Grace, through the Florida Secretary of State.
2 Defendant James Louis Grace moves to quash Plaintiff’s purported
service of process on the Florida Secretary of State as Plaintiff has failed to strictly
comply with the Florida Substitute Service Requirements under § 48.161.
Electronically Filed Pasco Case # 2021CA000065CAAXWS 05/19/2021 09:10:23 AM
3 Plaintiff has not filed anything with the Court to indicate that she
exercised due diligence in attempting to locate Defendant James Louis Grace.
Plaintiff did file an Affidavit of Non-Service in which it was shown that her process
server only attempted to serve Defendant twice at the same address. There is no
indication from anything filed with this Court that Plaintiff’s process server
attempted to due a locate or search of the Defendant to obtain other addresses or that
Plaintiff sought to discover Defendant’s relatives to see if perhaps he resided at
another address. Thus, this service is defective. See § 48.161; Wiggan v. Bamford,
562 So. 2d 329 (Fla. 4" DCA 1990); Chapman v. Sheffield, 750 So. 2d 140 (Fla. 1
DCA 2000).
4 If due diligent efforts were made an alleged, with proof of same filed
with the Court, Plaintiff could then attempt to effect substitute service of process
pursuant to § 48.161. Plaintiff's reported service of process is invalid and not in
compliance with Florida Law. § 48.161 sets for the specific manner in which
substituted service must be effected, as follows:
“When authorized by law, substituted service of process on a non-
resident or a person who conceals his or her whereabouts by serving
a public officer designated by law...notice of service and a copy of
the process shall be sent forth with by registered or certified mail by
the plaintiff or his or her attorney to the defendant, and the
defendant’s return receipt and the affidavit of the plaintiffof his or
her attorney of compliance shall be filed on or before the return day
of the process or within such time as the court allows, or the notice
and copy shall be served on the defendant found within the state by
an officer authorized to serve legal process, or found without the
State, by a sheriff or deputy sheriff of any county of the State...”
5 Plaintiff failed to strictly comply with the paragraph. Plaintiff failed to
strictly comply with the procedure outlined in § 48.161 in that Plaintiff failed to mail
a copy of the Summons and Complaint to Defendant James Louise Grace by
registered or certified mail; failed to file with the Court proof of such service; and
failed to timely file and Affidavit showing compliance with the applicable Statute.
See Monaco v. Nealon, 810 So. 2d 1084 (Fla. 4 DCA 2002); Chapman v. Sheffield,
750 So. 2d 140 (Fla. 1‘ DCA 2000); and § 48.161
6 Perfection of substituted service of process requires strict compliance
with statutory prerequisites because such service is an exception to personal service.
See Wyatt v. Hase, 649 So. 2d 985 (Fla. 4" DCA 1995); see also Cherry v.
Haeffernan, (132 Fla. 386, 1938).
7
Defendant James Louis Grace requests the Court grant his Motion and
quash any purported service of process. Further, if Plaintiff has sent discovery to this
Defendant utilizing the same defective method of service, Defendant requests that
he be allowed the normal time for response to discovery, which should begin once
service is properly perfected.
WHEREFORE, for the foregoing reasons and for those that may be presented
at a hearing on this Motion, Defendant, JAMES LOUIS GRACE, respectfully requests
this honorable Court grant his Motion to Quash Service of Process and to stay the
time to respond to any discovery directed to Defendant James Louis Grace until such
time as process is perfected, and to award any other relief deemed just herein.
Certificate of Service on following page
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was provided via the
Florida E-Filing Portal to Benjamin Thomas, Esquire, MARTINEZ DENBO, LLC,
2935 First Avenue North, St. Petersburg, Florida 33713, servicesstp@civillit.com
Attorney for Elite Exterior and Murray, and Ian M. Thomas, Esquire, MCPHERSON
THOMAS, 5723 Main Street, New Port Richey, Florida 34652, ream@suncoastlaw.com
Attorney for Plaintiff, this 19" day of May 2021.
/s/ Nina M. Hanson
Nina Hanson, Esquire
Florida Bar No: 998893
Adam C, Shelton, Esquire
Florida Bar No: 0572578
SHELTON | MCKEAN
9700 9" Street North, Suite 400
St. Petersburg, FL 33702
Phone No.: (727) 316-6330
Fax No.: (727) 316-6368
service-ashelton@sheltonmckean.com
service-nhanson@sheltonmckean.com
joconnor@sheltonmckean.com
Attorney for Defendant Grace
CASE NO.: 2021-CA-000065-WS
Preview
Filing # 127084303 E-Filed 05/19/2021 09:10:23 AM IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PASCO COUNTY, FLORIDA CICUIT CIVIL CYNTHIA WATTY, Plaintiff, vs. CASE NO.: 2021-CA-000065-WS JAMES LOUIS GRACE, an Individual, ELITE EXTERIOR RESTORATION, LLC, a Florida Limited Liability Corporation, and JUSTIN L. MURRAY, Individually and in his official capacity as owner of Elite Exterior Restoration, LLC Defendants. / DEFENDANT JAMES LOUIS GRACE’S MOTION TO QUASH SERVICE OF PROCESS AND MEMORANDUM OF LAW COMES NOW, the Defendant, JAMES LOUIS GRACE, through special appearance of undersigned counsel, and file this, his Motion to Quash Service of Process and Memorandum of Law, and as grounds therefore, states as follows: 1 In the automobile negligence action in which Plaintiff claims permanent personal injuries, Plaintiff alleges in her Complaint that Defendant, James Louis Grace, was a resident of Pinellas County and/or the state of Florida and has since become a non-resident or is otherwise, actively concealing his whereabouts. Presumably based upon the allegation that Defendant, James Louis Grace, was concealing his whereabouts, Plaintiff attempted substitute service pursuant to Florida Statute § 48.161. Plaintiff then served her Complaint on Defendant, James Louis Grace, through the Florida Secretary of State. 2 Defendant James Louis Grace moves to quash Plaintiff’s purported service of process on the Florida Secretary of State as Plaintiff has failed to strictly comply with the Florida Substitute Service Requirements under § 48.161. Electronically Filed Pasco Case # 2021CA000065CAAXWS 05/19/2021 09:10:23 AM 3 Plaintiff has not filed anything with the Court to indicate that she exercised due diligence in attempting to locate Defendant James Louis Grace. Plaintiff did file an Affidavit of Non-Service in which it was shown that her process server only attempted to serve Defendant twice at the same address. There is no indication from anything filed with this Court that Plaintiff’s process server attempted to due a locate or search of the Defendant to obtain other addresses or that Plaintiff sought to discover Defendant’s relatives to see if perhaps he resided at another address. Thus, this service is defective. See § 48.161; Wiggan v. Bamford, 562 So. 2d 329 (Fla. 4" DCA 1990); Chapman v. Sheffield, 750 So. 2d 140 (Fla. 1 DCA 2000). 4 If due diligent efforts were made an alleged, with proof of same filed with the Court, Plaintiff could then attempt to effect substitute service of process pursuant to § 48.161. Plaintiff's reported service of process is invalid and not in compliance with Florida Law. § 48.161 sets for the specific manner in which substituted service must be effected, as follows: “When authorized by law, substituted service of process on a non- resident or a person who conceals his or her whereabouts by serving a public officer designated by law...notice of service and a copy of the process shall be sent forth with by registered or certified mail by the plaintiff or his or her attorney to the defendant, and the defendant’s return receipt and the affidavit of the plaintiffof his or her attorney of compliance shall be filed on or before the return day of the process or within such time as the court allows, or the notice and copy shall be served on the defendant found within the state by an officer authorized to serve legal process, or found without the State, by a sheriff or deputy sheriff of any county of the State...” 5 Plaintiff failed to strictly comply with the paragraph. Plaintiff failed to strictly comply with the procedure outlined in § 48.161 in that Plaintiff failed to mail a copy of the Summons and Complaint to Defendant James Louise Grace by registered or certified mail; failed to file with the Court proof of such service; and failed to timely file and Affidavit showing compliance with the applicable Statute. See Monaco v. Nealon, 810 So. 2d 1084 (Fla. 4 DCA 2002); Chapman v. Sheffield, 750 So. 2d 140 (Fla. 1‘ DCA 2000); and § 48.161 6 Perfection of substituted service of process requires strict compliance with statutory prerequisites because such service is an exception to personal service. See Wyatt v. Hase, 649 So. 2d 985 (Fla. 4" DCA 1995); see also Cherry v. Haeffernan, (132 Fla. 386, 1938). 7 Defendant James Louis Grace requests the Court grant his Motion and quash any purported service of process. Further, if Plaintiff has sent discovery to this Defendant utilizing the same defective method of service, Defendant requests that he be allowed the normal time for response to discovery, which should begin once service is properly perfected. WHEREFORE, for the foregoing reasons and for those that may be presented at a hearing on this Motion, Defendant, JAMES LOUIS GRACE, respectfully requests this honorable Court grant his Motion to Quash Service of Process and to stay the time to respond to any discovery directed to Defendant James Louis Grace until such time as process is perfected, and to award any other relief deemed just herein. Certificate of Service on following page CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was provided via the Florida E-Filing Portal to Benjamin Thomas, Esquire, MARTINEZ DENBO, LLC, 2935 First Avenue North, St. Petersburg, Florida 33713, servicesstp@civillit.com Attorney for Elite Exterior and Murray, and Ian M. Thomas, Esquire, MCPHERSON THOMAS, 5723 Main Street, New Port Richey, Florida 34652, ream@suncoastlaw.com Attorney for Plaintiff, this 19" day of May 2021. /s/ Nina M. Hanson Nina Hanson, Esquire Florida Bar No: 998893 Adam C, Shelton, Esquire Florida Bar No: 0572578 SHELTON | MCKEAN 9700 9" Street North, Suite 400 St. Petersburg, FL 33702 Phone No.: (727) 316-6330 Fax No.: (727) 316-6368 service-ashelton@sheltonmckean.com service-nhanson@sheltonmckean.com joconnor@sheltonmckean.com Attorney for Defendant Grace CASE NO.: 2021-CA-000065-WS