Summary
holding that because section 48.101 is the specific statute governing process on a dissolved corporation, service must be made on one or more of the directors and may not be made on the registered agent
Summary of this case from Cannella v. Auto-Owners Ins. Co.Opinion
No. 92-04274.
November 10, 1993. Rehearing Denied December 14, 1993.
Appeal from the Circuit Court, Pinellas County, William L. Walker, J.
Thomas E. Reynolds of the Law Offices of Edward D. Foreman, P.A., St. Petersburg, for appellant/cross appellee.
Mark P. Buell and Raymond T. Elligett, Jr. of Schropp, Buell Elligett, P.A., Tampa, for appellees/cross appellants.
Gay Stoeffler appeals a nonfinal order quashing service on Paul Castagliola and dismissing him as a defendant in a legal malpractice case. The codefendant, Riden Associates Services Corporation (Riden I), a dissolved corporation, appeals the portion of the nonfinal order denying the motion of Riden I to quash service of process on Riden I. We affirm the trial court's order which quashed service on Castagliola; however, we reverse the dismissal of Castagliola. Further, we conclude that the trial court erred by not quashing the service on Riden I and, accordingly, remand for further proceedings.
The record supports that Stoeffler failed to serve both Castagliola and Riden I properly. At the time of the attempted service of process, Castagliola, a former employee of Riden I, was employed by Riden, Earle, Kiefner, P.A., (Riden II), a different corporation. Stoeffler attempted to serve both Riden I and Castagliola by serving the business manager at the offices of Riden II. First, service on the business manager does not satisfy the requirements for obtaining personal service on an individual pursuant to section 48.031, Florida Statutes (1991). The record does not support that Castagliola waived personal service, that he tried to evade service, nor that he gave anyone authority to accept process for him. See Hauser v. Schiff, 341 So.2d 531 (Fla. 3d DCA 1977). Therefore, the trial court did not err in quashing service of process on Castagliola.
Service of process generally; service of witness subpoenas. —
48.031
As to Stoeffler's attempted service of process on Riden I, section 48.101, Florida Statutes (1991) specifically directs that service of process upon a dissolved corporation "shall" be made upon one or more of the directors as trustees of the dissolved corporation. Stoeffler argues that pursuant to section 607.1405(2)(g) service can be made upon the registered agent of a dissolved corporation because the dissolution does not terminate the authority of the registered agent. Chapter 607 does not address specifically how process should be made on a dissolved corporation; whereas, section 48.101 does provide for that occurrence. Because section 48.101 is the specific statute governing process, it controls the method to be utilized to serve a dissolved corporation. See Palm Harbor Special Fire Control Dist. v. Kelly, 516 So.2d 249, 251 (Fla. 1987). Additionally, in East Auto Supply Company, Inc. v. Anchor Mortgage Services, Inc., 502 So.2d 976 (Fla. 4th DCA 1987), the Fourth District held that it was not error to serve the registered agent of a corporation while it was temporarily dissolved because once reinstated the corporation was deemed to have continued without interruption. It can be inferred that if the corporation had not been reinstated that service would have been invalid. Accordingly, we conclude that the service on Riden I was invalid.
Service on dissolved corporations. —
48.101
Effect of dissolution —
607.1405
Even though service of process against both Castagliola and Riden I was invalid, the action against both should remain pending because service, although invalid, was made within the 120-day limit pursuant to Florida Rule of Civil Procedure 1.070(j). In Payette v. Clark, 559 So.2d 630, 633 (Fla. 2d DCA 1990), this court held that "[w]hen an invalid method of service is used, the proper procedure is to quash the service and permit the action to remain pending." In this case, the first attempt at service was made within the 120-day limit. Accordingly, the trial court erred in dismissing the action against Castagliola.
We affirm the quashing of service on Castagliola and direct the trial court to quash the service on Riden I. Further, we reverse the dismissal of Castagliola and remand this case for further proceedings.
DANAHY, A.C.J., and ALTENBERND, J., concur.