## Facts

- George J. Gardina and Carol J. Gardina sued Karene E. Aronowitz for personal injuries arising from an automobile accident.
- At the time of the accident, Aronowitz provided Gardina with a Florida address.
- After filing suit, the Gardinas attempted to serve Aronowitz at the Florida address but learned she had moved to Georgia.
- Believing substituted service was authorized, the Gardinas served process on the Florida Secretary of State under Fla. Stat. § 48.161.
- The Gardinas did not mail Aronowitz a contemporaneous certified-mail copy of the summons and complaint as required by § 48.161(1).
- After receiving the Secretary of State’s receipt showing service, the Gardinas sent Aronowitz a copy of that receipt.
- Aronowitz, through counsel, sought additional time to respond and later filed a motion to quash service, arguing substituted service was improper and/or inadequately pleaded.
- The trial court did not hold a hearing on the motion to quash and did not rule on it before dismissal.
- Several weeks later, after the 120-day period in Fla. R. Civ. P. 1.070(j) had expired, the Gardinas personally served Aronowitz in Georgia.
- The Gardinas moved to have the substituted service deemed valid or, alternatively, to have the late personal service treated as timely through a retroactive extension of the service deadline.
- The trial court found the substituted service defective and dismissed the case against Aronowitz for failure to accomplish service within 120 days.

## Issues

1. Whether substituted service on the Florida Secretary of State under Fla. Stat. § 48.161 could support the action despite the plaintiff’s failure to mail a contemporaneous certified-mail copy of the summons and complaint to the defendant.
2. Whether the trial court erred under Fla. R. Civ. P. 1.070(j) by dismissing for untimely service, rather than allowing the case to proceed based on the service efforts made and the defendant’s actual notice (including by granting an extension).

## Decision

- The Fourth District Court of Appeal reversed the dismissal and remanded for further proceedings.
- The court reasoned that, with a motion to quash pending but not heard or ruled on, the substituted service remained operative for purposes of the case until the court determined otherwise.
- The court also concluded that dismissal under Rule 1.070(j) was not warranted on this record because the plaintiffs attempted service in good faith, the defendant had actual notice and participated through counsel, and no prejudice from the timing was shown.
- On remand, the case was to proceed against Aronowitz rather than being terminated on the basis of the service deadline.

## Legal Principles

- Fla. R. Civ. P. 1.070(j)’s 120-day service requirement is intended to move cases forward; it should not be applied as a purely technical basis for ending a case when the plaintiff has acted in good faith and the defendant has notice.
- A trial court has discretion to extend the time for service when circumstances justify it; dismissal is a severe remedy that should not be used where an extension would fairly address the problem.
- A defendant’s actual notice of the lawsuit and early participation through counsel weigh against dismissal for service defects, especially absent a showing of prejudice caused by the delay.
- When a defendant challenges service by motion to quash, but the court does not hear or rule on that challenge, the prior service is treated as effective unless and until it is set aside.
- Noncompliance with procedural steps in substituted service (such as failing to mail the contemporaneous certified-mail copy) may be addressed without dismissal when the defendant nevertheless receives notice and cannot show harm from the defect.

## Conclusion

The Fourth District reinstated the claims against Aronowitz because the plaintiffs pursued service after learning the defendant had moved, Aronowitz received notice and responded through counsel, and the trial court should not have dismissed under Rule 1.070(j) without addressing the pending motion to quash and considering an extension or other relief that would allow the case to be decided on the merits.


Gardina v. Aronowitz, 899 So. 2d 1248 (2005)