## Facts

- On November 1, 2007, Darlene Hannah filed a personal-injury negligence action against Joshua Olivo in Florida.
- On December 27, 2007, Hannah’s process server attempted to serve Olivo in Florida but was unsuccessful; the affidavit/return stated Olivo had moved to Connecticut.
- On January 16, 2008, Olivo moved to dismiss for failure to timely effect service of process, asserting he still lived in Florida and had not moved to Connecticut; he did not provide his current address.
- The trial court denied Olivo’s motion to dismiss.
- On February 12, 2008, Hannah moved for an extension of time to serve Olivo. The trial court granted a 120-day extension, setting a new service deadline of June 30, 2008.
- After continued difficulty locating Olivo, Hannah sought permission to serve Olivo through the Florida Secretary of State, alleging he was evading service. The trial court denied that request.
- Hannah then moved to have Cynthia Roque appointed as a special process server authorized to serve Olivo.
- Roque served Olivo on May 30, 2008, within the extended service period. However, the trial court did not enter the order appointing Roque as a special process server until June 11, 2008.
- Olivo moved to quash the May 30 service as defective because Roque was not yet appointed when she served him.
- Roque served Olivo again on July 1, 2008, after the June 30 extended deadline.
- Olivo moved to dismiss for untimely service. The trial court dismissed the action, reasoning that the May 30 service was invalid and the July 1 service was untimely.
- Hannah appealed the dismissal.

## Issues

1. Did the trial court err by dismissing the action for untimely service when Olivo was served within the court-extended time period, but the service was defective because the server was appointed after service occurred?

## Decision

- The Fifth District Court of Appeal reversed the dismissal and remanded.
- The court held it was error to dismiss where Olivo was served within the time period designated by the trial court, even though the service was defective because the special process server’s appointment order was entered after service.

## Legal Principles

- When a defendant is served within the time period set by the trial court (including an extension), dismissal for failure to timely serve is not warranted merely because the service has a technical defect.
- A defect relating to the process server’s authority (such as service occurring before entry of an appointment order) may render service defective, but it does not necessarily mean service was not timely accomplished.
- Courts should avoid terminating an action based on curable service defects when the defendant was actually served within the time allowed, especially where dismissal would function as a case-ending sanction.

## Conclusion

The Fifth District reversed because Olivo received service within the court-ordered extension period; the problem was the timing of the special process server’s formal appointment, making the service defective but not a basis to dismiss the lawsuit as untimely.


Hannah v. Olivo, 38 So. 3d 815 (2010)