I really tried to find him, I swear!

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 22

CASES FROM THE WEEK OF JUNE 6, 2025

TRIAL COURT ERRED BY ALLOWING PLAINTIFFS TO SERVE DEFENDANT THROUGH SECRETARY OF STATE AND DENYING DEFENDANT’S MOTION TO QUASH SERVICE — PLAINTIFFS FAILED TO EXERCISE DUE DILIGENCE IN THEIR ATTEMPTS TO PERSONALLY SERVE THE DEFENDANT WHEN PLAINTIFFS ONLY ATTEMPTED SERVICE TWICE

Rebalko v. Atallah, 50 Fla. L. Weekly D1183 (Fla. 4th DCA May 28, 2025):

The plaintiffs filed their action on October 30, 2023, and the summons was dated November 6, 2023. The summons provided a Pensacola Beach address for the defendant. The plaintiffs filed a verified return of non-service on February 29, 2024, stating that the defendant could not be served at that address. The return of non-service detailed two attempts at service made in December three hours apart.

The return of non-service detailed that the process server had received a phone call from the defendant who stated that he was in South Florida until around January 20^th and advised that he would be back in town at that time and could be served.

The defendant subsequently advised that his return was delayed for at least another week. In moving for an extension of time to serve the defendant, the plaintiff stated that the defendant had two known addresses, and the plaintiffs were attempting service at the second address. The record did not indicate that plaintiffs ever attempted service at the second address in Fort Lauderdale.

The plaintiffs ultimately claimed that the defendant was concealing his whereabouts and filed a motion seeking authorization to serve the defendant through the Secretary of State. The plaintiffs’ Declaration of Compliance claimed that prior to resorting to substituted service, they had conducted background checks, received all available records and public records (property appraisers, Google,  and other related search engines), and did not know of a better address or contact information for the defendant.

The trial court granted the plaintiffs’ motion, finding that the defendant was residing in Florida, but evading service and concealing his whereabouts. The trial court subsequently found that the defendant was properly served through the Secretary of State and ordered a response to the complaint by June 14, 2024.

On that date, instead of filing a response to the complaint, the defendant filed a motion to quash service and to dismiss the action for failure to acquire personal jurisdiction over him. After a brief non-evidentiary hearing, the trial court denied the motion without elaborating on the reasons why.

On appeal, the defendant claimed that the plaintiffs failed to exercise due diligence in personally serving him. The plaintiffs had attempted service only twice at the Pensacola address on consecutive days, and during the holiday season when travel is not unusual. The appellate court said that two mere attempts at service do not constitute due diligence under Florida law §48.161(1)(c).

Additionally, although the process server had spoken with the defendant on the phone and was advised he was in South Florida, no attempt was ever made to serve the defendant at his Fort Lauderdale address, failing to follow up on an obvious lead.

The court observed that a common theme in cases holding that plaintiff failed to exercise due diligence is when the plaintiff fails to follow an obvious lead.

Accordingly, because the plaintiffs failed to exercise due diligence in personally serving the defendant, substituted service was improper necessitating reversal.

TRIAL COURT ERRED BY DENYING EMPLOYER’S MOTION FOR DIRECTED VERDICT ON CLAIM THAT EMPLOYER WAS VICARIOUSLY LIABLE AND NEGLIGENT IN ITS HIRING AND SUPERVISION OF EMPLOYEE — EMPLOYER COULD NOT BE VICARIOUSLY LIABLE FOR THE PLAINTIFF’S INJURIES WHERE THE JURY SPECIFICALLY FOUND THAT THE EMPLOYEE HIMSELF WAS NOT NEGLIGENT

Gabor v. Remington Lodging and Hospitality LLC, 50 Fla. L. Weekly D1189 (Fla. 5th DCA May 30, 2025):

The plaintiff was a guest at the hotel owned by the defendant. The co-defendant was employed by the hotel as a maintenance worker. A physical altercation occurred between the plaintiff and the employee on hotel property that resulted in the plaintiff being injured.

The plaintiff’s complaint sought damages for injuries stating causes of action for: (1) negligence of the employee; (2) vicarious liability of the hotel resulting from the alleged negligence of its employee; and (3) the hotel’s negligent training and negligent supervision of its agents and/or employees. The parties stipulated that all actions done by the employee were done within the course and scope of his employment with the hotel.

The jury found there was no negligence on the part of the employee that was a legal cause of damage to the plaintiff. It also found that both the hotel and the plaintiff caused the plaintiff’s damages. The jury assessed 80% of the fault against the plaintiff, and 20% against the hotel. The verdict form did not ask the jury to specifically identify under which theory of negligence the hotel was found liable.

Prior to the case being submitted to the jury, the hotel moved for a directed verdict on the plaintiff’s claims for negligent training and negligent supervision. The hotel argued that while it would be vicariously liable for the actions of its employees done within the scope of their employment, it could not, as a matter of law, have been separately liable for damages under the plaintiff’s direct claims against it for negligent supervision and training, because the undisputed evidence was that the employees had not acted outside the course and scope of their employment (the only time those claims are viable). The trial court denied the hotel’s motion for directed verdict.

The court found that the jury’s finding that the hotel was 20% negligent was not supportable under the plaintiff’s specifically pleaded cause of action. For vicarious liability under that theory, an employer is liable for the negligence of their employees committed within the course and scope of their employment. Here, because the employee was specifically found by the jury not to be negligent, the hotel employer could not be vicariously liable to the plaintiff for his damages.

Actions for negligent training and supervision are based on an employee’s actions having been performed outside the course and scope of employment. Here, the plaintiff presented no evidence that any actions taken by either the hotel’s general manager or its front desk manager were done outside the course and scope of their respective employment.

While an action can be brought directly against an employee’s supervisor for his or her negligent supervision or negligent training of a subordinate employee even when the subordinate employee’s actions were within the scope of employment, the plaintiff never sued the hotel’s acting general manager or the front desk manager in their individual capacities.

Having concluded that the trial court erred in failing to grant the hotel’s motion for directed verdict, the court reversed the final judgment entered for the plaintiff, entering judgment for the defendant instead.