Summary
In Caban v. Skinner, 648 So.2d 251 (Fla. 3d DCA 1994), the third district held that dismissal was improper where service, albeit invalid, was effected within the 120-day period.
Summary of this case from Sneed v. H.B. Daniel Const. Co., Inc.Opinion
No. 93-2960.
December 28, 1994.
Appeal from the Circuit Court, Dade County, Norman Gerstein, J.
Donald S. Rose, Miami, for appellants.
Stephen E. Tunstall, Coral Gables, for appellee.
Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
Samuel and Ruthie Caban appeal an order dismissing a negligence action for failure to serve properly defendant Louis Skinner within the 120-day period after filing of the complaint. The Cabans served process on an employee at Skinner's residence during the 120-day period. Skinner sought dismissal based on invalid service. At the end of the 120-day period Skinner amended the motion seeking dismissal based on the expiration of the service period. Fla.R.Civ.P. 1.070(i). The trial court erred in granting the motion and dismissing the complaint. The trial court may not dismiss the complaint, where, as here, service, albeit invalid service, was effected during the designated time. As the Cabans accurately contend, the proper action is to quash the invalid service. Stoeffler v. Castagliola, 629 So.2d 196, 198 (Fla. 2d DCA 1993), review denied, 639 So.2d 976 (Fla. 1994). See Payette v. Clark, 559 So.2d 630 (Fla. 2d DCA 1990); Baraban v. Sussman, 439 So.2d 1046 (Fla. 4th DCA 1983); Jones v. Denmark, 259 So.2d 198 (Fla. 3d DCA 1972). Accordingly, the order is reversed and the cause remanded for further proceedings.
Reversed and remanded.