Avriana Gore v. Erica Encarnacion and Todd Wharton

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
AVRIANA JEAN GORE,
Appellant,
v.
ERICA ENCARNACION and TODD WHARTON,
Appellees.
No. 4D2025-0764
[December 10, 2025]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John B. Bowman, Judge; L.T. Case No. CACE23-000006.
Claire Cubbin, Fort Lauderdale, for appellant.
Megan Powell and Hinda Klein of Conroy Simberg, Hollywood, for
appellees.
M AY , J.
The plaintiff appeals a trial court order quashing substitute service of
process and dismissing the complaint without prejudice. 	She argues the
trial court erred in relying on the wrong version of section 48.161 and
dismissing her complaint. 	We agree and reverse.
• 	The Facts
The plaintiff filed a complaint against the defendants after she was rear-
ended by a car owned by Erica Encarnacion, and driven by a male, who
gave his name as Michael Encarnacion. 	The plaintiff successfully served
Erica Encarnacion but when she attempted to serve Michael Encarnacion,
Erica 	claimed 	Michael 	Encarnacion 	did 	not 	exist. 	It 	took 	court
intervention to get Erica to reveal the true name of the driver – Todd
Wharton.
Upon learning this information, the plaintiff amended the complaint
and began her attempts to serve Wharton. The process server was unable
to locate Wharton and filed an affidavit of diligent search. 	Based on the

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inability to locate Wharton, she filed an alias summons on the Secretary
of State. 	The Secretary of State accepted service.
The 	plaintiff 	sent 	the 	amended 	complaint, 	alias 	summons, 	and
acceptance of service from the Secretary of State to Wharton at his last
known address via certified mail. 	The plaintiff then filed an affidavit of
compliance with section 48.161, Florida Statutes (2024). 	(Emphasis
added).
Wharton’s counsel filed a special limited appearance and motion to
quash substitute service of process. 	Wharton argued that after service of
process 	on 	the 	Secretary 	of 	State, 	a 	plaintiff 	must 	meet 	three
requirements: (1) notify the defendant by certified mail that the Secretary
of State has been served, (2) file a return receipt for that certified letter by
the return date of service, and (3) file an affidavit of compliance by the
return date of service. Wharton specifically cited section 48.161, Fla. Stat.
(2022). (Emphasis added). Wharton suggests the plaintiff failed to comply
with these three requirements.1
Following a hearing, the trial court granted Wharton’s motion to quash
and dismissed the complaint with leave to amend.2 	The plaintiff moved
for 	reconsideration, 	which 	the 	trial 	court 	denied. 	From 	the 	order
dismissing the complaint, the plaintiff now appeals.
• 	The Analysis
We have de novo review of an order quashing service of process.
Rebalko v. Atallah, 313 So. 3d 125, 126 (Fla. 4th DCA 2021).
The plaintiff argues the trial court erred by granting Wharton’s motion
to quash because it relied upon the 2022 version of section 48.161, which
was amended effective January 2, 2023. The plaintiff served the Secretary
of State with process on October 25, 2024 – after the statute was amended.
She argues she complied with the requirements of the amended statute.
1 Section 48.161’s 2023 amendment no longer requires an affidavit of compliance
to be filed by the return date of service or to amend the complaint to allege the
defendant is a non-resident of the State of Florida or is concealing himself.
2 No one appeared for the plaintiff at the hearing on the motion to dismiss, and
Wharton’s primary argument was that the plaintiff lacked due diligence in serving
Wharton. 	The 	plaintiff 	moved 	for 	reconsideration 	raising 	the 	arguments
presented in this appeal.

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Wharton now appears to agree the 2024 version of the statute applies
and makes alternative arguments in his brief. He argues the plaintiff failed
to: (1) file the affidavit of compliance within forty days of the date of service
on the Secretary of State; (2) establish due diligence in attempting to serve
Wharton; 	and 	(3) 	serve 	Wharton 	within 	120 	days 	of 	amending 	the
complaint.
The legislative notes for section 48.161’s 2023 amendment provide:
The amendments made to chapter 48, Florida Statutes, by
chapter 2022-190, Laws of Florida, apply to causes of action
that accrued on or after January 2, 2023, and to all causes of
action that accrued before January 2, 2023, for which service
of process was effectuated on or after January 2, 2023.
There can be no doubt the 2024 version of 48.161 applies to this case.
So, did the plaintiff comply with section 48.161’s 2024 version? 	We
think that she did.
o 	Affidavit of Compliance
Section 48.161’s 2024 version requires the affidavit of compliance to be
filed within forty days after the date of service on the Secretary of State or
within such additional time as the court allows. 	Here, the plaintiff’s
affidavit stated that she served the Secretary of State on October 25, 2024.
The plaintiff then filed the affidavit of compliance on December 6, 2024.
While this is technically forty-two days after the date of service, October
25, 2024, fell on a Friday. Computation of the forty days began on Monday
October 28, 2024, pursuant to Florida Rule of General Practice and
Judicial Administration 2.514(a)(1)(A) (“begin counting from the next day
that is not a Saturday, Sunday, or legal holiday”). 	In short, the affidavit
was timely filed.
o 	Due Diligence
Section 48.161(3)(a), Florida Statutes (2024), states:
The affidavit of compliance must set forth the facts that justify
such substituted service and must contain sufficient facts
showing:

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(a) That due diligence was exercised in attempting to locate
and effectuate personal service on the party[.]
In her affidavit, the plaintiff attached the return of non-service documents
and her affidavit of diligent search.
The 	first 	verified 	return 	of 	non-service 	stated 	the 	process 	server
attempted service on seven different dates at three different addresses
between August 13 and September 19, 2024. 	The second return stated
the 	process 	server attempted 	service 	at 	a 	UPS 	business mailbox 	for
Wharton’s alleged business. 	The affidavit of due diligence stated the
process server sent Freedom of Information Act (“FOIA”) requests to all
addresses associated with Wharton without results.
The process server also searched:
• 	the national social security trace,
• 	the national database,
• 	a Florida division of vehicle registration,
• 	the Florida division of driver’s license,
• 	the Florida Division of Corporations,
• 	the Florida Division of Professional Licensing, and
• 	incarceration records of the State of Florida.
The process server inquired of the information operator in appropriate area
codes, made a FOIA request for changes of address, and contacted known
associated persons and neighbors.
Nevertheless, Wharton suggests the plaintiff failed to demonstrate due
diligence 	by 	failing 	to 	follow 	obvious 	leads 	and 	repeatedly 	serving
addresses where the plaintiff knew he did not reside. 	Wharton suggests
the plaintiff failed to subpoena Wharton’s company and failed to ask for
Erica Encarnacion’s pay/tax information after allegedly learning that she
worked for Wharton.
Despite Wharton’s suggestions, we hold the plaintiff exercised due
diligence. 	See Se. & Assocs., Inc. v. Fox Run Homeowners Ass’n, 704 So.
2d 694, 696 (Fla. 4th DCA 1997) (finding that a diligent search was
conducted when the evidence showed “nine attempts at personal service
... contact with the neighbors, [ ] two skip traces, and [a] trip to a retail
establishment where the process server learned that the lessee had moved
out in the middle of the night”); cf. Dubois v. Butler ex rel. Butler, 901 So.
2d 1029, 1030 (Fla. 4th DCA 2005) (finding no diligent search where

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plaintiff attempted to serve only one three year old address and call the
phone directory); Rebalko v. Atallah, 413 So. 3d 170, 173 (Fla. 4th DCA
2025) (finding no diligent search where plaintiffs attempted service only
twice at a Pensacola address, on consecutive days, and during the holiday
season when travel is not unusual).
o 	Compliance with Rule 1.070(j)
Finally, Wharton argues the plaintiff failed to serve him within 120 days
of amending the complaint. 	This issue is reviewed for an abuse of
discretion. See Denose v. Garcia, 388 So. 3d 857, 859 (Fla. 3d DCA 2023).
Florida Rule of Civil Procedure 1.070(j) provides:
If service of the initial process and initial pleading is not made
upon a defendant within 120 days after filing of the initial
pleading directed to that defendant the court, on its own
initiative after notice or on motion, shall direct that service be
effected within a specified time or shall dismiss the action
without prejudice or drop that defendant as a party; provided
that if the plaintiff shows good cause or excusable neglect for
the failure, the court shall extend the time for service for an
appropriate period.
Fla. R. Civ. P. 1.070(j).
If a plaintiff shows good cause or excusable neglect for failure
to make timely service, the court must extend the time for
service and has no discretion to do otherwise. 	However, if
neither good cause nor excusable neglect is shown, the trial
court is no longer required to dismiss without prejudice or
drop the defendant as a party, but is left to exercise its
discretion[.]
Fernandez v. Cohn, 54 So. 3d 1040, 1042 (Fla. 3d DCA 2011) (quoting
Chaffin v. Jacobson, 793 So. 2d 102, 104 (Fla. 2d DCA 2001) (internal
citations omitted)).
While the plaintiff took longer than 120 days to serve Wharton, the
court was not required to dismiss the plaintiff’s complaint. The order does
not reflect the failure to serve Wharton within 120 days served as the basis
for the trial court’s dismissal of the complaint.

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Here, the trial court relied upon the wrong version of section 48.161 in
dismissing the complaint. 	The plaintiff provided the requisite affidavit of
compliance and exercised due diligence. We therefore reverse and remand
the case for the trial court to vacate its order quashing service of process.
Reversed and remanded.
LEVINE and SHEPHERD, JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.