25 Fla. L. Weekly S559aNOT FINAL VERSION OF OPINION
Subsequent Changes at 26 Fla. L. Weekly S754c
Civil procedure — Service of process — Dissolved corporation — Pursuant to section 48.101, Florida Statutes (1991), service of process on dissolved corporation must be made on one or more directors of corporation as trustee rather than on corporation’s registered agent — Chapter 48, rather than chapter 607, is the Florida statute that expressly mandates the method by which service is to be perfected on dissolved corporation — 1989 amendments to section 607.1405 did not repeal by implication the express requirements of section 48.101 — In case at issue involving allegations that insurer had breached its policy by refusing to pay default judgment against its insured up to policy limits, court erred in denying insurer’s motion to set aside default judgment on ground that judgment was void because it had been procured against a dissolved corporation over which service had not been perfected
JEFFREY CANNELLA and JOANNE CANNELLA, Petitioners, v. AUTO-OWNERS INSURANCE COMPANY, Respondent. Supreme Court of Florida. Case No. SC95954. July 13, 2000. Application for Review of the Decision of the District Court of Appeal – Direct Conflict. Second District – Case No. 2D98-01663 (Pinellas County). Counsel: Roy C. Skelton, Clearwater, for Petitioners. A. Wade James, St. Petersburg, for Respondent.
(WELLS, C.J.) We have for review Auto-Owners Insurance Co. v. Cannella, 737 So. 2d 1129 (Fla. 2d DCA 1999), which expressly and directly conflicts with the opinions in Liszka v. Silverado Steak & Seafood Co., 703 So. 2d 1226 (Fla. 5th DCA 1998), and Wong v. Gonzalez & Kennedy, Inc., 719 So. 2d 937 (Fla. 4th DCA 1998), review dismissed, 743 So. 2d 508 (Fla. 1999) (case voluntarily dismissed). We have jurisdiction. See Art. V, § 3(b)(3), Fla. Const. For the reasons expressed herein, we approve the decision of the Second District below.
Jeffrey and Joanne Cannella (the Cannellas) sued Mock Plumbing Contractor, Inc. (Mock) for personal injuries allegedly incurred as a result of the negligence of Mock. Mock was insured by Auto-Owners Insurance Company (Auto-Owners). In the Cannellas’ lawsuit, service of process was effected against the registered agent of Mock on June 3, 1992. The Cannellas obtained a default judgment against Mock, which was a dissolved corporation at the time of service of process and had been so since October 1991. Thereafter, Mock assigned to the Cannellas the rights to any claims it had against Auto-Owners. The Cannellas then filed a lawsuit against Auto-Owners, claiming in the third count of their complaint that Auto-Owners had breached its policy by refusing to pay the prior default judgment up to the policy limits and that the Cannellas were the third-party beneficiaries of the insurance policy. Auto-Owners denied that it was in breach and filed motions to set aside the earlier default judgment. Among the grounds alleged in the motions by Auto-Owners was that the judgment had been procured against a dissolved corporation over which service had not been perfected and that the judgment was void, voidable, or otherwise unenforceable. The court denied Auto-Owners’ motions and entered a partial summary judgment against Auto-Owners. Damages were imposed up to the policy limits.
On appeal, the Second District Court of Appeal reversed, relying upon Stoeffler v. Castagliola, 629 So. 2d 196 (Fla. 2d DCA 1993), and Polk County Rand Investments, Inc. v. State Department of Legal Affairs, 666 So. 2d 279 (Fla. 2d DCA 1996). See Auto-Owners, 737 So. 2d at 1130. The district court held that pursuant to section 48.101, Florida Statutes (1991), service of process on a dissolved corporation must be made on one or more directors of the corporation as trustee rather than on a corporation’s registered agent. Id. Accordingly, the district court declared the judgment void and reversed and remanded for further proceedings. Id. The Second District recognized conflict with Liszka and Wong. Petitioners sought review in this Court, and we granted review based on conflict with the Fifth District’s decision in Liszka and the Fourth District’s decision in Wong.
The Cannellas argue here that, under the facts of this case, to continue requiring service of process upon the directors as trustees of a dissolved corporation as the exclusive method of serving a dissolved corporation would be to ignore the legislative intent of 1989 amendments to chapter 607, Florida Statutes, known as the Florida Business Corporation Act (Corporation Act). Petitioners contend that the 1997 Legislature clarified its intent as to dissolved corporations when it amended section 48.101, Florida Statutes, and that the intent, beginning with the 1989 amendments to the Corporation Act, was to allow service on registered agents of dissolved corporations.
Auto-Owners responds that, at the time of the attempted service in this case, section 48.101 expressly required that service of process on a dissolved corporation be made only upon a director as trustee, and there should be no finding of repeal of that provision by implication. We agree and find that the Second District correctly analyzed this issue in Stoeffler.
Prior to amendment in 1997, section 48.101, Florida Statutes (1991), provided:
Service on dissolved corporations. — Process against the directors of any corporation which is dissolved as trustees of the dissolved corporation shall be served on one or more of the directors of the dissolved corporation as trustees thereof and binds all directors of the dissolved corporation as trustees thereof.
Following the 1997 amendment, section 48.101 now provides:
Service on dissolved corporations. — Process against the directors of any corporation which was dissolved before July 1, 1990, as trustees of the dissolved corporation shall be served on one or more of the directors of the dissolved corporation as trustees thereof and binds all of the directors of the dissolved corporation as trustees thereof. Process against any other dissolved corporation shall be served in accordance with s. 48.081.1
The Cannellas urge this Court to adopt the analysis of the Fifth District in Liszka and look to section 607.1405(2)(g), Florida Statutes (1991), which provided at the time of the service in this case that “[d]issolution of a corporation does not . . . [t]erminate the authority of the registered agent of the corporation.” However, we note that, as the Second District held in Stoeffler, chapter 48, rather than chapter 607, is the Florida statute that expressly mandates the method by which service is to be perfected. On June 3, 1992, the date of service in this case, section 48.101 contained an express statement that service upon a dissolved corporation was to be upon a director as trustee but contained no express statement that service could be made upon the corporation’s registered agent. Moreover, chapter 607 contained no provision that expressly addressed service of process. Therefore, section 607.1405(2)(g) could not control the method of service of process for an attempt to serve process.
Moreover, we find that the 1989 amendments to section 607.1405 did not repeal by implication the express requirements of section 48.101. The strict conditions of repeal by implication that this Court set forth in Palm Harbor Special Fire Control District v. Kelly, 516 So. 2d 249 (Fla. 1987),2 have not been met in this case.
Accordingly, we approve the decision of the Second District below and disapprove Liszka and Wong.
It is so ordered. (SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.)
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1Section 48.081 provides for service on a corporation by serving officers of the corporation or, in their absence, any director, or in their absence, any officer or business agent residing in the state. As an alternative, process may be served on “the agent designated by the corporation under section 48.091.” If service cannot be made because a corporation has not designated a registered agent, service is permitted on any employee at the corporation’s place of business.
Section 48.091(1) provides in relevant part:
(1) Every Florida corporation and every foreign corporation now qualified or hereafter qualified to transact business in this state shall designate a registered agent and registered office in accordance with chapter 607.
2In Palm Harbor, this Court held:
It is well settled in Florida that the courts will disfavor construing a statute as repealed by implication unless that is the only reasonable construction. The courts’ obligation is to adopt an interpretation that harmonizes two related, if conflicting, statutes while giving effect to both, since the legislature is presumed to pass subsequent enactments with full awareness of all prior enactments and an intent that they remain in force.
Moreover, a statute . . . covering a specific subject, is controlling over a statute . . . that applies to a general class of subjects; in effect, the specific statute operates as an exception to the general.
516 So. 2d at 251-52 (citations and footnote omitted).
