DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROGER F. QUISENBERRY,
Appellant,
v.
DOUGLAS M. BATES,
Appellee.
No. 4D20-2252
[February 1, 2023]
Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carol-Lisa Phillips, Judge; L.T. Case No.
CACE18-016637.
Andrew M. Schwartz of Andrew M. Schwartz, P.A., Boca Raton, and
Christopher S. Salivar of Christopher S. Salivar, P.L.L.C., Delray Beach,
for appellant.
Douglas M. Bates, Lauderdale by the Sea, and Jennifer S. Carroll of
Law Offices of Jennifer S. Carroll, P.A., Jupiter, for appellee.
ON MOTION FOR REHEARING, REHEARING EN BANC, AND MOTION
TO CERTIFY QUESTIONS TO FLORIDA SUPREME COURT
KUNTZ, J.
Douglas Bates moves for rehearing, rehearing en banc, and to certify
questions to the Florida Supreme Court. We deny Bates’ motions but sua
sponte withdraw our prior opinion and issue this opinion in its place. No
motion for rehearing will be permitted and the Clerk of Court is directed
to issue the mandate upon issuance of this opinion.
Roger Quisenberry appeals the circuit court’s order denying his motion
to quash service of process and vacate a clerk’s default. We originally
dismissed the appeal as to the denial of the motion to vacate the clerk’s
default but allowed the appeal to proceed as to the denial of the motion to
quash service of process. After briefing, we vacated our earlier dismissal
order and reinstated the appeal “as to the [circuit court’s] order denying
the appellant’s motion to vacate the clerk’s default.” We now reverse the
circuit court’s order denying Quisenberry’s motion to quash service of
process. Because service of process was deficient, we also reverse the
circuit court’s order denying Quisenberry’s motion to vacate the clerk’s
default.
Background
Douglas Bates represented Quisenberry in a suit to foreclose a code
enforcement lien. A dispute arose over the payment of legal fees, and Bates
filed a complaint seeking damages from Quisenberry for breach of contract
and unjust enrichment. After a process server made several attempts to
serve Quisenberry with the complaint, Bates submitted a sworn statement
for constructive service. Bates stated that Quisenberry was concealing
himself, and Bates did not know of anyone else in the state upon whom
service could be made. A notice of action was issued which stated that a
default would be entered if Quisenberry did not respond to the complaint.
The notice of action was mailed to Quisenberry and published in the
Broward Daily Business Review once a week for four straight weeks. A
clerk’s default was later entered because Quisenberry did not respond to
the notice of action.
One year later, an attorney filed a notice of limited appearance on
Quisenberry’s behalf. On the same day, the attorney moved to vacate the
clerk’s default and quash service of process. Quisenberry maintained that
service of process should be quashed, and that the clerk’s default should
be vacated, because constructive service by publication did not confer
personal jurisdiction upon the court in a breach of contract case. He
argued that if Bates believed Quisenberry was concealing himself to avoid
personal service, he should have served him under section 48.161, Florida
Statutes (2020) (“Method of substituted service on nonresident”).
Bates did not dispute that constructive service was an insufficient basis
for the circuit court to assert personal jurisdiction over Quisenberry.
Instead, he argued that Quisenberry waived any challenge to service of
process or personal jurisdiction by avoiding personal service and then
failing to timely respond to the notice of action. The circuit court denied
the motion without explanation.
Analysis
As in the circuit court, Bates acknowledges constructive service of
process was improper but argues Quisenberry waived his challenge. We
disagree.
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Constructive service by publication can be used only in the types of
cases listed in section 49.011, Florida Statutes (2020). “If constructive
service [is] used, . . . it confers only in rem or quasi in rem jurisdiction
upon the court.” Bedford Comput. Corp. v. Graphic Press, Inc.,
484 So. 2d
1225, 1227 (Fla. 1986). It does not confer in personam jurisdiction
sufficient to support a personal money judgment. See
id. For that reason,
“section 49.011 is not authorized for this type of action, which sought a
money judgment premised on an alleged breach of contract, breach of
fiduciary duty, and breach of statutory duty of loyalty and care.” Demir v.
Schollmeier,
273 So. 3d 59, 61 (Fla. 3d DCA 2018).
Constructive service was not authorized and, as a result, the fact that
Quisenberry “likely was evading personal service of process and might
even have had actual knowledge of the existence of the action against him
is legally irrelevant to our decision.” Drury v. Nat’l Auto Lenders, Inc.,
83
So. 3d 951, 952 (Fla. 3d DCA 2012). The service of process is void and
“constitutionally deficient.”
Id. And because the service of process is void
the clerk lacked the authority to enter a default. See Chigurupati v.
Progressive Am. Ins. Co.,
132 So. 3d 263, 265-66 (Fla. 4th DCA 2013); New
England Rare Coin Galleries, Inc. v. Robertson,
506 So. 2d 1161 (Fla. 3d
DCA 1987).
Conclusion
We reverse the court’s order denying Quisenberry’s motion to quash
and motion to vacate the clerk’s default. We remand for further
proceedings, including allowing Bates the opportunity to serve
Quisenberry in accordance with Florida law.
Reversed and remanded.
WARNER and FORST, JJ., concur.
* * *
FINAL UPON RELEASE; NO MOTION FOR REHEARING WILL BE
ENTERTAINED; MANDATE ISSUED SIMULTANEOUSLY WITH
OPINION.
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