Archer v. U.S. Bank National Ass'n

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
PAUL ARCHER,
Appellant,
v. Case No. 5D16-1970
U.S. BANK NATIONAL ASSOCIATION,
NOT IN ITS INDIVIDUAL CAPACITY BUT
SOLELY AS TRUSTEE OF SW REMIC
TRUST 2014-1,
Appellee.
________________________________/
Opinion filed March 31, 2017
Non-Final Appeal from the Circuit
Court for Orange County,
Margaret H. Schreiber, Judge.
Melissa Alfonso and Adam H. Sudbury,
Apellie Legal, Orlando, for Appellant.
Diana B. Matson, Debbie Satyal and
Joshua R. Levine of Baker, Donelson,
Bearman, Caldwell & Berkowitz, PC, Fort
Lauderdale, for Appellee.
COHEN, C.J.
Paul Archer appeals from a nonfinal order denying his motion to quash
constructive service of process in this foreclosure case. Because the nonfinal order did
not determine personal jurisdiction over Archer, it is not appealable under Florida Rule of
Appellate Procedure 9.130(a)(3)(C)(i), and this Court lacks jurisdiction. We therefore
dismiss the appeal.
This case began when an in rem action to foreclose was filed against property that
was subject to a mortgage executed by Archer. U.S. Bank National Association was
ultimately substituted as party plaintiff in this case. After personal service was attempted
on Archer, to no avail, U.S. Bank constructively served Archer by publication. Archer
moved to quash the constructive service based on U.S. Bank’s alleged failure to comply
with the diligent search requirements set forth in sections 49.031 and 49.041, Florida
Statutes (2013). The trial court denied the motion to quash. The court’s order does not
refer to personal jurisdiction, and no assertion of personal jurisdiction was made in the
trial court.
This Court has previously held that, absent a determination regarding personal
jurisdiction, the denial of a motion to quash constructive service is not an appealable
nonfinal order. See, e.g., Koniecpolski v. Stelnicki, 571 So. 2d 577, 578 (Fla. 5th DCA
1990) (dismissing appeal because Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i)
does not vest jurisdiction in this Court over nonfinal order denying motion to quash
constructive service of process in foreclosure proceeding when order does not determine
jurisdiction of the person). “The case law is clear . . . that constructive service by
publication under [section 49.011(1), Florida Statutes] cannot confer a court with
jurisdiction over a person.” Milanick v. State, 147 So. 3d 34, 35 (Fla. 5th DCA 2014).
Rather, constructive service confers only in rem jurisdiction on the trial court. See Bedford
Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225, 1227 (Fla. 1986). Indeed,
personal jurisdiction is not required to initiate a foreclosure action because foreclosure
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proceedings instituted against the subject property are in rem proceedings. 1 See, e.g.,
NCNB Nat’l Bank of Fla. v. Pyramid Corp., 497 So. 2d 1353, 1355 (Fla. 4th DCA 1986);
see also § 49.011(1), Fla. Stat. (2013).
Additionally, Archer’s motion to dismiss, filed in conjunction with the motion to
quash, alleged that dismissal was appropriate because the service was untimely under
Florida Rule of Civil Procedure 1.070(j). However, “an order denying a motion to dismiss
that is based on untimely service under rule 1.070(j) is not an order which determines
‘jurisdiction of the person’ and therefore is not directly appealable under Florida Rule of
Appellate Procedure 9.130(a)(3)(C)(i).” Traylor Bros., Inc. v. Shipman, 758 So. 2d 91, 91
(Fla. 2000).
Thus, this Court lacks jurisdiction because the rules of appellate procedure do not
permit review of this nonfinal order.
DISMISSED.
SAWAYA and EDWARDS, JJ., concur.
1 Conversely, if the plaintiff is seeking a deficiency judgment in a foreclosure
proceeding, a trial court must have personal jurisdiction over the defendant. See Carter
v. Kingsley Bank, 587 So. 2d 567, 569 (Fla. 1st DCA 1991).
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