Fourth DCA
Quisenberry v. Bates—(J. Kuntz; 4DCA; 2/1/23).
In the underlying case, Attorney Bates’ alleged that Quisenberry, the client, failed to pay the contract amount for his legal representation in a property lien case. The relevant part of the appeal, however, is the discussion on service of process, which is relevant to any civil case. Also, it’s notable that this opinion was entered when the DCA denied motions for rehearing and to certify a question, but the court then stated that it was sua sponte withdrawing its prior opinion and substituting this opinion in its place.
Attorney Bates attempted to sue Quisenberry, but the process server could not find him, so Attorney Bates submitted a sworn statement alleging constructive service. Attorney Bates claimed that Quisenberry was concealing himself, and there was no one else to serve. The clerk issued a notice of action threatening a default. It was mailed to Quisenberry and published in a newspaper once a week for four weeks. After there was no response, the clerk entered a default.
One year later, Quisenberry filed a motion to vacate the default and quash the service of process, arguing that constructive service by publication does not confer personal jurisdiction in a breach of contract case. (Attorney Bates had sued for breach of contract and unjust enrichment). Quisenberry argued that the proper way to serve someone based on the allegation of concealment is section 48.161, Fla. Stat.
Attorney Bates did not dispute that constructive service was not a proper way to assert personal jurisdiction over Quisenberry, but he argued that an objection to proper service is waived by avoiding personal service and then failing to timely respond to the notice of action. The trial court summarily denied the motion to vacate. Quisenberry appealed.
On appeal, the DCA agreed with Quisenberry that the objection to improper service was not waived. Constructive service by publication can only be used to confer in rem or quasi in rem jurisdiction, not personal jurisdiction for purposes of a money judgment. It simply does not matter whether Quisenberry was concealing himself. The service by publication in a breach of contract case is void, and so is the default judgment. Reversed and remanded, but the remand does allow Attorney Bates the opportunity to serve Quisenberry properly.
https://supremecourt.flcourts.gov/content/download/859188/opinion/202252_DC13_02012023_ 100242_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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