CopyCited 39 times | Published | Court of Appeals for the Eleventh Circuit | 3 Fed. R. Serv. 3d 740, 1985 U.S. App. LEXIS 21344
...A federal court may consider the sufficiency of process after removal and does so by looking to the state law governing process. Wright, Miller & Cooper, § 3738. The Florida statute sets forth thirteen types of actions in which service may be made by publication. Fla.Stat.Ann. § 49.011 (West Supp.1985)....
CopyCited 33 times | Published | Supreme Court of Florida | 31 Fla. L. Weekly Supp. 275, 2006 Fla. LEXIS 808, 2006 WL 1277971
...aternity cases, and there is no express provision within chapter 409 to authorize constructive service or to ensure that a legal father's interests are appropriately protected. See §
409.257, Fla. Stat. (2000) (requiring personal service); see also §
49.011, Fla....
CopyCited 29 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 87, 1986 Fla. LEXIS 1724
...On appeal, the First Circuit found the matter sufficiently in doubt to warrant certifying the following questions to this Court: *1227 (1) Can a Florida court obtain jurisdiction in personam over a non-resident corporation through constructive service of process under Fla. Stat. § 49.011, notice having been given not only by publication within Florida but also by certified mail addressed to defendant's correct out-of-state address (and actually received there by defendant)? (2) If the answer to question (1) is in the negative, and assuming notice of the kind mentioned in that question is provided, would a Florida court obtain jurisdiction in personam over a non-resident corporation under some theory of Florida law other than is provided by Fla. Stat. §§ 49.011 et seq.? We answer certified question (1) in the negative....
...OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur. BOYD, C.J., concurs in result with an opinion. ADKINS, J., dissents with an opinion. BOYD, Chief Justice, concurring in the result. I concur in the decision of the Court holding that under sections
49.011 and
49.021, Florida Statutes (1983), service of process by publication is not available under the facts of this case....
...when the defendant resides within the state. I do not believe that the requirement of personal service of process should be dispensed with when the matter to be adjudicated depends on the existence of in personam jurisdiction. The only provision of section 49.011 under which this case might reasonably be argued to be a proper case for service by publication is section 49.011(5), providing for such service of process in an action or proceeding "[f]or the construction of any will, deed, contract or other written instrument and for a judicial declaration or enforcement of any legal or equitable right, title,...
...f process. I agree with the majority opinion that service by publication is sufficient only *1229 when personal service is impossible. But it should be added that service by publication is also only available in cases coming within the provisions of section 49.011....
...nt. I would hold that service by publication in this case was ineffective not only because of the lack of any showing that personal service could not be had but also because the case is not among those for which constructive service is authorized by section 49.011. ADKINS, Justice, dissenting. I would answer certified question (1) in the affirmative. The majority holds that in personam jurisdiction over a nonresident corporation may not be obtained through the use of service by publication under section 49.011, Florida Statutes (1983); rather, under Florida law constructive service is limited to use in in rem or quasi in rem actions. I disagree. Section 49.011, Florida Statutes (1983), governs the types of actions in which service by publication can be employed....
...Therefore, I would hold, as did the district judge in this action, that section
49.021(2), Florida Statutes (1983), allows service of process by publication to be made upon non-resident corporations whenever personal service of process is unavailable, and that Bedford's action fell squarely within the provisions of section
49.011(5)....
CopyCited 24 times | Published | Florida 2nd District Court of Appeal
...tive service on Drake pursuant to Chapter 49, Fla. Stat. (1975). We summarily reject any contention that constructive service of process could confer jurisdiction over the person of a defendant in an in personam tort action like the instant one. See Section 49.011, Fla....
CopyCited 20 times | Published | Florida 5th District Court of Appeal
...The existence of personal jurisdiction in turn, depends upon the presence of reasonable notice to the defendant that an action has been brought. Personal service has always been regarded as the preferred method of accomplishing this. Service by publication under 49.011 may be made in dissolution proceedings only where personal service of process cannot be had....
...The court stated, however, that the court did have subject matter jurisdiction over the dissolution proceeding because it was indisputable that the wife had had adequate notice forestalling any due process attack on the final judgment. The court recognized that while section
49.011, Florida Statutes (1981) provides that service of process "by publication may be had in any court on any person mentioned in section
49.021 in any action......
...statutes. (2) PROCESS BY PUBLICATION: Service of process by publication under section
49.021, Florida Statutes, can be used only if personal service cannot be had [4] and then only in the in rem and quasi in rem actions and proceedings specified in section
49.011, Florida Statutes. [5] Process by publication cannot be the basis for money judgments and other judgments which determine personal *388 rights and obligations, [6] and this includes judgments granting or denying alimony [7] and child support. [8] Section
49.011(4), Florida Statutes, authorizes service of process by publication in actions for dissolution of marriage....
...risdiction in child custody cases. Accordingly, jurisdiction over the dissolution cause of action itself can only be obtained either by personal service of process under section
48.031, Florida Statutes, or by service of process by publication under section
49.011(4), Florida Statutes, but not under section
48.193(1)(e), Florida Statutes....
...The absolute requirement of physical presence (or domicile) was based on the need of the court to coerce obedience to its orders, an innate requirement of court jurisdiction. In such cases service of process by publication was apparently had under section 49.011(11), Florida Statutes....
...taken as binding precedent. [19] This conclusion should not be considered to be a legislative oversight for the reason that, as to causes of action for dissolution of marriage, in rem jurisdiction perfected by service of process by publication under section 49.011(4), Florida Statutes, is both legally adequate and reasonably convenient and it avoids the constitutional due process problems involved in the requirement of minimum contacts and of a nexus between such contacts and asserted causes of...
CopyCited 14 times | Published | Florida 3rd District Court of Appeal
...The trial court clearly had in rem jurisdiction over the marriage to enter these provisions of the final judgment as the husband was properly served by constructive process in the original marriage dissolution action. Lahr v. Lahr,
337 So.2d 837 (Fla. 2d DCA 1976); §
49.011(4), Fla....
CopyCited 14 times | Published | Florida 2nd District Court of Appeal | 1990 WL 77248
...rem jurisdiction. Bedford Computer Corp. v. Graphic Press, Inc.,
484 So.2d 1225 (Fla. 1986); Risman v. Whittaker,
326 So.2d 213 (Fla. 4th DCA 1976); see generally, H. Trawick, Florida Practice and Procedure § 8-17 (1989). Subsections (2) and (5) of section
49.011, Florida Statutes (1987), provide the court this jurisdiction in the type of suit at issue here: Service of process by publication may be made in any court on any person mentioned in s....
CopyCited 13 times | Published | Supreme Court of Florida
...Professor of Law, University of Fla., and Larry Turner, Gainesville, Storefront Legal Aid Organization of Alachua County, for amicus curiae. McCAIN, Justice. This is an appeal from a decision of the District Court of Appeal, Third District, which initially passed upon the validity of Florida Statutes Sections
49.011(10) and
49.10 (1971) F.S.A....
...Grissom obtained legal custody of the child and has cared for and acted in the parental capacity since the child's birth. Since the whereabouts of the natural mother of Sarah is unknown, the appellant is required to publish a notice of suit directed to the natural mother pursuant to Section 49.011(10) Florida Statutes F.S.A....
...A motion to dismiss was filed by the Intervenor State, which the circuit court granted with prejudice. The District *61 Court, in affirming the order of the trial court,
279 So.2d 899, stated: "In her first point on appeal appellant contends that the provisions of F.S. §
49.011(10) and
49.10 F.S.A., which require publication to obtain jurisdiction over the natural mother in an adoption proceeding ......
...ion: `Is it a fundamental right of the appellant and the class she seeks to represent to have the taxpayers of the state or county pay her publication costs?' We reply in the negative." The question raised by this appeal is whether the provisions of Section
49.011(10) and
49.10, Fla....
...The merits of the appellant's right to adopt this child is clearly not the issue. What is at issue is her right of access to the courts to see if she is a fit person to adopt this child. She is clearly challenging the right to invoke the jurisdiction of the court through the only method available statutorily. Fla. Stat. §
49.011(10),
49.10 (1971)....
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 1970 Fla. App. LEXIS 6205
...otifying persons to be affected of the pendency of the action. But this does not include any notion that such persons be within the state at any time or that notification be given to them there. The power notion is satisfied by power over the thing. Section
49.011, Florida Statutes 1967, F.S.A., enumerates specific instances in which service of process by publication may be made. This section nowhere provides for notice by publication in bastardy cases; however, subsection (12) of F.S.
49.011, F.S.A., reads as follows: "Service of process by publication may be made in any court on any person mentioned in §
49.021, in any action or proceeding: *595 (12) Wherein personal service of process or notice is not required by the statute...
...onstitution of the United States." Since there is no specific statutory provisions for constructive service in bastardy cases, we must of necessity turn to the question of whether this type of action would be within the ambit of subsection (12) of F.S. 49.011, F.S.A., wherein personal service of process or notice would not be required....
...The child does not become his heir and has no claim on him for maintenance further than that given by the judgment of the court. In light of the foregoing, we determine that the action here is one "in personam," and demands service of process; accordingly, it is not within the ambit of subsection (12), F.S. 49.011, F.S.A....
CopyCited 11 times | Published | Florida 5th District Court of Appeal | 2006 WL 435697
...The failure to strictly adhere to the statutes' requirements deprives the court of jurisdiction over the defendant improperly served. Anthony v. Gary J. Rotella & Assocs., P.A.,
906 So.2d 1205, 1207 (Fla. 4th DCA 2005). A mortgage holder may serve process by publication in a foreclosure action. See §
49.011, Fla....
CopyCited 9 times | Published | Florida 4th District Court of Appeal
...dissolving the marriage. The parties will be referred to as they appeared in the trial court. Petitioner-wife filed an action to dissolve the marriage between the parties. Service of process by publication was attempted in accordance with Fla. Stat. § 49.011 (1973)....
...The Motion to Vacate assigned as grounds therefor two primary errors: first, that petitioner-wife at the time of the filing of the petition had not been a resident of the State of Florida for the immediately preceding six months; and secondly, that the requirements of Fla. Stat. §
49.011, necessary to perfect service of process by publication had not been complied with and that consequently the court never acquired jurisdiction of the respondent. We agree that there was no valid service of process as required by Fla. Stat. §§
49.011,
49.031,
49.041 (1973)....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 1991 WL 45202
...Emilio Cosio, the prospective purchaser in a failed real estate transaction, filed an action for breach of contract, fraud, and rescission against the seller, Alden Zieman. After unsuccessfully attempting personal service, Cosio served Zieman by publication. See §§
49.011,
49.021, Fla....
...The trial court entered a Final Judgment after Default awarding a money judgment against Zieman. Subsequently, the trial court denied Zieman's motion to set aside the judgment based on lack of personal jurisdiction. We reverse. Cosio contends that service by publication was proper under section 49.011(2), Florida Statutes (1989). We disagree. The complaint seeks money damages and rescission of the contract, actions not enumerated in section 49.011, Florida Statutes (1989), which sets forth the cases in which service by publication is authorized....
...The threshold question is whether a court with in rem jurisdiction may order a return of a deposit which was paid pursuant to a contract for the purchase of real estate where entitlement to the relief necessitates a rescission of the contract. I disagree with the blanket majority holding that section 49.011, Florida Statutes (1989), does not permit service by publication in a cause of action for rescission....
...was identified as Zieman's agent. Several efforts to serve Zieman proved futile. After a default had been entered on constructive service, Zieman's attorney appeared on a motion to set aside the default, but refused to accept service for his client. Section 49.011, Florida Statutes (1989), controls....
...nly as between the particular parties to the proceeding. Id. The judgment for a return of particular property in this case, as in Miller v. Griffin,
99 Fla. 976,
128 So. 416 (1930), could operate only against the property and not against the person. Section
49.011(1) does not itemize or limit the underlying causes of action where a court, with jurisdiction over a fund, may decide issues of status, ownership, or rights in the property....
...The majority places total reliance on the court's characterization of the relief granted as a fatal flaw on the jurisdictional issue. Jurisdiction is a matter of pleading and proof. See Fla.R.Civ.P., 1.110(b) and 1.120(a). The pleadings were sufficient to bring the cause within section 49.011, which provides for service by publication....
...[2] The special concurrence construes the pleadings and the final judgment as if the trial court had quasi in rem jurisdiction premised on an action "[t]o enforce any ... equitable ... claim to any title or interest in ... any fund held ... by any party on whom process can be served within this state." § 49.011(1), Fla....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 12 Fla. L. Weekly 1224
...4th DCA 1975), where, as here, the action is one for damages arising out of breach of contract, breach of warranty, fraud and negligent misrepresentation, and thus, service of process by publication, expressly limited to quite different actions and proceedings enumerated in Section 49.011, Florida Statutes (1985), is not available to the plaintiff to procure in personam jurisdiction over the defendant....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 10 Fla. L. Weekly 624
...unreasonable time the delay from 1979 until the filing of the more formal motion in 1983 was more than a reasonable time because in the meantime the wife had made improvements to the property relying upon the validity of the original final judgment. Section 49.011(4), Florida Statutes, provides for constructive service of process in a dissolution action. Section 49.011(1), Florida Statutes, has a separate provision for an action to enforce any legal or equitable lien or claim to any title or interest in real or personal property within the jurisdiction of the court....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 2006 Fla. App. LEXIS 12862, 2006 WL 2136670
...service of process. Ugly Mortgage filed an action to foreclose the mortgage. Ugly Mortgage alleges it was unable to personally serve the Girons. It filed an affidavit of diligent search and claimed to have perfected constructive service pursuant to section 49.011, Florida Statutes (2005)....
...that they had a contract pending to sell the house as well as other portions of their testimony. The Girons appealed. *582 Constructive service of process is proper only if personal service cannot be obtained and only in the kinds of cases listed in section 49.011, Florida Statutes (2005)....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal
...tem for his minor son by a previous marriage, the trial court denied the wife's motion for relief. We reverse. Constructive service, often referred to as service by publication, is available to the petitioner in a dissolution of marriage proceeding. Section 49.011(4), Florida Statutes....
CopyCited 6 times | Published | Florida 4th District Court of Appeal
...Rule 9.130(a)(3)(C)(i), Florida Rules of Appellate Procedure. The Corporation contends that the order denying its motion to dismiss should be reversed because service of process by publication is not a proper means of obtaining personal jurisdiction over a defendant, since Section 49.011 does not authorize service of process by publication in a personal injury negligence action for money damages. The Walders have not filed a brief to assist us in deciding this appeal. Section 49.011 authorizes service of process by publication in only twelve types of actions or proceedings....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2012 WL 832813, 2012 Fla. App. LEXIS 4065
...This is an appeal from an order denying Mark Drury's motion, brought pursuant to Florida Rule of Civil Procedure 1.540(b)(4), for relief from a default money judgment obtained against him after he was served with process by publication pursuant to section 49.011, Florida Statutes (2009), on the ground the judgment is void....
...National Auto attempted to serve Drury personally at his gated home in Nassau County, but failed, despite the fact it appeared the house was occupied and records indicated Drury resided there. Justifiably concluding Drury was evading service, National Auto then served Drury by publication under section 49.011, Florida Statutes....
...ursuant to Florida Rule of Civil Procedure 1.560(b), which had been mailed to the same Nassau County address at which service had been attempted, Drury filed a motion for relief from the default judgment, asserting service by publication pursuant to section 49.011 was neither a statutorily authorized nor a constitutionally sufficient method of securing the in personam jurisdiction over him necessary to sustain the default final judgment. We agree with Drury. Service of process by publication is authorized only under certain enumerated instances listed under section 49.011 of the Florida Statutes....
..."[S]trict and substantial compliance with the provisions of [the] statute must be shown in order to support the judgment. . . ." Napoleon B. Broward Drainage Distr. v. Certain Lands Upon Which Taxes Due,
160 Fla. 120,
33 So.2d 716, 718 (Fla.1948). National Auto argues service by publication was proper in this case under section
49.011(1) of the Florida Statutes (2009), authorizing service by publication "[t]o enforce any legal or equitable lien or claim to any . . . debt owing by any party on whom process can be served within this state." (Emphasis added). However, this subsection of
49.011 of the Florida Statutes does not apply to an action filed to obtain a judgment on a personal guaranty....
...reach of contract, on which this Court has concluded that service by publication does not lie. See Zieman v. Cosio,
578 So.2d 332, 332 (Fla. 3d DCA 1991) (finding actions for money damages and rescission of the contract are not actions enumerated in section
49.011); see also Meiliunas v....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...The tenant sued the landlord for a money judgment in "... an action for damages arising out of the breach of a lease agreement pertaining to real estate ..." The tenant obtained constructive service of process upon the out-of-state landlord via publication under F.S. 49.011, Laws of 1973....
...We have examined the tenant's complaint with care (and without the benefit of his appellate advice). It alleges no in rem jurisdiction. It is simply an action ex contractu a suit for damages based on breach of contract. This being true, the service attempted on the landlord under F.S. 49.011, Laws of 1973, was void....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...the absent wife. In view of the foregoing there is no impediment to continuing with the dissolution proceedings on the basis of in rem jurisdiction and adequate notice to the absent wife. Responding to the concerns of the special concurring opinion, Section 49.011 Florida Statutes (1981) provides that service of process "by publication may be made in any court on any person mentioned in s....
...Service of process is controlled by legislation. Personal service of process on out-of-state residents does not appear to be specifically authorized in dissolution actions. Section
48.193, Florida Statutes (1981). Constructive service is authorized. Section
49.011, Florida Statutes (1981)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal
...ntered a final money judgment on default against Winifred Huguenor. Winifred subsequently moved to set the judgment aside on the ground that it was void for lack of personal jurisdiction over her. The motion was denied and this appeal followed. *346 Section 49.011, Florida Statutes, authorizes service of process by publication in certain enumerated actions or proceedings....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1979 Fla. App. LEXIS 14618
...Therefore, even if the deputy had been able to effect personal service upon appellant in Illinois, there would have been no in personam jurisdiction over her with respect to this complaint. The appellee's efforts to obtain in rem jurisdiction by constructive service *100 were equally ineffective. Section 49.011, Florida Statutes (1977), describes the only types of actions in which constructive service of process may be employed, and no such action was alleged in the complaint....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...We have, nevertheless, *349 examined the grounds stated in his motion to dismiss the complaint below [4] and disagree with his contention that the second count initiates an in personam proceeding and that it cannot be maintained upon mere constructive service as was had in this case. See, Fla. Stat. § 49.011(1) (1973)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...ciency judgment, is impossible or prohibited. We disagree with appellee and reverse the trial court's order setting aside the deficiency final judgment. A plaintiff is not required to effect personal service upon a defendant in a foreclosure action. Section 49.011(1), Florida Statutes (1983) provides that service by publication properly brings the matter within the trial court's in rem jurisdiction: Service of process by publication may be made ......
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
...shall become a tenancy in common." Where personal service of process cannot be effected in an action to enforce any equitable title or interest in real or personal property within the jurisdiction of the court, service by publication is proper. See § 49.011(1), Fla. Stat. (1981). Similarly, such service is proper in any action for the dissolution of a marriage. § 49.011(4), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 2478, 2009 WL 763551
...Then, about one month later, the homeowner moved to vacate the final judgment and the foreclosure sale. The trial court granted the homeowner's motion, and the bona fide purchaser appeals. Constructive service of process is proper only if the party cannot obtain personal service of process. See § 49.011, Fla....
CopyCited 2 times | Published | District Court of Appeal of Florida | 1973 Fla. App. LEXIS 7748
...First, we find plaintiff-appellee’s cause of action not to be a true interpleader action even though identified as such, but rather to be closer in nature to an action for declaratory judgment and therefore personal service or process is not required. See F.S. 49.011, F.S.A....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 463
...The complaint alleges that the execution of the note was in Broward County, Florida, that appellant failed to pay the note upon demand, and that the appellant is indebted to appellee for the principal balance plus interest and attorney's fees. Service of process by publication is expressly provided for in section 49.011, Florida Statutes (1985), and the types of cases in which such process can be utilized are listed....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1973 Fla. App. LEXIS 6887
...After reviewing the briefs and record on appeal and having heard oral argument we are of the opinion that that portion of the final judgment quashing the service of process should be affirmed. The nature of the instant action and proceeding is not one that falls within the provisions of F.S., Section 49.011, F.S.A., sanctioning constructive service of process, but rather is governed by the provisions of Chapter 48, Florida Statutes, F.S.A....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2007 Fla. App. LEXIS 14574, 2007 WL 2710774
...Stat. (2007); Marsh v. Patchett,
788 So.2d 353 (Fla. 3d DCA 2001). Additionally, Taylor's absence from the jurisdiction did not toll the statute of limitations. See §
95.051(a), Fla. Stat. (2007). Service on Taylor was possible by publication, under section
49.011(9), Florida Statutes (2007)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 7298, 2014 WL 1975652
...The State responded by admitting that it failed to personally serve Milanick *35 and filing a proof of service by publication. The trial court denied Milanick’s motion, ruling that the case was a debt enforcement case and that constructive service was sufficient to confer personal jurisdiction under section 49.011(1), Florida Statutes. This timely appeal followed. Section 49.011, Florida Statutes, provides that service by publication may be made in any action or proceeding “[t]o enforce any legal or equitable lien or claim to any title or interest in real or personal property within the jurisdiction of the court or any fund held or debt owing by any party on whom process can be served within [Florida].” § 49.011(1), Fla....
...If such an action is to be prosecuted against one on whom personal service cannot be effected it must be brought ‘quasi in rem’ and directed against property (which may include a debt owed) belonging to the defendant found in this state.”). Moreover, section 49.011 must be strictly construed against the party who seeks to obtain service under it....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2017 WL 1202683, 2017 Fla. App. LEXIS 4418
...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....
...oreclosure
2
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....
CopyCited 1 times | Published | Supreme Court of Florida
which the legislature has prescribed by Fla. Stat. §
49.11 (1973) is fully consistent with due process, in
CopyCited 1 times | Published | District Court of Appeal of Florida
notion is satisfied by power over the thing. Section
49.011, Florida Statutes 1967, F. S.A., enumerates
CopyCited 1 times | Published | Supreme Court of Florida | 32 Fla. L. Weekly Supp. 501, 2007 Fla. LEXIS 1235, 2007 WL 2002673
...e service, deployment, or temporary assignment. Ch. 2007-132, § 1, Laws of Fla. New form 12.905(d) is specifically tailored to a temporary modification necessitated by a parent's military service. Chapter 2007-85, section 1, Laws of Florida, amends section 49.011, Florida Statutes (2006) to allow service of process by publication on a legal father in a paternity action in which another man is alleged to be the biological father, in which case it is necessary to serve process on the legal father in order to establish paternity with regard to the alleged biological father....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...at 494-95,
140 So. at 190, quoting Ruling Case Law. In times past, when assigning judicial review of administrative or nonjudicial action, the legislature frequently enacted a venue logic similar to that of statutes placing suits in the trial court system, Section
49.011, and locating nonjudicial hearings within the state, Section
440.25(3)(b)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2002 WL 31875064
...otice in a local newspaper. Florida Rule of Juvenile Procedure 8.505(c) and section
39.801(3)(b), Florida Statutes, both provide that parties upon whom personal service of process cannot be affected shall be served by publication as provided by law. Section
49.011(13), Florida Statutes, provides for service of process by publication in termination of parental rights cases....
CopyPublished | Florida 5th District Court of Appeal
...“Service of process by publication may
be made in any court on any party identified in [section
49.021,
Florida Statutes], in any action or proceeding” to, inter alia, “quiet
title or remove any encumbrance, lien, or cloud on the title to any
real or personal property within the jurisdiction of the court.” §
49.011(2), Fla....
CopyPublished | Florida 4th District Court of Appeal
...Analysis
As in the circuit court, Bates acknowledges constructive service of
process was improper but argues Quisenberry waived his challenge. We
disagree.
Constructive service by publication can be used only in the types of
cases listed in section 49.011, Florida Statutes (2020)....
...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....
CopyPublished | Court of Appeals for the Eleventh Circuit | 15 Collier Bankr. Cas. 2d 569, 1986 U.S. App. LEXIS 29459
(1980); C. Sand, Sutherland Statutory Construction §
49.11 at 414-15 (N. Singer 4th ed. 1984). Based on this
CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 6042
...ve to permit the plaintiffs to obtain jurisdiction over the non-resident defendants by publication in this action ex con-tractu for recovery of a commission. The service attempted on the two nonresident individual defendants was by publication under § 49.011 Fla.Stat., F.S.A....
...Rand, Fla.App.1962,
144 So.2d 512, 514 ), because the method of substituted service provided for in that statute (by service on the Secretary of State) was not employed in this instance. As for the service attempted on the non-residents in this case under §
49.011 Fla.Stat., F.S.A., we hold, for the reasons set out above, that the complaint did not present a basis for service by publication on the non-resident appellants....
CopyPublished | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 15778, 2009 WL 3349659
...Brown appeals the trial court’s sua sponte dismissal of his petition for annulment for lack of personal and subject matter jurisdiction. He contends that the appellee’s citizenship and residence are not relevant to a determination of jurisdiction in an action solely for annulment where the requirements of sections
49.011,
49.021, and
49.041, Florida Statutes (2008), have been satisfied....
...He then filed a petition for annulment in Duval County, alleging his marriage to appellee was void or voidable as contrary to public immigration policy. Unable to discover appellee’s current residence, appellant attempted to serve process by publication pursuant to section 49.011, Florida Statutes (2008)....
...This timely appeal followed. Although personal service may be a preferred method of process, statutory law provides for constructive service of process on a non-resident defendant in any action for annulment where personal service cannot be had. See §§
49.011,
49.021, Fla....
CopyPublished | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 2489, 1985 Fla. App. LEXIS 16551
...The non-final- order of the trial court is affirmed upon a holding that 1) the trial court clearly had in rem jurisdiction over the marriage to enter a final judgment of dissolution where the wife was properly served by constructive process, Gelkop v. Gelkop,
384 So.2d 195 (Fla. 3d DCA 1980), section
49.011(4), Florida Statutes (1983) and 2) the notice of action published in this cause was defective in that it failed to describe the property proceeded against as required by section
49.08(4), Florida Statutes (1983), thereby denying appell...
CopyPublished | Florida 3rd District Court of Appeal
...er him, the subsequent default final
judgment was void and not merely voidable. We agree.
Georg Schollmeier, the plaintiff below, was unable to personally serve
defendant, and thereafter constructively served defendant by publication under
section 49.011. However, and as plaintiff commendably concedes, substituted
service by publication under 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.1 See
Drury v....
...would deprive a defendant of his property without due process of law”); New
England Rare Coin Galleries, Inc. v. Robertson,
506 So. 2d 1161, 1162 (Fla. 3d
DCA 1987) (reversing order denying motion to vacate default judgment and
holding that service of process by publication under section
49.011 was not
authorized for an action seeking damages for breach of contract, breach of
warranty, fraud and negligent misrepresentation; such service failed to acquire
personal jurisdiction over defendant, rendering subsequent default an...
...is void.
Castro v. Charter Club, Inc.,
114 So. 3d 1055, 1059 (Fla. 3d DCA 2013) (emphasis
added) (citations omitted). See also Ressler v. Sena,
307 So. 2d 457 (Fla. 4th DCA
1975) (holding that constructive service of process by publication under section
49.011 was void in an action for damages arising out of an alleged breach of
contract).
Although a trial court’s denial of a rule 1.540 motion is ordinarily reviewed
for an abuse of discretion, “[i]f it is determined that the ju...
CopyPublished | Florida 4th District Court of Appeal
...receives notice of any action against him so that he may have
his day in court in accordance with due process
requirements.” Id.
Green Emerald Homes, LLC v. Bank of New York Mellon,
204 So. 3d 512,
515 (Fla. 4th DCA 2016); accord §
49.011, Fla....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 2640, 1985 Fla. App. LEXIS 16962
mailing to the Hastings residence was returned. Section
49.011(1), Florida Statutes (1983), provides that
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 22110
require an accounting. We affirm the order. See section
49.011, Florida Statutes (1979), and Gribbel v. Henderson
CopyPublished | Florida 4th District Court of Appeal | 2007 Fla. App. LEXIS 18148, 2007 WL 3355576
...in Broward County circuit court, alleging that the whereabouts of the wife and child were unknown. He simultaneously filed an affidavit of diligent search and inquiry. Constructive service of process was effected by publication pursuant to sections
49.011 and
49.021, Florida Statutes (2007)....
...4th DCA 2005) (citation omitted). Service by publication is the statutorily designated mode of obtaining service of process over a spouse who is not a resident of the State of Florida. See Arnstein v. Arnstein,
422 So.2d 1052, 1053 (Fla. 4th DCA 1982). Section
49.011(4), Florida Statutes (2007), provides that “[sjervice of process by publication may be made in any court on any party identified in s....
CopyPublished | Florida 6th District Court of Appeal
could not have properly granted such a request. Section
49.011, Florida Statutes (2022), permits service
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 1114, 1988 Fla. App. LEXIS 1943, 1988 WL 43401
...Appellant and the parties’ children have resided in Texas, continuously, since 1979. Appellee/husband established his residency in Florida and filed a petition for dissolution of marriage in the lower court. Service of process on appellant was by publication pursuant to § 49.011(4), Florida Statutes (1985)....
CopyPublished | Florida 3rd District Court of Appeal | 1998 Fla. App. LEXIS 4877, 1998 WL 219825
...ent transfer of property. As such, while the instant action may ultimately have an indirect affect on real property, it does not directly affect real property. Therefore, as an in personam action, service of process by publication was improper under Section 49.011, Florida Statutes (1997)....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 4430, 1991 WL 76529
...cess by publication may be had upon any party, natural or corporate, known or unknown * * *. [e.s.j We read this language to mean what it so plainly says — that service by publication may be used (assuming the case is one of the kinds described in section 49.011) only when personal service cannot be effected....
...ving party knows the served party’s out-of-state address, its opinion makes that conclusion unavoidable. As Chief Justice Boyd explained the court’s holding in his special concurring opinion, it was that (if the case is one of those described in section
49.011), “service by publication is sufficient only when personal service is impossible.”
484 So.2d at 1228-1229 ....
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 3378, 2010 WL 837863
...Calderon,
982 So.2d 1199, 1201 (Fla. 3d DCA 2008). On its surface the law concerning service of process by publication is relatively clear. Where personal service of process cannot be had, service of process by publication may be utilized in any case allowed by section
49.011 upon any party, natural or corporation, known or unknown. §
49.021, Fla. Stat. (2007). Pursuant to section
49.011, service of process by publication may be utilized in any court on any party in order to partition real or personal property within the jurisdiction of the court. §
49.011(3), Fla....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 16142
...See 4 Am. Jur.2d, Annulment of Marriage § 65 (1962) and Annot. 43 ALR 2d 1086 , 1095 (1955). Last, constructive service in an action for annulment of marriage does not contradict the public policy of this state as our own statutes so provide. See Section 49.011(4), Florida Statutes (1975)....
CopyPublished | District Court of Appeal of Florida | 1977 Fla. App. LEXIS 16322
amenable to service by publication pursuant to Section
49.011, Florida Statutes (1975). They further moved
CopyPublished | Florida 4th District Court of Appeal
...The trial court dismissed appellant’s petition for
modification of a parenting plan because appellant failed to serve the
former wife within 120 days, in accordance with Florida Rule of Civil
Procedure 1.070(j). Appellant, however, served his former wife by
publication, as her whereabouts were unknown. See § 49.011(4), Fla.
Stat....
CopyPublished | Florida 4th District Court of Appeal | 2017 Fla. App. LEXIS 10447, 2017 WL 3085333
...The trial court dismissed appellant’s petition for modification of a parenting plan because appellant failed to serve the former wife within 120 days, in accordance with Florida Rule of Civil Procedure 1.070(j). Appellant, however, served his former wife by publication, as her whereabouts were unknown. See § 49.011(4), Fla....
CopyPublished | Florida 5th District Court of Appeal
...“Service of process by publication may be made in any court on
any party identified in [section
49.021, Florida Statutes], in any action or
proceeding” to, inter alia, “quiet title or remove any encumbrance, lien, or
cloud on the title to any real or personal property within the jurisdiction of the
court.” §
49.011(2), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2013 WL 3455747, 2013 Fla. App. LEXIS 10986
...The case immediately proceeded to trial, and the trial court entered the final judgment of foreclosure. We reverse. It is well-established that “[cjonstructive service of process is proper only if personal service cannot be obtained and only in the kinds of cases listed in section 49.011, Florida Statutes.” Giron v....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 14223
...At the same time Great Southern moved for pre-judgment garnishment against Shannon, pursuant to §
77.031 et seq., F.S.1973, seeking to attach Shannon’s aforementioned debt to Shelfer. Personal service against Shelfer was unsuccessful so Great Southern perfected constructive process against him pursuant to §
49.011, F.S.1973....
CopyPublished | District Court of Appeal of Florida
service by publication on the defendant. See F.S. § 49.-011, F.S.A. Cf. deMoya v. dePena, Fla.App.1963, 148
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 93, 1997 WL 7133
...48.194 cannot be had, service of process by publication may be had upon any party, natural or corporate, known or unknown, ...” This language has been construed to mean that service by publication may be used (provided the case is one of those enumerated in section 49.011) only when personal service cannot be effected....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 1729, 1991 WL 27187
...It is an accepted principle that service by publication “is less likely to provide effective notice to a [party] than personal service; thus, service by publication should only be used when necessary.” Bedford Computer Corp. v. Graphic Press, Inc.,
484 So.2d 1225, 1227 (Fla.1986). When construing section
49.011, et....
CopyPublished | Florida 4th District Court of Appeal
...As in the circuit court, Bates acknowledges constructive service of
process was improper but argues Quisenberry waived his challenge. We
disagree.
2
Constructive service by publication can be used only in the types of
cases listed in section 49.011, Florida Statutes (2020)....
...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....
CopyPublished | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 18812, 2010 WL 4962879
...ts and obligations of the parties. While constructive service is sufficient for an adjudication of the former, personal jurisdiction is generally required for a determination of the latter. Davis v. Dieujuste,
496 So.2d 806, 808 (Fla.1986); see also §
49.011(4), Fla....
CopyPublished | Supreme Court of Florida | 23 Fla. L. Weekly Supp. 615, 1998 Fla. LEXIS 2210, 1998 WL 831348
publication when a spouse cannot be located. Under section
49.011, Florida Statutes (1997), service by publication
CopyPublished | Florida 3rd District Court of Appeal | 2011 Fla. App. LEXIS 20460, 2011 WL 6372943
...48.194 cannot be had, service of process by publication may be had upon any party, natural or corporate, known or unknown _” (emphasis added). The statute’s plain language mandates that serr vice of process by publication (provided the case is one of the kinds listed in section 49.011, Florida Statutes (2010)) is only permitted when personal service cannot be obtained....
CopyPublished | Florida 3rd District Court of Appeal
...Judgment as Void, Motion to Quash Service of Process for Want of
Personal Jurisdiction,” entered in favor of the plaintiff below, Right of the
Dot, LLC (“ROTD”). We reverse the order under review because service of
process by publication under section 49.011, Florida Statutes (2021), is not
authorized in an action seeking monetary damages for an alleged breach of
contract.
Facts:
ROTD filed suit against Metnick, alleging in the First Amended
Complaint as follows....
...Metnick filed a limited appearance to contest personal jurisdiction,
and filed a motion to vacate the default and the default final judgment as
void, and a motion to quash service of process for want of personal
jurisdiction. Metnick argued that section 49.011 provides for service of
process by publication only in certain enumerated types of cases, which
does not include breach of contract cases seeking monetary damages.
Further, even if service of process by publication was proper, the s...
...2002) (stating that a
trial court’s ruling as to personal jurisdiction is reviewed de novo).
4
Discussion:
Metnick argues that service of process by publication of the First
Amended Complaint was improper under section 49.011....
...As such, the trial
court failed to obtain personal jurisdiction over him, and the default final
judgment entered against him his void and must be vacated. For the
reasons that follow, we agree.
Service of process by publication is limited by section
49.011 to
certain enumerated actions or proceedings. See §
49.011 (“Service of
process by publication may be made in any court on any party identified in
s.
49.021 in any action or proceeding: . . . [sections
49.011(1) through (15)
enumerate the specific actions or proceedings].”). It is undisputed that an
action for breach of contract seeking monetary damages is not enumerated
in sections
49.011(1) through (15). See Demir v. Schollmeier,
273 So. 3d
59, 61 (Fla. 3d DCA 2018) (“[S]ubstituted service by publication under
section
49.011 is not authorized for this type of action, which sought a
money judgment premised on an alleged breach of contract[.]”) (footnote
omitted); see also Drury v....
...g is set forth
in ROTD’s First Amended Complaint. Metnick argues that ROTD’s First
Amended Complaint asserts an action for breach of contract seeking
monetary damages, and therefore, service of process by publication was
not authorized under section 49.011....
...“because ROTD also has a common law lien in equity, and the Contract
recognized ROTD’s equitable rights to pursue a commission from any
proceeds Metnick received from the sale of the domain name, service by
publication was authorized as a matter of law” under section 49.011(1).
Section 49.011(1) recognizes the right to service by publication “[t]o
enforce any legal or equitable lien or claim to any title or interest in real or
personal property within the jurisdiction of the court or any fund held or debt
owing by any...
...uity,”
the only relief sought by ROTD in the First Amended Complaint was
damages for Metnick’s alleged breach of contract. Thus, under these
circumstances, service of the First Amended Complaint by publication was
not authorized under section 49.011....
...ordinarily reviewed for an abuse of discretion, however, when the entered
judgment is void, the trial court has no discretion, and is required to vacate
the judgment). Accordingly, we reverse the order under review.
As we have reversed the order under review because section 49.011
does not authorize service of process by publication for an action seeking
monetary damages for an alleged breach of contract, we do not need to
address Metnick’s remaining argument that ROTD failed to establish that it
conducted...
CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 6698
...The defendant appealed. Appellant argues that specific performance of a contract to sell land lying within the jurisdiction of the court cannot be decreed on the basis of service upon a non-resident seller by publication. That argument is without merit. Section 49.011, Fla.Stat., F.S.A....
...ontracts, the language sufficiently covers such an action or proceeding in that it refers to enforcement of any legal or equitable claim to any title or interest in real or personal property within the jurisdiction of the court. Other subsections of § 49.011 authorize service by publication in actions to quiet title or remove clouds from title; partition of lands lying within the jurisdiction of the court; for divorce or annulment of marriage; for construction of wills, deeds, contracts and for...
...ons the enumeration of which we omit. From the foregoing it is observed that service by publication against a non-resident seller in an action for specific performance of a land sale contract not only appears expressly authorized by sub-section 1 of § 49.011, but also it is consistent with the numerous types of actions for which substituted service is permitted by the statute....
