MARK A. DRURY, APPELLANT,
v.
NATIONAL AUTO LENDERS, INC., ETC., APPELLEE

Fla. 3d DCA | 2012-03-14
No. 3D11-2163
Before SHEPHERD, CORTIÑAS, and LAGOA, JJ.
83 So. 3d 951 Florida District Court of Appeal, Third District (2012) Positive Treatment
Cited by 8 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that service by publication was an improper method to obtain a default money judgment on a personal guaranty, rendering the judgment void.


Headnotes

[1] Service by publication is not statutorily authorized for actions seeking a personal money judgment on a personal guaranty.

[2] A personal judgment against a defendant based upon constructive service of process deprives the defendant of property without due process of law.

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

National Auto Lenders obtained a default money judgment against Mark Drury after serving him by publication on a personal guaranty claim. Drury moved …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
SHEPHERD, J.

SHEPHERD, J.

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. We find the trial court erred in denying the motion.

*952This case arises out of an action by National Auto Lenders, Inc. against Drury for breach of a personal guaranty. 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. Although counsel for Drury's failed corporation, also a defendant, knew of the filing of the complaint against Drury and attempted service, Drury elected not to respond. Ultimately, National Auto obtained a final default judgment against Drury personally in the sum of $114,298.32.

After receiving a post-judgment order to complete a fact information sheet, divulging his income and assets pursuant 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. “[Sjtrict 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, 83 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. Such an action for our purposes is akin to and legally indistinguishable from an action for breach 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. O’Leary, 483 So.2d 509, 510 (Fla. 4th DCA 1986) (holding suit on a promissory note was not type of case in which service by publication can be utilized). Service by publication to enforce a personal guaranty is not authorized under the statute.

Moreover, because “[a] personal judgment against a defendant based upon constructive service of process would deprive a defendant of his property without due process of law,” see Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227 (Fla.1986) (citing Newton v. Bryan, 142 Fla. 14, 194 So. 282 (1940)), the service attempted in this case also is constitutionally deficient. Service by publication confers only in rem or quasi in rem jurisdiction upon a trial court. Zieman, 578 So.2d at 332. A personal money judgment necessitates in personam jurisdiction over the defendant. See id. at 333.

The fact that Drury 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. See Napoleon, 33 So.2d at 718 (“The fact that the defendant had actual knowledge of the attempted service cannot be relied upon to justify ... service by publication”). Section 48.161 of *953the Florida Statutes delineates the proper method for achieving substituted service of process upon a person concealing his whereabouts in this state. See Hernandez v. State Farm Mut. Auto. Ins. Co., 32 So.3d 695, 699 (Fla. 4th DCA 2010). We reverse the order on appeal with the direction to the trial court to vacate the final judgment.

Reversed and remanded for further proceedings.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Demir v. Schollmeier, 273 So. 3d 59 (Fla. 3d DCA 2018)
    …ection 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. Nat’l Auto Lenders, Inc., 83 So. 3d 951 (Fla. 3d DCA 2012). 1 Although plaintiff conceded on the merits that substitute service failed to acquire personal jurisdiction over defendant, plaintiff nevertheless contends that defendant failed to properly preserve the issue below and thus wa…
  • Milanick v. State, 147 So. 3d 34 (Fla. 5th DCA 2014)
    …an be served within [Florida].” § 49.011(1), Fla. Stat. (2013). The case law is clear, however, that constructive service by publication under this statute cannot confer a court with jurisdiction over a person. See Drury v. Nat’l Auto Lenders, Inc., 83 So. 3d 951, 952 (Fla. 3d DCA 2012) (“Service by publication confers only in rem or quasi in rem jurisdiction upon a trial court. A personal money judgment necessitates in personam jurisdiction over the defendant.” (citation omitted)); Huguenor v. Huguenor, 420…
  • Quisenberry v. Bates (Fla. 4th DCA 2023)
    …d, 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, and the resulting default, are void and “constitutionally deficient.” Id. Conclusion We reverse the court’s order denying Quisenberry’s motion to quash and motion to vacate the clerk’s default. W…

Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw