NANCY GASKILL, APPELLANT,
v.
MAY BROTHERS, INC., APPELLEE
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Nancy Gaskill appeals from an order denying her motion to set aside a default judgment entered by May Brothers, Inc. The court reversed, holding that the trial court lacked personal jurisdiction over Gaskill because service of process was insufficient and the complaint alleged no basis for jurisdiction under Florida's long-arm statute.
The court reversed the judgment, holding that the trial court lacked personal jurisdiction over Gaskill because: (1) service by personal service in Illinois could not confer in personam jurisdiction without a nexus between the cause of action and Florida contacts; (2) service by publication could not establish in rem jurisdiction because the complaint did not allege facts supporting constructive service under Section 49.011; and (3) quasi in rem jurisdiction was not established because the complaint did not seek to seize Gaskill's property.
[1] A court lacks jurisdiction over a person when service of process is insufficient.
[2] Florida's long-arm statute requires a direct nexus between the cause of action and the acts enumerated in the statute for in personam jurisdiction.
Previewing 2 of 5 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“The foregoing provision obviously relates only to those cases in which there is a direct affiliation or nexus between the basis of the controversy and the Florida property itself.”
Establishes the requirement that long-arm jurisdiction under Section 48.193 requires a nexus between the cause of action and Florida contacts.
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Join FLexlaw to unlock all legal intelligenceMay Brothers filed a two-count complaint against Gaskill for damages based on open account and account stated. Appellee attempted service in Illinois,…
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GRIMES, Chief Judge.
This is an appeal from an order denying a motion to set aside a default judgment.
The appellee filed a two-count complaint for damages against appellant upon theories of open account and account stated. Appellee then tried to have the appellant personally served within the State of Illinois pursuant to Section 48.194, Florida Statutes (1977). The Illinois deputy’s affidavit indicates that when he went to the address specified by the appellee, the person inside the house declined to accept service. There is no indication that the appellant was that person.
Appellee next sought service of process by publication, following the procedures set forth in Chapter 49, Florida Statutes. When appellant failed to file an appearance, appellee obtained a default judgment totalling $3,051.58. Four months later, appellant, by special appearance, requested a stay of execution and moved to set aside the judgment for lack of jurisdiction over her person. Following a hearing the court denied the motion to set aside the judgment and permitted execution to proceed.
The appellant contends that the court never had the requisite jurisdiction over her person upon which to predicate the judgment because the service of process upon her was insufficient. We agree.
Appellee justified its attempt to secure personal service on appellant in Illinois upon the following portions of Section 48.-193, Florida Statutes (1977):
48.193 Acts subjecting persons to jurisdiction of courts of state.
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state.
(c) Owns, uses, or possesses any real property within this state.
(d) Contracts to insure any person, property, or risk located within this state at the.time of contracting.
However, the complaint makes no reference to the cause of action having arisen out of any of the circumstances described in the statute. Explaining when this statute may be used to obtain in personam jurisdiction, our court in Griffin v. Zinn, 318 So. 2d 151 (Fla. 2d DCA 1975), said:
The foregoing provision obviously relates only to those cases in which there is a direct affiliation or nexus between the basis of the controversy and the Florida property itself .
Therefore, even if the deputy had been able to effect personal service upon appellant in Illinois, there would have been no in person-am jurisdiction over her with respect to this complaint.
The appellee’s efforts to obtain in rem jurisdiction by constructive service 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. Chapter 49 does not encompass simple actions ex contractu. Ressler v. Sena, 307 So. 2d 457 (Fla. 4th DCA 1975).
Finally, the complaint was not sufficient to establish quasi in rem jurisdiction directed against appellant’s property. Shannon v. Great Southern Equipment Company, 326 So. 2d 19 (Fla. 2d DCA 1976). The complaint did not seek to seize appellant’s property in order to satisfy appellee’s claim. In fact, the first mention of appellant’s property in the entire record occurred when the appellant moved to stay execution on the judgment.
A judgment against one over whom jurisdiction has not been obtained is void. Valdosta Milling Co. v. Garretson, 54 So. 2d 196 (Fla.1951). Therefore, the judgment against appellant should have been set aside. Fla.R.Civ.P. 1.540(b).
REVERSED.
HOBSON and SCHEB, JJ., concur.
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Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225 (Fla. 1986)…prive a defendant of his property without due process of law. Newton v. Bryan, 142 Fla. 14, 194 So. 282 (1940). The courts of this state have followed this rule in the context of contract disputes such as the one here. Gaskill v. May Brothers, Inc., 372 So. 2d 98 (Fla. 2d DCA 1979); Shannon v. Great Southern Equipment Co., 326 So. 2d 19 (Fla. 2d DCA 1976); Ressler v. Sena, 307 So. 2d 457 (Fla. 4th DCA 1975); Clark v. Realty Investment Center, Inc., 252 So. 2d 589 (Fla. 3d DCA 1971). The fact that the defend…
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Wynn v. AETNA Life Ins. Co. & Marilyn Ann Wynn, 400 So. 2d 144 (Fla. 1st DCA 1981)…. (1979).* The use of this statute requires that Aetna must have alleged a valid cause of action for the exercise of long arm jurisdiction pursuant to § 48.193, Fla.Stat. (1979). See § 48.193(2) and (3), Fla.Stat.; Gaskill v. May Bros., [*146] Inc., 372 So. 2d 98, 99 (Fla. 2d DCA 1979); P.S.R. Assoc. v. Artcraft-Health, 364 So. 2d 855, 857 (Fla. 2d DCA 1978). The failure to adequately allege a basis for long arm jurisdiction under § 48.193, Fla.Stat., voids any service of process made pursuant to § 48.-194,…
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Huguenor v. Huguenor, 420 So. 2d 344 (Fla. 5th DCA 1982)…obtain service of process under it, McAlice v. Kirsch, 368 So. 2d 401 (Fla.3d DCA 1979). The complaint must allege sufficient facts to show a cause of action for which constructive service is allowed under the statute, Gaskill v. May Brothers, Inc., 372 So. 2d 98 (Fla.2d DCA 1979). The action here is one for money damages based on the tort of conversion. It is simply not the type of action where service of process may be obtained by publication. See, e.g., Alan Restaurant Corp. v. Walder, 399 So. 2d 1128 (F…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Valdosta Milling Co. v. Garretson, 54 So. 2d 196 (Fla. 1951)
- Zelma M. Griffin v. Zinn, 318 So. 2d 151 (Fla. 2d DCA 1975)
- Ressler v. Sena, 307 So. 2d 457 (Fla. 4th DCA 1975)
- Thompson v. State, 326 So. 2d 19 (Fla. 2d DCA 1976)