REG B. MEILIUNAS, APPELLANT,
v.
JUANITA O'LEARY, APPELLEE
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.
Appellant challenged an order denying his motion to quash service of process and vacate a default judgment in a promissory note foreclosure action. The court reversed, holding that service by publication was not authorized for suit on a promissory note under Florida law, and the affidavit supporting constructive service failed to comply with statutory requirements, rendering the trial court's judgment void for lack of jurisdiction.
Service by publication was not available for suit on a promissory note because such suits were not listed among the types of cases authorized for service by publication under section 49.011, Florida Statutes. Additionally, the affidavit was insufficient because it used the term 'address' instead of 'residence' and failed to state whether appellant's residence was known or unknown.
[1] Service by publication pursuant to Chapter 49, Florida Statutes, is only available in the types of cases expressly listed in section 49.011, Florida Statutes.
[2] A simple suit to recover judgment on a promissory note is not a type of case for which service by publication is authorized under Chapter 49, Florida Statutes.
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“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. Suit on a promissory note did not make the list.”
Establishes that service by publication is limited to enumerated case types and promissory note suits are excluded.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellee filed a complaint to recover judgment on a promissory note, alleging execution in Broward County and appellant's failure to pay. Appellee sou…
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.
Explore caselaw by topic → Browse Jurisdiction Over Defendant cases and more on FLexlaw
DOWNEY, Judge.
Appellant seeks review of an order denying his motion to quash service of process and to vacate a final judgment after default.
Appellee instituted this suit by filing a complaint styled “COMPLAINT TO FORECLOSE A PROMISSORY NOTE.” In fact it is simply a complaint to recover judgment on a promissory note. Appellee sought to serve appellant by constructive service of process pursuant to the provisions of Chapter 49, Florida Statutes. As required by section 49.041, Florida Statutes (1985), appellant’s attorney filed an affidavit in which he stated that he had made diligent search and inquiry to discover the name and residence of the defendant. Although the parties devote almost their entire briefs to the validity of the affidavit, we note a more fundamental error which affects the trial court’s jurisdiction over appellant.
As pointed out above, this is a simple suit on a promissory note. 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 appel-lee 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. Suit on a promissory note did not make the list. Accordingly, we hold that on the complaint filed herein service by publication pursuant to Chapter 49 was not available and that no jurisdiction over appellant was ever obtained.
Furthermore, the affidavit filed by appellant was insufficient to meet the requirements of section 49.041 because in places where appellant’s residence should be provided the term “address” is used. In addition, the affidavit never states whether the appellant’s residence is known or unknown and, if known, where the residence is located. Since the process utilized is invalid, no jurisdiction was conferred upon the trial court and the judgment entered by default was void and the motion to set aside said judgment and quash service of process should have been granted.
Accordingly, the order of February 11, 1985, denying the motion to vacate final judgment and quash service of process is reversed.
HERSEY, C.J., and LEVY, DAVID L., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Nicolette Wiggam v. Bamford, 562 So. 2d 389 (Fla. 4th DCA 1990)…settled in Florida that “[t]o support substituted service of process on a defendant the complaint must allege the jurisdictional requirements prescribed by statute.” Drake v. Scharlau, 353 So. 2d 961, 964 (Fla. 2d DCA 1978); Ferguson v. McWilliams, 483 So. 2d 509 (Fla. 4th DCA 1986). This means that the plaintiff must allege in his complaint the ultimate facts bringing the defendant within the purview of the statute. Fla.R.Civ.P. 1.070(i). Pleading the ultimate facts requires that two requisites be alleged.…1 / 2
-
Drury v. Nat'l Auto Lenders, Inc., 83 So. 3d 951 (Fla. 3d DCA 2012)…ded 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] pe…
-
Fawaz Farouki v. Attel et CIE, 682 So. 2d 1185 (Fla. 4th DCA 1996)…t allege the jurisdictional requirements prescribed by statute. If it fails to do so then a motion to quash process should be granted.” Drake v. Scharlau, 353 So. 2d 961, 964 (Fla. 2d DCA 1978); see Wiggam, 562 So. 2d at 390; Ferguson v. McWilliams, 483 So. 2d 509 (Fla. 4th DCA 1986). In the instant case, Attel substituted service under section 48.181(1), which provides, inter alia, that Florida’s secretary of state can accept service for any former Florida resident who previously conducted business in Flori…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligence