IBI STERN DE SCHNEIDER KINARTI, APPELLANT,
v.
TALMA KINARTI, EYAL KINARTI, AND RALTERA PROPERTIES N.V., A NETHERLANDS ANTILLES CORPORATION, APPELLEES
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In a real property dispute, the court reversed a trial court order permitting service of process by publication on a defendant in a claim seeking rescission of a land sale contract or money damages. The court held that such claims are in personam actions that cannot be served by publication, distinguishing them from in rem actions that directly affect real property.
Service of process by publication is improper for claims seeking rescission of a real estate contract or money damages, as these are in personam actions that indirectly affect real property rather than in rem actions that directly affect it. Under Florida law, only in rem actions directly affecting property, such as partition, ejectment, or quiet title actions, may be served by publication.
[1] Actions seeking rescission or cancellation of a contract for the sale of land are in personam actions.
[2] Service of process by publication is improper for in personam actions.
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“there is a distinction between in rem actions which directly affect real property, and in personam actions which indirectly involve real property. Those actions which indirectly involve land, and are therefore in personam in nature, include suits seeking the rescission or cancellation of a contract for the sale of land.”
Establishes the fundamental distinction between in rem and in personam actions that is central to the court's holding.
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Join FLexlaw to unlock all legal intelligenceIbi Stern De Schneider Kinarti was sued in a multi-count complaint involving real property. Count IX of the amended complaint sought rescission of a c…
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LEVY, Judge.
The Defendant below, in an action involving real property, appeals from a non-final Order which found that service of process by publication was adequate and effective as to one count of a multi-count complaint.1 The relevant count of the complaint seeks rescission of a contract involving the sale of real property, or, in the alternative, money damages. The appellant asserts that the claim against her is an in personam action which cannot properly be served by publication. We agree, and reverse that portion of the trial court’s Order which found that valid service of process was made by publication as to Count IX of the Amended Complaint.
It is well-settled, under numerous appellate decisions of this State, that there is a distinction between in rem actions which directly affect real property, and in personam actions which indirectly involve real property. Those actions which indirectly involve land, and are therefore in personam in nature, include suits seeking the rescission or cancellation of a contract for the sale of land.2 See Zieman v. Cosio, 578 So. 2d 332 (Fla. 3d DCA 1991) (holding that service by publication was improper where the prospective buyer in a failed real estate transaction sought money damages and rescission of the real estate contract); Publix Super Markets, Inc. v. Cheesbro Roofing, 502 So. 2d 484, 486 at n. 4 (Fla. 5th DCA 1987) (explaining that “in rem actions in which the land is the res must be distinguished from actions in which the court can effectuate the object of the cause only indirectly by acting on the parties and where such in personam action merely involves land, such as suits for rescission or cancellation or reformation of a contract for sale of land or a deed to land or suits for the specific performance of a contract to convey land.”) (citations omitted); Royal v. Parado, 462 So. 2d 849, 854 (Fla. 1st DCA 1985) (holding that the appellee’s action in invoking the equitable remedy of rescission of a deed “would operate primarily as a coercive, in personam action against the appellants.”). See also Alternative Dev. v. St. Lucie Club & Apt., 608 So. 2d 822 (Fla. 4th DCA 1992); Greene v. A.G.B.B. Hotels, Inc., 505 So. 2d 666 (Fla. 5th DCA 1987).
Count IX of the appellee’s complaint seeks rescission of a contract for the sale of land or, in the alternative, money damages for the alleged fraudulent 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).3 That portion of the trial court’s Order which found that service of process by publication was proper as to Count IX of the Amended Complaint is hereby reversed.
Reversed.
. The same service of process was found to be ineffective as to the remaining counts.
. Litigation directly affecting property would include partition actions, ejectment actions, condemnation actions, quiet title actions, an action to foreclose a mechanic’s lien, or an action to foreclose a mortgage on land. See Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So. 2d 484 (Fla. 5th DCA 1987).
.Based on the foregoing discussion and disposition of this case, there is no need for us to address the appellant’s contention that she was not a named party to Count DÍ of the Amended Complaint.
Cases With Similar Vibessemantic neighbors from the corpus
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- Dade Cnty. Pub. Safety Dep't & CNA Ins. Cos. v. Adams, 502 So. 2d 484 (Fla. 1st DCA 1987)
- Royal v. Parado, 462 So. 2d 849 (Fla. 1st DCA 1985)
- Alternative Dev., Inc. v. ST. Lucie Club & Apt. Homes Condo. Ass'n, Inc., 608 So. 2d 822 (Fla. 4th DCA 1992)
- Greene v. A.G.B.B. Hotels, Inc., 505 So. 2d 666 (Fla. 5th DCA 1987)
- Alden Zieman v. Emilio Cosio, 578 So. 2d 332 (Fla. 3d DCA 1991)