ALEXANDER MILANICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2014-05-16
No. 5D13-4493
TORPY, C.J., and EVANDER, J„ concur.
147 So. 3d 34 Florida District Court of Appeal, Fifth District (2014) Positive Treatment
Cited by 2 cases

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Synopsis

Alexander Milanick appealed the denial of his motion to quash an action brought by the State to recover costs and fees from a prior Ethics Commission order. The court reversed, holding that constructive service by publication cannot confer personal jurisdiction when the State seeks a personal money judgment against a defendant.


Holding

Constructive service by publication cannot confer personal jurisdiction over a defendant when the State seeks a personal money judgment. Service by publication confers only in rem or quasi in rem jurisdiction, not in personam jurisdiction. Therefore, the trial court lacked jurisdiction over Milanick and the motion to quash should have been granted.


Headnotes

[1] Service by publication under section 49.011(1), Florida Statutes, cannot confer personal jurisdiction over a defendant.

[2] A civil action brought to recover costs and fees awarded by the Florida Commission on Ethics is an in personam action.

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Key Quotes

“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.”

Establishes the critical distinction that service by publication cannot support personal jurisdiction needed for personal money judgments

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Facts & Procedural History

The State brought a civil action against Milanick pursuant to Florida Statutes section 112.317(7) to recover costs and fees awarded by the Florida Com…

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Opinion of the Court
COHEN, J.

COHEN, J.

Alexander Milanick appeals a non-final order denying his motion to quash and dismiss the proceeding. He argues that the case should have been dismissed based on the State’s failure to personally serve him. We agree and reverse.

The instant action was brought by the State pursuant to section 112.317(7), Florida Statutes, which authorizes the State to bring a civil action to recover costs and fees awarded by the Florida Commission on Ethics. Previously, the Florida Commission on Ethics had entered an order against Milanick with which Milanick never complied.

The State attempted to personally serve Milanick but was unsuccessful; thus, it constructively served him instead. Mi-lanick filed a notice of special appearance and motion to quash and dismiss the proceeding on the ground that he had not been personally served with process and that the trial court lacked jurisdiction over him. The State responded by admitting that it failed to personally serve Milanick *35and 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. 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 So.2d 344, 346 (Fla. 5th DCA 1982) (“[The defendant] may very well be subject to the provisions of Florida’s long-arm statute, but in personam jurisdiction cannot be obtained over her by service by publication.”); Shannon v. Great S. Equip. Co., 326 So.2d 19, 20 (Fla. 2d DCA 1976) (“As noted, the original action against Shelter sounded In personam. 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. Huguenor, 420 So.2d at 346.

Here, the State concedes that it is proceeding in personam rather than in rem or quasi in rem. Thus, because the State never personally served Milanick, we are compelled to reverse.

REVERSED and REMANDED.

TORPY, C.J., and EVANDER, J„ concur.


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Citator

Cited By

  • Archer v. U.S. Bank Nat'l Ass'n, 220 So. 3d 477 (Fla. 5th DCA 2017)
    …g 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. State, 147 So. 3d 34, 35 (Fla. 5th DCA 2014). Rather, constructive service confers only in rem jurisdiction on the trial court. See Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225, 1227 (Fla. 1986). Indeed, personal jurisdiction is not required to initiat…

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