PAUL ARCHER, APPELLANT,
v.
U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE OF SW REMIC TRUST 2014-1, APPELLEE
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Paul Archer appealed the trial court's denial of his motion to quash constructive service of process in a mortgage foreclosure action. The Fifth District Court of Appeal dismissed the appeal for lack of jurisdiction, holding that a nonfinal order denying a motion to quash constructive service is not appealable absent a determination of personal jurisdiction over the defendant.
The order is not appealable and the appellate court lacks jurisdiction. An order denying a motion to quash constructive service is not directly appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) absent a determination regarding personal jurisdiction, and the denial of a motion to dismiss based on untimely service similarly does not determine jurisdiction of the person and is therefore not directly appealable.
[1] A nonfinal order denying a motion to quash constructive service of process is not appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) unless it determi…
[2] Constructive service by publication under Florida Statutes section 49.011(1) confers only in rem jurisdiction, not personal jurisdiction.
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the fundamental principle that constructive service confers only in rem jurisdiction, not personal jurisdiction
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Join FLexlaw to unlock all legal intelligenceU.S. Bank National Association filed an in rem foreclosure action against property subject to a mortgage executed by Archer. After personal service on…
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Paul Archer appeals from a nonfinal order denying his motion to quash constructive service of process, in this foreclosure case. Because the nonfinal order did not determine personal jurisdiction over Archer, it is not appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), and this Court lacks jurisdiction. We therefore dismiss the appeal.
This case began when an in rem action to foreclose was filed against property that was subject to a mortgage executed by Archer. U.S. Bank National Association was ultimately substituted as party plaintiff in this case. After personal service was attempted on Archer, to no avail, U.S. Bank constructively served Archer by publication. Archer moved to quash the constructive service -based on- U.S. Bank’s alleged failure to comply with the. diligent search requirements set forth in sections 49.031 and 49.041, Florida Statutes (2013). The trial court denied the motion to quash. The court’s order does not refer to personal jurisdiction, and no assertion of personal jurisdiction was made in the trial court.
This Court has previously held that, absent a determination regarding personal jurisdiction, the denial of a motion to quash constructive service is not an appealable nonfinal order. See, e.g., Koniecpolski v. Stelnicki, 571 So,2d 577, 578 (Fla. 5th DCA 1990) (dismissing appeal because Florida Rule of-Appellate Procedure 9.130(a)(3)(C)(i) does not vest jurisdiction in this Court over nonfinal order denying motion to quash constructive service of process in foreclosure proceeding 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 initiate a foreclosure action because foreclosure proceedings instituted against the subject *479property are in rem proceedings.1 See, e.g., NCNB Nat’l Bank of Fla. v. Pyramid Corp., 497 So.2d 1353, 1355 (Fla. 4th DCA 1986); see also § 49.011(1), Fla. Stat. (2013).
Additionally, Archer’s motion to dismiss, filed in conjunction with the motion to quash, alleged that dismissal was appropriate because the service was untimely under Florida Rule of Civil Procedure 1.070(j). However, “an order denying a motion to dismiss that is based on untimely service under rulel.070(j) is not an order which determines ‘jurisdiction of the person’ and therefore is not directly ap-pealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i).” Traylor Bros., Inc. v. Shipman, 758 So.2d 91, 91 (Fla. 2000).
Thus, this Court lacks jurisdiction because the rules of appellate procedure do not permit review of this nonfinal order.
DISMISSED.
SAWAYA and EDWARDS, JJ., concur.
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Amezcua v. Cortez, 314 So. 3d 666 (Fla. 3d DCA 2021)
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Benitez v. Wilmington Sav. Fund Soc'y, FSB, 232 So. 3d 1162 (Fla. 5th DCA 2017)…[*1163] ON REHEARING PER CURIAM. We grant rehearing in this case and withdraw the previously-issued opinion. We substitute the following in its stead. The appeal is dismissed pursuant to Archer v. U.S. Bank National Ass’n, 220 So. 3d 477, 478-79 (Fla. 5th DCA 2017). DISMISSED. SAWAYA, WALLIS, and EISNAUGLE, JJ., concur.…
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Hasmukhbai Patel v. Wilmington Sav. Bank, 249 So. 3d 778 (Fla. 5th DCA 2018)…did not rule that it obtained personal jurisdiction over the Patels, but instead determined only that it had in rem jurisdiction, this Court lacks jurisdiction over this nonfinal order and we dismiss the appeal. See Archer v. U.S. Bank Nat'l Ass'n, 220 So. 3d 477, 478-79 (Fla. 5th DCA 2017) (dismissing appeal because nonfinal order denying mortgagor's motion to quash constructive service of process did not refer to personal jurisdiction and no assertion of personal jurisdiction was made in trial court); Koni…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225 (Fla. 1986)
- NCNB Nat'l Bank OF Fla. v. Pyramid Corp., 497 So. 2d 1353 (Fla. 4th DCA 1986)
- Marek Koniecpolski v. Stelnicki, 571 So. 2d 577 (Fla. 5th DCA 1990)
- Traylor Bros., Inc. v. Tora Shipman, 758 So. 2d 91 (Fla. 2000)
- Carter v. Kingsley Bank, 587 So. 2d 567 (Fla. 1st DCA 1991)
- Milanick v. State, 147 So. 3d 34 (Fla. 5th DCA 2014)