Third District Court of Appeal

State of Florida 

Opinion filed August 31, 2022.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-156

Lower Tribunal No. 20-13427

________________

Josh Metnick,

Appellant,

vs.

Right of the Dot, LLC,

Appellee.

An Appeal from a non-final order from the Circuit Court for MiamiDade County, Carlos Guzman, Judge.

The Brownlee Law Firm, P.A., and Michael M. Brownlee (Orlando), 

for appellant.

GrayRobinson, P.A., and Jack R. Reiter and Francesca Russo; and 

Greenberg & Lieberman, LLC, and Stevan Lieberman (Washington, DC),

for appellee.

Before HENDON, GORDO, and BOKOR, JJ. 

HENDON, J.
2

The defendant below, Josh Metnick (“Metnick”), appeals from an 

“Order Denying Defendant’s Motion to Vacate Default and Default Final 

Judgment as Void, Motion to Quash Service of Process for Want of 

Personal Jurisdiction,” entered in favor of the plaintiff below, Right of the 

Dot, LLC (“ROTD”). We reverse the order under review because service of 

process by publication under section 49.011, Florida Statutes (2021), is not 

authorized in an action seeking monetary damages for an alleged breach of 

contract. 

Facts:

ROTD filed suit against Metnick, alleging in the First Amended 

Complaint as follows. Metnick, a resident of Illinois, entered into a contract 

with ROTD. Pursuant to the contract, Metnick agreed to submit to ROTD 

the domain name ‹ILLINOIS.COM› (“Domain”) for ROTD to sell at auction, 

and Metnick agreed to pay ROTD 25% of the sale price as a brokerage fee 

commission. Thereafter, Metnick sent out a general e-mail informing people 

in the domain industry that he was placing the Domain on the market with 

ROTD’s assistance. Metnick sold the Domain during the Exclusive Sales 

Period for $230,765, but Metnick has refused to pay ROTD the $57,691.25 

brokerage fee due under the contract. 
3

The First Amended Complaint sets forth one count labeled as 

“COUNT 1 – BREACH OF CONTRACT” (emphasis in original), asserting 

that as a result of Metnick refusing to pay the brokerage fee owed under 

the contract, “Metnick has breached the contract with ROTD.” In the 

“Wherefore” clause, ROTD requested that the trial court enter judgment in 

its favor and against Metnick in the amount of $57,691.25 plus attorney’s 

fees and costs. ROTD attached to the operative complaint its contract with 

Metnick, and Metnick’s e-mail stating it was taking the Domain to market 

again, but this time with the help of GoDaddy and Martin Cahn, who is a 

domain broker with ROTD. The parties’ contract provides that ROTD has

the right to enforce the contract through a breach of contract action or “any 

other remedies that ROTD may have at law or in equity.”

The summons was issued. After numerous failed attempts to 

personally serve Metnick, ROTD filed an affidavit of non-service of the 

summons and the First Amended Complaint, setting forth the attempts to 

personally serve Metnick. ROTD then filed an amended motion for leave to 

serve process by publication, mail, and e-mail, attaching the process 

server’s affidavit of non-service, and asserting the attempts and actions 

taken in attempting to personally serve Metnick. The trial court entered an 

order granting ROTD’s motion for service by publication, mail, and e-mail. 
4

Despite being served by publication, Metnick failed to file a response 

to the First Amended Complaint. A default was entered against Metnick. 

ROTD then moved for a default final judgment, and the trial court entered a 

default final judgment against Metnick, awarding ROTD $57,691.25 in 

damages, $10,023 in attorney’s fees, and $15 in costs, totaling $67,001.25.

Metnick filed a limited appearance to contest personal jurisdiction, 

and filed a motion to vacate the default and the default final judgment as 

void, and a motion to quash service of process for want of personal 

jurisdiction. Metnick argued that section 49.011 provides for service of 

process by publication only in certain enumerated types of cases, which 

does not include breach of contract cases seeking monetary damages. 

Further, even if service of process by publication was proper, the service 

did not comply with the statute.

Following ROTD’s response, the trial court conducted a hearing. The 

trial court entered an order denying Metnick’s motion to vacate and quash 

service of process. Metnick’s appeal followed. 

Standard of Review:

A trial court’s ruling as to personal jurisdiction is reviewed de novo. 

See Wendt v. Horowitz, 822 So. 2d 1252, 1256 (Fla. 2002) (stating that a 

trial court’s ruling as to personal jurisdiction is reviewed de novo).
5

Discussion:

Metnick argues that service of process by publication of the First 

Amended Complaint was improper under section 49.011. As such, the trial 

court failed to obtain personal jurisdiction over him, and the default final 

judgment entered against him his void and must be vacated. For the 

reasons that follow, we agree.

Service of process by publication is limited by section 49.011 to 

certain enumerated actions or proceedings. See § 49.011 (“Service of 

process by publication may be made in any court on any party identified in 

s. 49.021 in any action or proceeding: . . . [sections 49.011(1) through (15) 

enumerate the specific actions or proceedings].”). It is undisputed that an 

action for breach of contract seeking monetary damages is not enumerated 

in sections 49.011(1) through (15). See Demir v. Schollmeier, 273 So. 3d 

59, 61 (Fla. 3d DCA 2018) (“[S]ubstituted service by publication under 

section 49.011 is not authorized for this type of action, which sought a 

money judgment premised on an alleged breach of contract[.]”) (footnote 

omitted); see also 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.”).
6

Here, the parties dispute what type of action or proceeding is set forth 

in ROTD’s First Amended Complaint. Metnick argues that ROTD’s First 

Amended Complaint asserts an action for breach of contract seeking 

monetary damages, and therefore, service of process by publication was 

not authorized under section 49.011. In contrast, ROTD argues that at 

common law, an auctioneer obtains an equitable lien. Therefore, although 

the First Amended Complaint is premised on a breach of contract, 

“because ROTD also has a common law lien in equity, and the Contract 

recognized ROTD’s equitable rights to pursue a commission from any 

proceeds Metnick received from the sale of the domain name, service by 

publication was authorized as a matter of law” under section 49.011(1). 

Section 49.011(1) recognizes the right to service by publication “[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 this state.”

We agree with the position taken by Metnick. ROTD’s First Amended 

Complaint does not seek or mention the enforcement of an equitable lien or 

“auctioneer’s lien.” Rather, the operative complaint seeks monetary 

damages for an alleged breach of contract. Assuming that Florida common 

law permits an auctioneer to obtain an equitable lien to secure payment of 
7

a commission1 and despite that the parties’ contract provides that ROTD 

may seek “any other remedies that ROTD may have at law or in equity,” 

the only relief sought by ROTD in the First Amended Complaint was 

damages for Metnick’s alleged breach of contract. Thus, under these 

circumstances, service of the First Amended Complaint by publication was 

not authorized under section 49.011. As personal jurisdiction was not 

obtained over Metnick, the default final judgment is void, and the trial court 

erred by denying Metnick’s motion to vacate the default and the default 

final judgment and to quash service of process. See Demir, 273 So. 3d at 

62 (stating that a trial court’s denial of a rule 1.540 motion to vacate is 

ordinarily reviewed for an abuse of discretion, however, when the entered 

judgment is void, the trial court has no discretion, and is required to vacate 

the judgment). Accordingly, we reverse the order under review.

As we have reversed the order under review because section 49.011 

does not authorize service of process by publication for an action seeking 

monetary damages for an alleged breach of contract, we do not need to 

address Metnick’s remaining argument that ROTD failed to establish that it 

conducted a diligent search to locate Metnick to personally serve him.

Reversed and remanded for further proceedings.

1 We take no position as to whether Florida’s common law recognizes the 

imposition of an “auctioneer’s lien” for unpaid commissions.