### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

ROGER F. QUISENBERRY
, Appellant,

v.

DOUGLAS M. BATES
, Appellee

.

No. 4D 20

- 2252

[ September 7, 2022 ]

Appeal of non

- final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Carol

- L isa Phillips , Judge; L.T. Case No.

CACE18

- 016637

.

Andrew M. Schwartz of Andrew M. Schwartz, P.A.

, Boca Raton, for appellant.

Douglas M. Bates, Lauderdale by the Sea, and Jennifer S. Carroll of Law Offices of Jennifer S. Carroll, P.A., Jupiter, for appellee.

K UNTZ , J

.

Roger Quisenberry appeals the circuit court’s order denying his motion to quash service of process and vacate a clerk’s default. We originally dismissed the appeal as to the denial of the motion to vacate the clerk’s default but allowed the appeal to proceed as to the denial of the motion to quash service of process. After briefing

, we vacated our earlier dismissal

order and rein stated the appeal “as to the [circuit court’s] order denying the appellant’s motion to vacate the clerk’s default.” We now reverse the

circuit court’s order denying Quisenberry ’s motion to quash service of process. Because service of process was deficien t

, we also reverse the

circuit c ourt’s order denying Quisenberry ’s motion to vacate the clerk’s

default.

Background

Douglas Bates represented Quisenberry in a suit to foreclose a code

enforcement lien. A dispute arose over the payment of legal fees

, and Bates filed a complaint seeking damages from Quisenberry for breach of contract2 and unjust enrichment. After a process serve r made several attempts to

serve Quisenberry with the complaint, Bates submitted a sworn statement

for constructive service. Bate s stated that Quisenberry was concealing himself, and Bates did not know of anyone else in the state upon whom

service could be made. A notice of action was issued which stated that a default would be entered if Quisenberry did not respond to the complain t.
The notice of action was mailed to Quisenberry and published in the Broward Daily Business Review once a week for four straight weeks. A

clerk’s default was later entered because Quisenberry did not respond to

the notice of action.

One year later, an attorney filed a notice of limited appearance on Quisenberry’s behalf. On the same day, the attorney moved to vacate the clerk’s default and quash service of process. Quisenberry maintained that service of process should be quashed, and that the clerk’s default should be vacated, because constructive service by publication d id not confer personal jurisdiction up on the court in a breach of contract case. He argued that if Bates believed Quisenberry was concealing himself to avoid personal service, he should have served him under section 48.161, Florida Statutes (2020) (“Method of substituted service on nonresiden t”)

.

Bates did not dispute that constructive service was an insufficient basis

for the circuit court to assert personal jurisdiction over Quisenberry. Instead, he argued that Quisenberry waived any challenge to service of process or personal jurisdiction by avoiding personal service and then failing to timely respond to the notice of action. The circuit court denied the motion without explanation.

Analysis

As in the circuit court, Bates acknowledges constructive service of

process was im proper but argues Quisenberry waived his challenge. We disagree.

Constructive service by publication can be used only in the types of cases listed in section 49.011, Florida Statutes (2020). “If constructive service [is] used, . . . it confers only in rem or quasi in rem jurisdiction upon the court.” Bedford Comput. Corp. v . Graphic Press, Inc. , 484 So. 2d 1225, 1227 (Fla. 1986). It does not confer in personam jurisdiction sufficient to support a personal money judgment. See id

. For that reason,

“section 4 9.011 is not authorized for this type of action, which sought a money judgment premised on an alleged breach of contract, breach of fiduciary duty, and breach of statutory duty of loyalty and care.” Demir v.

Schollmeier , 273 So. 3d 59, 61 (Fla. 3d DCA 201 8).3 Constructive service was not authorized and , as a result, the fact that Quisenberry “likely was evading personal service of process and might even have had actual knowledge of the existence of the action against him is legally irrelevant to our decisio n.” Drury v. Nat ’ l Auto Lenders, Inc. , 83 So. 3d 951, 952 (Fla. 3d DCA 2012). The service of process, and the resulting default, are void and “constitutionally deficient

. ” Id.

Conclusion

W e reverse the court’s order denying Quisenberry’s motion to quash

and motion to vacate the clerk’s default. We remand for further proceedings

, including allowing Bates the opportunity to serve Quisenberry in accordance with Florida law.

Reverse d and remand ed

.

W ARNER and F ORST , JJ., concu r.

* * *

Not final until disposition of timely filed motion for rehearing.