DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ROGER F. QUISENBERRY,

Appellant,

v.

DOUGLAS M. BATES,

Appellee.

No. 4D20-2252

[September 7, 2022]

Appeal of non-final order from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Carol-Lisa 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.

KUNTZ, 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 reinstated 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 deficient, we also reverse the 

circuit court’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 contract 
2

and unjust enrichment. After a process server made several attempts to 

serve Quisenberry with the complaint, Bates submitted a sworn statement 

for constructive service. Bates 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 complaint. 

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 did not confer 

personal jurisdiction upon 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 nonresident”).

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 improper 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 49.011 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 2018).
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 decision.” 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

We 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.

Reversed and remanded.

WARNER and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.