Bedford Computer Corp. v. Graphic Press, Inc.

• Decision Date: 06 March 1986
• Docket Number: No. 65921,65921
• Parties: 11 Fla. L. Weekly 87 BEDFORD COMPUTER CORP., Appellant, v. GRAPHIC PRESS, INC., Appellee.
• Court: Florida Supreme Court

Page 1225

484 So.2d 1225

11 Fla. L. Weekly 87

BEDFORD COMPUTER CORP., Appellant, v. GRAPHIC PRESS, INC., Appellee.

No. 65921.

Supreme Court of Florida.

March 6, 1986.

Marc Rohr, Fort Lauderdale and Roger Jay Sharp, Manchester, N.H., for appellant.

Irving J. Whitman and Douglas M. Kramer of Whitman, Wolfe, Gross, Schaffel & Kramer, P.A., Miami and Jay M. Niederman, Manchester, N.H., for appellee.

PER CURIAM.

The United States Court of Appeals for the First Circuit has petitioned this Court for review of a question of law certified by it to be determinative of the cause and for which there is no controlling precedent from this Court. We have jurisdiction. Art. V, § 3(b)(6), Fla. Const.

A statement of the relevant facts involved in this litigation, taken from the Addendum to the Certification from the First Circuit, is as follows:

The Graphic Press, Inc. ("Graphic"), a Florida corporation, brought an action for breach of contract against Bedford Computer Corporation ("Bedford") in the 17th Judicial Circuit of Broward County, Florida, on November 24, 1982. The action arose from Graphic's purchase of defective computer equipment which Bedford had allegedly agreed to repurchase, later failing to do so. Bedford is a New Hampshire corporation with its principal place of business in Bedford, New Hampshire. Because Graphic determined that Bedford was not qualified to do business in Florida and had no agent in Florida upon whom process could be served, Graphic undertook to make service upon it by publication [pursuant to chapter 49, Florida Statutes (1983) ] Publication was made in the Broward Review and Business Record, a newspaper published in the county where the court was located, once a week for four consecutive weeks. Copies of the complaint and of the publication were sent by certified mail to the defendant corporation at its correct business address in New Hampshire, and Bedford's attorney thereafter corresponded with plaintiff's attorney concerning the case. It is not asserted that Bedford was not fully apprised, in fact, of the pending Florida action.

The parties were unable to settle their differences. Defendant did not file an answer in the Florida court, and a default judgment was entered against it on May 16, 1983. Plaintiff then filed an action in the United States District Court for the District of New Hampshire seeking to enforce the judgment. Defendant answered the federal complaint claiming that the judgment was void because the Florida court lacked in personam jurisdiction. As there was no controversy on the facts, both parties moved for summary judgment. The district court ruled in favor of the plaintiff.

On appeal, the First Circuit found the matter sufficiently in doubt to warrant certifying the following questions to this Court (1) Can a Florida court obtain jurisdiction in personam over a non-resident corporation through constructive service of process under Fla.Stat. § 49.011, notice having been given not only by publication within Florida but also by certified mail addressed to defendant's correct out-of-state address (and actually received there by defendant)?

(2) If the answer to question (1) is in the negative, and assuming notice of the kind mentioned in that question is provided, would a Florida court obtain jurisdiction in personam over a non-resident corporation under some theory of Florida law other than is provided by Fla.Stat. §§ 49.011 et seq.?

We answer certified question (1) in the negative. The object of process is to warn the defendant that an action or proceeding has been commenced against him by the plaintiff, that he must appear within a time and at a place named and make such defense as he has, and that, in default of his so doing, a judgment will be asked or taken against him in a designated sum or for the other relief specified. Gribbel v. Henderson, 151 Fla. 712, 10 So.2d 734 (1942); Arcadia Citrus Growers Association v. Hollingsworth, 135 Fla. 322, 185 So. 431 (1938). Personal service upon a defendant is the most effective method to give notice to a defendant that a suit has been commenced against him.

In some instances, such as when a defendant is a nonresident of the state of Florida or if a resident is absent from the state or concealed so that personal service cannot be obtained, our statutes authorize constructive service by publication. Section 49.021, Florida Statutes (1983), states: "Where personal service of process cannot be had, service of process by publication may be had upon any party ..." Service by publication is less likely to provide effective notice to a defendant than personal service; thus, service by publication should only be used when necessary. See Burton v. Burton, 448 So.2d 1229 (Fla. 2d DCA 1984); Shefer v. Shefer, 440 So.2d 1319 (Fla. 3d DCA 1983); Taylor v. Lopez, 358 So.2d 69 (Fla. 3d DCA 1978).

If constructive service must be used, then it confers only in rem or quasi in rem jurisdiction upon the court. A personal judgment against a defendant based upon constructive service of process would deprive a defendant of his property without due process of law. Newton v. Bryan, 142 Fla. 14, 194 So. 282 (1940). The courts of this state have followed this rule in the context of contract disputes such as the one here. Gaskill v. May Brothers, Inc., 372 So.2d 98 (Fla. 2d DCA 1979); Shannon v. Great Southern Equipment Co., 326 So.2d 19 (Fla. 2d DCA 1976); Ressler v. Sena, 307 So.2d 457 (Fla. 4th DCA 1975); Clark v. Realty Investment Center, Inc., 252 So.2d 589 (Fla. 3d DCA 1971).

The fact that the defendant received actual notice of this lawsuit does not render the service of process valid. This Court held in Napolean B. Broward Drainage District v. Certain Lands Upon Which Taxes Were Due, 160 Fla. 120, 33 So.2d 716, 718 (Fla.1948):

It is established law that when substituted or constructive service is substituted in place of or for personal service a strict and substantial compliance with the provisions of said statute must be shown in order to support the judgment or decree based on such substituted or constructive service.... The inquiry must be as to whether the requisites of the controlling statute have been complied with.... The fact that the defendant had actual knowledge of the attempted service cannot be relied upon to justify the failure of the plaintiff to strictly observe and substantially comply with a statute authorizing service by publication.

Accord, Panter v. Werbel-Roth Securities, Inc., 406 So.2d 1267 (Fla. 4th DCA 1981).

We also answer certified question (2) in the negative. Service by publication, even when it is accompanied by certified mail addressed to defendant's correct out-of-state address (and actually received there by defendant) is not enough to confer in personam jurisdiction over a non-resident corporation. There is no statutory provision authorizing service by mail, certified or otherwise, in Florida. We would point out to our legislature that there is no difference as far as defendant's apprisal of the pending lawsuit between the postal service personally delivering the complaint to the defendant's door and the sheriff personally doing the same. For this reason, we would suggest that the Florida legislature provide for service upon nonresidents of this state who fall within the jurisdiction of a Florida court by virtue of any of the long-arm statutes by registered or certified mail without the state. See M. Rohr, Personal Jurisdiction in Florida: Some Problems and Proposals, 5 Nova L.J. 365, 371, 463 (1981).

At this time, however, personal service upon the defendant is the only way to obtain a valid enforceable in personam judgment against him. Section 48.193(1)(g) would submit the defendant in the instant case to the jurisdiction of this court. However, section 48.194, Florida Statutes (1983), authorizes only personal service to be made on persons outside of this state. No showing has been made in this case why the defendant could not have been personally served in New Hampshire pursuant to section 48.194.

It is so ordered.

OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

BOYD, C.J., concurs in result with an opinion.

ADKINS, J., dissents with an opinion.

BOYD, Chief Justice, concurring in the result.

I concur in the decision of the Court holding that under sections 49.011 and 49.021, Florida Statutes (1983), service of process by publication is not available under the facts of this case. While it is conceded that the defendant committed acts subjecting it to the jurisdiction of the Florida court under section 48.193(1)(g), Florida Statutes (1983), the method of service of process used in this case was legally inadequate to confer personal jurisdiction over the defendant.

Because the method of service of process was inadequate under the facts of the case, I agree that both certified questions must be answered in the negative. But it should be noted that had personal service of process been effected upon the defendant, the court could legally have asserted in personam jurisdiction over the defendant under the statutory authority found in section 48.193(1)(g).

I do not agree with the majority opinion's suggestion to the legislature that a change in the law is indicated or that the present provisions on service of process on nonresidents are inadequate. If it is advisable to dispense with the requirement of personal service of process in order to obtain in personam...