Bedford Computer Corp. v. Graphic Press, Inc., No. 65921

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; BOYD; ADKINS; BOYD; ADKINS
• Citation: 11 Fla. L. Weekly 87,484 So.2d 1225
• Docket Number: No. 65921
• Decision Date: 06 March 1986
• Parties: 11 Fla. L. Weekly 87 BEDFORD COMPUTER CORP., Appellant, v. GRAPHIC PRESS, INC., Appellee.

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.

Page 1226

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:

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(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...