Demir v. Schollmeier

• Decision Date: 28 November 2018
• Docket Number: No. 3D17-2578,3D17-2578
• Citation: 273 So.3d 59
• Parties: Tugend DEMIR, Appellant, v. Georg SCHOLLMEIER, Appellee.
• Court: Florida District Court of Appeals

273 So.3d 59

Tugend DEMIR, Appellant,
v.
Georg SCHOLLMEIER, Appellee.

No. 3D17-2578

District Court of Appeal of Florida, Third District.

Opinion filed November 28, 2018
Rehearing Denied February 19, 2019

Light & Gonzalez, PLLC, and Gregory Light (Plantation), for appellant.

Fowler White Burnett, P.A., and Susan H. Aprill (Fort Lauderdale) and Alexandra L. Tifford, for appellee.

Before SALTER, EMAS and FERNANDEZ, JJ.

EMAS, J.

273 So.3d 61

Tugend Demir, the defendant below, appeals from an order denying his motion to vacate a default final judgment entered against him in the amount of $490,551.52. He argued below, and here on appeal, that because the trial court never acquired personal jurisdiction over him, the subsequent default final judgment was void and not merely voidable. We agree.

Georg Schollmeier, the plaintiff below, was unable to personally serve defendant, and thereafter constructively served defendant by publication under section 49.011. However, and as plaintiff commendably concedes, substituted 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, breach of fiduciary duty, and breach of statutory duty of loyalty and care.¹ See Drury v. Nat'l Auto Lenders, Inc., 83 So.3d 951 (Fla. 3d DCA 2012).

In the instant case, as in Drury,

because a personal judgment against a defendant based upon constructive service of process would deprive a defendant of his property without due process of law, the service attempted in this case also is constitutionally deficient. 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.

Id. at 952 (citing Zieman v. Cosio, 578 So.2d 332, 332-33 (Fla. 3d DCA 1991) ) (additional citations omitted). See also Bedford Comput. Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227 (Fla. 1986) (holding: "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"); New England Rare Coin Galleries, Inc. v. Robertson, 506 So.2d 1161, 1162 (Fla. 3d DCA 1987) (reversing order denying motion to vacate default judgment and holding that service of process by...