Griffin v. Zinn

• Citation: 318 So.2d 151
• Decision Date: 08 August 1975
• Docket Number: No. 74--1032,74--1032
• Parties: Zelma M. GRIFFIN, Appellant, v. Miriam ZINN, Appellee.
• Court: Court of Appeal of Florida (US)

Page 151

318 So.2d 151

Zelma M. GRIFFIN, Appellant, v. Miriam ZINN, Appellee.

No. 74--1032.

District Court of Appeal of Florida, Second District.

Aug. 8, 1975.

Frank J. Aloia, Adderly, Aloia & Dudley, Cape Coral, for appellant.

Alan S. Kessler, Miami, for appellee.

McNULTY, Chief Judge.

In this interlocutory appeal we review the question of jurisdiction in an action 'quasi in rem' and briefly revisit Pennoyer v. Neff. ¹

Each of the parties hereto is a citizen and resident of Ohio. Plaintiff-appellee obtained an Ohio judgment on a note executed by appellant in Ohio and seeks herein to establish the Ohio judgment in this state and enforce it against certain property here owned by appellant. No attachment or other process issued out of the trial court seizing the property, but defendant-appellant was personally served with process in Ohio, by an Ohio deputy sheriff, pursuant to the Florida 'long arm statute.' ² Apart from irrelevant formalities the complaint itself merely recites that the plaintiff-appellee has obtained a judgment in Ohio against appellant in a sum certain, which remains unpaid; that defendant-appellant owns real estate in Florida, describing it in an attached exhibit; and it prays for 'judgment for damages Against the defendant' (italics ours) in the sum aforesaid. No claim is asserted against the property itself.

Defendant-appellant specially appeared to contest jurisdiction and by this interlocutory appeal seeks review of an adverse ruling. We reverse.

To begin with, we summarily dispose of the precise point upon which the trial judge erroneously based his conclusion. As noted, service of process was made on appellant pursuant to the long arm statute, Supra, which provides in part as follows:

'Acts subjecting Persons to jurisdiction of courts of state:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby Submits that person and, if he is a natural person, his personal representative to the Jurisdiction of the courts of this state for any cause of action Arising from the doing of any of the following:

(c) Owns, uses, or possesses any real property within this state.' (Italics ours.)

The trial judge was obviously of the view that he had In personam jurisdiction over the defendant-appellant pursuant to these provisions simply because an affidavit filed by appellee herein reveals that a part of the consideration for her loan to appellant, which was evidenced by the promissory note on which appellee's Ohio judgment was based, was appellant's promise to dispose of her Florida real estate so that the loan might be repaid. The court apparently thought that these circumstances constitute a basis for an action 'arising from' the ownership of real property within the contemplation of the aforequoted section. Not so. The cause of action herein is the Ohio judgment itself, a chose in action, and has nothing to do with the ownership, use or possession of real estate in Florida. The foregoing provision obviously relates only to those cases in which there is a direct affiliation or nexus between the basis of the controversy and the Florida property itself as, for example, when a plaintiff claims damages resulting from the negligent maintenance of Florida property owned by a non-resident. In such case, the cause of action would clearly Arise from the ownership of that property within the contemplation of the foregoing statute. The statute is inapplicable here.

Notwithstanding, however, because the paramount question herein is jurisdiction we are compelled to resolve it otherwise. This brings us to the renewal of our acquaintance with Pennoyer v. Neff, supra. That case, of course, was the grandsire of the rule that in these diversity actions a plaintiff may constitutionally enforce an In personam claim against a non-resident defendant only to the extent of proceeding against specific property owned by that defendant in the forum state. In addition to the obvious prerequisite of adequate notice thereof, it laid down as a further requirement to the bringing of such an action that the property be seized prior to judgment by appropriate process of the court.

In the ninety-eight years since that decision, however, while it still seems to be the general rule as well as the rule in Florida, ³ serious doubt has arisen as to whether prejudgment seizure, ⁴ As a prerequisite to jurisdiction, can survive serious analysis in the light of modern concepts. ⁵ It would seem that, given authority over the plaintiff and over the subject matter of the action, and having territorial power over the property itself, the Right in the forum To exercise that power over the property would depend only upon the due process requirements of giving sufficient notice to the defendant that his property was in jeopardy and affording him a reasonable opportunity to appear and defend. ⁶ Moreover, since conceptually it is essentially a proceeding against the property, notwithstanding that it is predicated on an In personam, transitory claim against the nonresident defendant, there seems to be no greater reason to require seizure in an action Quasi in rem than in one strictly In rem in which it was never required. ⁷

We would suggest that practical considerations may dictate for other reasons that preservation of the Res is most desirable, particularly with regard to easily disposed of chattels or money accounts which can be 'tied up,' as it were, by attachment, garnishment or injunction, thus assuring an efficacious judgment if one is obtained and at the same time avoiding a sterile expenditure of judicial labor. But these considerations should have nothing to do with jurisdiction itself, viz, the Right to exercise a conceded power to adjudicate a claimed interest in property territorially within the forum state. Due process 'notice' ought be the only catalyst.

In any case, we need not expressly decide now whether in Florida attachment or other process of seizure remains an...