Huguenor v. Huguenor
| Decision Date | 06 October 1982 |
| Citation | 420 So.2d 344 |
| Parties | Winifred E. HUGUENOR, Appellant, v. Thomas HUGUENOR, Individually, and as Guardian of the Person and Property of Florence P. Huguenor and Robert Huguenor, Appellee. 81-605. |
| Court | Florida District Court of Appeals |
Theodore F. Zentner of Becks, Becks & Wickersham, Daytona Beach, for appellant.
David A. Monaco of Cobb & Cole, P.A., Daytona Beach, for appellee.
Appellant appeals from an order of the trial court denying a motion to set aside a default final judgment. We reverse.
Appellant Winifred Huguenor is the widow of Lloyd Huguenor, Jr., deceased, and before her removal, she was the personal representative of Lloyd, Jr.'s estate. In the first count of a two count complaint, 1 the appellees, as beneficiaries of a trust created in Illinois by the will of Lloyd Huguenor, Sr., sought relief against Lloyd, Jr.'s estate because of Lloyd Jr.'s alleged co-mingling of trust assets with his own while he was the trustee of his father's trust. In the second count, appellees sought a money judgment against Winifred Huguenor, alleging that while acting as personal representative of Lloyd, Jr.'s estate, she had converted to her own use certain bonds belonging to the estate, the proceeds of which she refused to return.
Constructive service of process by publication under chapter 49, Florida Statutes (1979), was had upon Winifred, who then resided in Great Britain. When no answer was filed, a default was entered by the Clerk. Upon motion by appellees that Count II represented a separate cause of action against Winifred which could proceed independently from Count I, the trial court severed Count II and subsequently entered a final money judgment on default against Winifred Huguenor. Winifred subsequently moved to set the judgment aside on the ground that it was void for lack of personal jurisdiction over her. The motion was denied and this appeal followed.
Section 49.011, Florida Statutes, authorizes service of process by publication in certain enumerated actions or proceedings. This constructive service statute is strictly construed against the party who seeks to obtain service of process under it, McAlice v. Kirsch, 368 So.2d 401 (Fla.3d DCA 1979). The complaint must allege sufficient facts to show a cause of action for which constructive service is allowed under the statute, Gaskill v. May Brothers, Inc., 372 So.2d 98 (Fla.2d DCA 1979).
The action here is one for money damages based on the tort of conversion. It is simply not the type of action where service of process may be obtained by publication. See, e.g., Alan Restaurant Corp. v. Walder, 399 So.2d 1128 (Fla.4th DCA 1981); Drake v. Scharlau, 353 So.2d 961 (Fla.2d DCA 1978); Ressler v. Sena, 307 So.2d 457 (Fla.4th DCA 1975).
Appellee contends that because Winifred committed the tort while acting as the personal representative of Lloyd, Jr.'s estate in Volusia County, she becomes personally liable to interested persons under section 733.609 and section 733.619(2), Florida...
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