Zieman v. Cosio

• Citation: 578 So.2d 332,16 Fla. L. Weekly 896
• Decision Date: 02 April 1991
• Docket Number: No. 90-1978,90-1978
• Parties: Alden ZIEMAN, Appellant, v. Emilio COSIO, Appellee. 578 So.2d 332, 16 Fla. L. Week. 896
• Court: Florida District Court of Appeals

Page 332

578 So.2d 332

Alden ZIEMAN, Appellant, v. Emilio COSIO, Appellee.

No. 90-1978.

578 So.2d 332, 16 Fla. L. Week. 896

District Court of Appeal of Florida,

Third District.

April 2, 1991.

Hollander & Bartelstone and Howard Hollander, Miami, for appellant.

Mark A. Kamilar, Miami, for appellee.

Before BASKIN, FERGUSON and LEVY, JJ.

PER CURIAM.

Emilio Cosio, the prospective purchaser in a failed real estate transaction, filed an action for breach of contract, fraud, and rescission against the seller, Alden Zieman. After unsuccessfully attempting personal service, Cosio served Zieman by publication. See Secs. 49.011, 49.021, Fla.Stat. (1989). The trial court entered a Final Judgment after Default awarding a money judgment against Zieman. Subsequently, the trial court denied Zieman's motion to set aside the judgment based on lack of personal jurisdiction. We reverse.

Cosio contends that service by publication was proper under section 49.011(2), Florida Statutes (1989). We disagree. The complaint seeks money damages and rescission of the contract, actions not enumerated in section 49.011, Florida Statutes (1989), which sets forth the cases in which service by publication is authorized. Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225 (Fla.1986); New England Rare Coin Galleries, Inc. v. Robertson, 506 So.2d 1161 (Fla. 3d DCA 1987); Alan Restaurant Corp. v. Walder, 399 So.2d 1128 (Fla. 4th DCA 1981); cf. Estate of Bobinger v. Deltona Corp., 563 So.2d 739, 748 (Fla. 2d DCA 1990). Moreover, "constructive service confers only in rem or quasi in rem jurisdiction upon the court." Bedford, 484 So.2d at 1227. Here, Cosio sought and received a personal money judgment against Zieman. ¹ Such a judgment necessitates in personam jurisdiction. ² Bedford; Estate of Bobinger; New England Rare Coin Galleries. Accordingly, we reverse the order denying Zieman's motion to set aside the judgment and remand for further proceedings.

Reversed and remanded.

BASKIN and LEVY, JJ., concur.

FERGUSON, Judge, dissenting in part, concurring in part.

The threshold question is whether a court with in rem jurisdiction may order a return of a deposit which was paid pursuant to a contract for the purchase of real estate where entitlement to the relief necessitates a rescission of the contract. I disagree with the blanket majority holding that section 49.011, Florida Statutes (1989), does not permit service by publication in a cause of action for rescission. ¹

Zieman and Cosio entered into a contract to sell Cosio a tract of land. Zieman, the seller, was paid an $18,000 deposit, which Cosio contends is a fund subject to attachment for jurisdictional purposes. Cosio informed Zieman beforehand of his intended commercial use of the property and was assured by Zieman and his agent, Krueger, that the land could be used for that purpose. Cosio subsequently learned that an encumbrance prohibited the use of the land for its intended commercial purpose.

After fruitless negotiations with Zieman and his attorney for a cancellation of the contract, Cosio sued both Zieman and Krueger for breach of contract and rescission. Krueger, who was personally served, was named as a party making the mispresentation and was identified as Zieman's agent. Several efforts to serve Zieman proved futile. After a default had been entered on constructive service, Zieman's attorney appeared on a motion to set aside the default, but refused to accept service for his client.

Section 49.011, Florida Statutes (1989), controls. It provides:

Service of process by publication may be made in any court on any person mentioned in s. 49.021 ² in any action or proceeding:

(1) To enforce any ... equitable ... claim to any ... title or interest in ... any fund held ³ ... by any party on whom process can be served within the state.

(Emphasis supplied). Three key facts are not disputed. The alternative cause of action for rescission is equitable in nature; the claim is for, among other things, a return of the deposit which is a fund as contemplated by the statute; the defendant, and his agent, are parties on whom process can be served within the state. Another material fact not answered by the record is whether the fund is within the state, and has been actually or constructively seized for jurisdictional purposes.

Whenever a court is called upon to decide a disputed claim to a fund, it must first examine the source from which the claimed right arises--a tort or contract. Therefore, this case cannot be disposed of, as the majority suggests, on the theory that it is an action on a contract which requires personal service on the defendant. To do so necessarily reads out of the statute the provision that service by publication will lie to enforce an equitable claim to an interest in a fund within the court's jurisdiction. Further, an action to rescind a contract, unlike a contract action against the person for damages, seeks a restoration of the parties to the positions they would have occupied had there been no contract, on the theory that the agreement was void from its inception. Glass v. Craig, 83 Fla. 408, 91 So. 332 (1922).

It has long been the law in this state that where a trial court has jurisdiction over a justiciable subject matter, and the statutes authorize constructive service of process in the suit which affords due process of law to the defendant, the court may proceed in the cause and may subject the property to appropriate orders and decrees. Gribbel v. Henderson, 151 Fla. 712, 10 So.2d 734 (1942), aff'd, 153 Fla. 397, 14 So.2d 809 (1943). In this case the action is more precisely a quasi-in-rem proceeding, where the judgment deals with the ownership of particular property, and operates only as between the particular parties to the proceeding. Id. The judgment for a return of particular property in this case, as in Miller v. Griffin, 99 Fla. 976, 128 So. 416 (1930), could operate only against the property and not against the person.

Section 49.011(1) does not itemize or limit the underlying causes of action where a court, with jurisdiction over a fund, may decide issues of status, ownership, or rights in the property. The statute confers power on the court to determine and enforce any claim of title or interest in a fund within its jurisdiction held by any party on whom process can be served by publication within the state. "The objects to be accomplished by process are to advise a defendant that an action or proceeding has been commenced against him ..., and warn him 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, judgment against him will be applied for or taken in a designated sum, or for relief specified." Gribbel v. Henderson, 151 Fla. 712, 724, 10 So.2d 734, 739 (1942).

Zieman was given fair notice of the proceedings by published notice. Additionally, there was notice by personal service on Zieman's agent. The law assumes that property is always in the possession of its owner, in person or by agent, and it proceeds upon the theory that its constructive seizure from the agent will inform the owner that it has been subjected to the court's jurisdiction, and that the owner must look to any proceedings authorized by law for a disposition of the property. See Concrete Block & Wall Co. v. Knap, 102 So.2d 742, 745 (Fla. 3d DCA 1958) (citing Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877))....