Mesa v. Bank of New York , 2015 Fla. App. LEXIS 18760 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed December 16, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-762
Lower Tribunal No. 08-531-P
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Marlen Cantero Mesa, et al.,
Appellants,
vs.
The Bank of New York, etc.,
Appellee.
An Appeal from the Circuit Court for Monroe County, Sandra Taylor,
Senior Judge.
Kenneth Eric Trent (Fort Lauderdale), for appellants.
Akerman, LLP, Nancy M. Wallace (Tallahassee), William P. Heller and
Marc J. Gottlieb (Fort Lauderdale) and Eric M. Levine (West Palm Beach), for
appellee.
Before SHEPHERD, EMAS and FERNANDEZ, JJ.
EMAS, J.
Marlen Cantero Mesa and her husband Luis Mesa appeal an order denying
their motion to quash service of process, and to vacate a default and default final
judgment in this foreclosure case. We reverse, because the trial court erroneously
determined that a notice of appearance by counsel in and of itself constituted a
waiver of the Mesas’ right to contest personal jurisdiction.
FACTS
On July 18, 2008, The Bank of New York as Trustee filed a mortgage
foreclosure complaint against the Mesas, asserting they had defaulted on their
mortgage by failing to make payments due from July 1, 2007. The mortgaged
property was located at 147 Redwing Road in Monroe County.
Verified returns of service indicate that Mrs. Mesa was personally served on
July 19, 2008 at 22121 SW 312th Street in Homestead, Florida, and that by serving
her, substitute service was simultaneously effectuated upon Mr. Mesa.
When the Mesas failed to answer or otherwise respond to the allegations of
the complaint, the Bank obtained a clerk’s default and thereafter a final judgment
on October 28, 2008. The foreclosure sale was originally set for December 4,
2008, but was later cancelled and not reset for nearly five years. On November 11,
2013, the Bank moved to reset the foreclosure sale.
On November 13, 2013, the Mesas filed a motion to quash service, vacate
default and vacate final judgment. The Mesas asserted that they were never served
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with the summons and complaint, and therefore the court did not have personal
jurisdiction over them. The Mesas requested an evidentiary hearing to establish
this assertion. Attached to their motion were affidavits from each of them,
averring:
 The Mesas lived at the Redwing home in Monroe County until November
2008, when Mrs. Mesa moved to 32161 SW 197th Avenue in Homestead,
Florida, and Mr. Mesa moved to Miami Beach.
 The Mesas bought vacant land at 22121 SW 312th Street, Homestead,
Florida in 2005, and obtained a building permit for a single-family residence
on that property in 2006. However, they were unable to complete
construction until November 2010, due to Mrs. Mesa’s cancer diagnosis.
 At no time prior to November 2010 did the Mesas or any family member
reside at 22121 SW 312th Street in Homestead, Florida.
 Mrs. Mesa was not personally served with process in July 2008 or at any
other time.
The Bank filed no response to the motion to vacate. At the hearing, the trial
court observed that a notice of appearance had been filed by an attorney, on behalf
of the Mesas, on November 14, 2012. The notice of appearance did not request
any affirmative relief, and neither the Mesas, nor their counsel, participated in the
proceedings, filed any motions or pleadings, or sought any affirmative relief until
filing the motion to quash service and vacate judgments. Nevertheless, the Bank
argued, and the trial court agreed, that counsel’s filing of a notice of appearance
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waived the Mesas’ right to contest personal jurisdiction. The trial court entered an
order denying the Mesas’ motion to vacate, finding:
The law is well established. A general appearance by an attorney
prior to contesting personal jurisdiction waives objections to the
sufficiency of service. FLJUR Actions§115; Lennar Homes, Inc. v.
Gabb Const. Service, Inc., 654 So.2d 649 (Fla. 3d DCA 1995);
Caldwell v. Caldwell, 921 So.2d 759 (Fla. 1st DCA 2006). The
Mesas waived any such objections with the filing of a general
appearance.
This appeal followed. As this is an issue of law, the standard of review is de
novo. Mecca Multimedia, Inc. v. Kurzbard, 954 So.2d 1179, 1181 (Fla. 3d DCA
2007).
Florida Rule of Civil Procedure 1.140(b) provides in pertinent part:
b) How Presented. Every defense in law or fact to a claim for relief
in a pleading shall be asserted in the responsive pleading, if one is
required, but the following defenses may be made by motion at the
option of the pleader: (1) lack of jurisdiction over the subject matter,
(2) lack of jurisdiction over the person, (3) improper venue, (4)
insufficiency of process, (5) insufficiency of service of process, (6)
failure to state a cause of action, and (7) failure to join indispensable
parties. A motion making any of these defenses shall be made before
pleading if a further pleading is permitted.
Thus, the rule permits a party to raise, by motion or pleading, the defenses of
lack of personal jurisdiction, insufficient process, and insufficient service of
process. However, if a party does not raise these defenses in its initial motion or
responsive pleading, such defenses are waived. Fla. R. Civ. P. 1.140(h)(1); Coto-
Ojeda v. Samuel, 642 So. 2d 587 (Fla. 3d DCA 1994).
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In the instant case, the Mesas raised these defenses in their initial motion,
and before any responsive pleading. The only document that had been filed prior
to the motion was the notice of appearance filed by the Mesas’ attorney. That
notice of appearance did not answer or respond to the complaint, raise any defense,
seek any affirmative relief, or by its terms submit the Mesas to the jurisdiction of
the court. Rather, it simply served as formal notice that counsel was representing
the Mesas in the instant case, and requested that counsel be served with copies of
any future pleadings, motions and notices.
The trial court erred in determining that counsel’s filing of this notice of
appearance1 waived the right to contest personal jurisdiction, including the right to
1The trial court’s order appears to misapprehend the term “general appearance” and
equates the filing of a simple notice of appearance with a “general appearance.”
The Florida Supreme Court, in Public Gas Co. v. Weatherhead Co., 409 So. 2d
1026, 1027 (Fla. 1982) made it clear that an attorney’s “neutral and innocuous”
notice of appearance does not constitute a “general appearance.” By contrast, and
by way of example, a party’s active participation in the trial court proceedings
without raising lack of personal jurisdiction has been held to constitute a general
appearance. Solmo v. Friedman, 909 So. 2d 560 (Fla. 4th DCA 2005); Bush v.
Schiavo, 871 So. 2d 1012 (Fla. 2d DCA 2004). Also, the filing of a responsive
pleading or motion which fails to raise the lack of personal jurisdiction, constitutes
a party’s “general appearance,” submission to the jurisdiction of the court, and
waiver of the right to later contest personal jurisdiction. Samuel, 642 So. 2d at
587. The continued use of the terms “general appearance” and “special
appearance” has long been criticized as obsolete, see id. at 588 (Cope, J.
concurring), as the 1948 adoption of the Florida Rules of Civil Procedure
(including the predecessor to rule 1.140) eliminated the need for, and distinction
between, general and special appearances. See Kennedy v. Vandine, 185 So. 2d
693 (Fla. 1966); Ward v. Gibson, 340 So. 2d 481 (Fla. 3d DCA 1976); First
Wisconsin Nat. Bank v. Donian, 343 So. 2d 943 (Fla. 2d DCA 1977). And as seen
in the instant case, the term general appearance can easily be confused with a
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contest the sufficiency of service of process. See Public Gas Co. v. Weatherhead
Co., 409 So. 2d 1026, 1027 (Fla. 1982) (holding that “the filing of a ‘notice of
appearance’ by Weatherhead’s counsel did not waive its right to claim lack of
jurisdiction over its person”)(approving this court’s earlier conclusion in
Weatherhead v. Coletti, 392 So. 2d 1342, 1344 (Fla. 3d DCA 1980), that “[t]here is
no basis in the rules and no reason in policy for a determination that the mere filing
of an entirely neutral and innocuous piece of paper, which indicates no
acknowledgment of the court’s authority, contains no request for the assistance of
its process, and, most important, reflects no submission to its jurisdiction should
nevertheless be given just that effect”). See also Podd v. Becker, 728 So. 2d 1234(Fla. 3d DCA 1999).
The cases relied upon by the trial court in its order denying the Mesas’
motion are inapposite. Neither of those cases dealt with the legal effect of the
filing of a notice of appearance. In Lennar Homes, Inc. v. Gabb Construction
Services, 654 So. 2d 649 (Fla. 3d DCA 1995), the defendant, in response to the
complaint, filed a motion to dismiss the complaint without raising the defense of
lack of process or insufficiency of service of process. The defendant later filed an
general notice of appearance, providing additional cause to yearn for the term’s
eventual demise. For now, however, the concept of “general appearance” survives
as a term of art denoting the actions or circumstances by which a party is deemed
to have submitted itself to the jurisdiction of the court, and should not be equated
with the filing of a general notice of appearance.
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answer to the third-party complaint, again failing to raise the defense of lack of
process or insufficiency of service of process. We held that in doing so, defendant
waived its right to assert these defenses at a later stage of the proceedings.
In Caldwell v. Caldwell, 921 So. 2d 759, 760 (Fla. 1st DCA 2006), the
husband’s attorney filed a notice of appearance, and thereafter, “[f]urther
proceedings occurred in the dissolution action in which the husband participated.”
In that situation, the First District held that the husband by participation in further
proceedings waived the issue of personal service. Neither of the circumstances in
Lennar Homes or Caldwell is presented by the record in the instant case.
The Bank concedes that this is the law in Florida, but contends that we
should nevertheless affirm because the Mesas’ affidavits are insufficient to shift
the burden to the Bank to prove proper service, and because the Mesas waived any
right to an evidentiary hearing. However, the trial court did not base its ruling
upon any determination of the sufficiency or insufficiency of the Mesas’ affidavits,
but rather only upon what it determined to be the legal effect of the notice of
appearance. Moreover, the Mesas were present at the hearing and were prepared to
testify when the trial court raised the issue of the earlier-filed notice of appearance.2
2 In fact, Ms. Mesa had already begun testifying when the trial court raised the
notice of appearance, which quickly became the focus of the trial court’s inquiry
and its ultimate determination. Although it appears from the transcript that Ms.
Mesa was not sworn, the Bank failed to interpose any objection to this, thereby
waiving the issue on appeal. See Spivey v. State, 12 So. 3d 880 (Fla. 5th DCA
2009); Murphy v. State, 667 So. 2d 375 (Fla. 1st DCA 1995).
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We reject the Bank’s assertion that the Mesas waived their right to an evidentiary
hearing, as such a claim is not supported by the record.
Reversed and remanded for further proceedings consistent with this opinion.
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