Jurisdiction — Service of process — Substituted service of process was ineffective — Error to deny motion to quash service of process

42
Fla. L. Weekly D161aTop of Form

Jurisdiction
— Service of process — Substituted service of process was ineffective where
plaintiff failed to mail a copy of process to defendant by registered or
certified mail, failed to file the return receipt from such mailing, and failed
to file its counsel’s affidavit of compliance — Defendant did not waive
service of process by its counsel’s filing of a notice of appearance or a
motion for extension of time — Error to deny motion to quash service of
process

GREEN
EMERALD HOMES, LLC, Appellant, v. PNC BANK, N.A. AND TREVOR SAHADATALLI,
Appellees. 5th District. Case No. 5D16-1189. Opinion filed January 13, 2017.
Non-Final Appeal from the Circuit Court for Orange County, Margaret H.
Schreiber, Judge. Counsel: Brennan Grogan, of Levine Law Group, Palm Beach
Gardens, for Appellant. Karin Posser, and William Grimsely, of McGlinchey
Stafford, Jacksonville, for PNC Bank, N.A., Appellee. No appearance for other
Appellee.

(PER
CURIAM.) Green Emerald Homes, LLC (“Green Emerald”) appeals the trial court’s
denial of its motion to quash service of process attempted by PNC Bank, N.A.
(“PNC”). PNC alleged that Green Emerald was concealing its whereabouts to avoid
service of process, which would entitle PNC to pursue substitute service of
process on the Secretary of State pursuant to sections 48.062(3) and 48.161(1),
Florida Statutes (2014). We reverse and remand to the trial court for the
reasons set forth below.

Green
Emerald correctly asserts that the substituted service was ineffective because
PNC failed to comply with the requirements of section 48.161(1); specifically:
(1) PNC did not mail a copy of the notice of service and a copy of the process
to Green Emerald by registered or certified mail, (2) PNC did not file the
return receipt from such mailing, and (3) PNC did not file its counsel’s
affidavit of compliance. “Perfection of substituted service requires strict
compliance with the statutory prerequisites because such service is an
exception to personal service.” Wyatt v. Haese, 649 So. 2d 905 (Fla. 4th
DCA 1995) (citing Shiffman v. Stumpff, 445 So. 2d 1104, 1105 (Fla. 4th
DCA 1984); Gloucester Eng’g, Inc. v. Mendoza, 489 So. 2d 141, 142 (Fla.
3d DCA 1986)).

PNC
seeks to excuse its noncompliance with the requirements of section 48.161(1) by
relying upon Alvarado-Fernandez v. Mazoff, 151 So. 3d 8 (Fla. 4th DCA
2014). Mazoff sustained substitute service of process despite the
plaintiff’s failure to file the defendant’s return receipts when the defendant
evaded service. 151 So. 3d at 17. The Mazoff holding, however, cannot be
expanded to excuse PNC’s failure to comply with multiple statutory
requirements, especially those calculated to give a defendant actual notice of
the suit.

Nor
do we find that Green Emerald waived service of process by its counsel filing a
notice of appearance or a motion for extension of time. “The law is clear and
well-established that a simple notice of appearance by counsel does not
constitute a general appearance by the client and does not waive the client’s
claims as to lack of jurisdiction or denial of due process.” Segalis v. Roof
Depot USA, LLC, 178 So. 3d 83, 85 (Fla. 4th DCA 2015) (citation omitted).
“Furthermore, a motion for extension of time does not constitute a general
appearance.” DiGiovanni v. BAC Home Loans Servicing, L.P., 83 So. 3d
934, 935-36 (Fla. 2d DCA 2012) (citation omitted). Green Emerald timely raised
the issue of defective service of process in its motion to quash.

Accordingly,
we reverse the trial court’s order denying Green Emerald’s motion to quash and
remand for further proceedings consistent with this opinion.

REVERSED
AND REMANDED. (PALMER, ORFINGER, and EDWARDS, JJ., concur.)

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