KESNER TOULOUTE v. CITY OF FORT LAUDERDALE – Due Process Violation to Dismiss Case Without Notice

Trial court dismissed case after party failed to appear at status conference.  Notice of the status conference, however, was mailed to the wrong address.  The dismissed party made a Rule 1.540(b)(4) motion to set aside the judgment as void, which the trial court denied.

The Fourth DCA reversed the trial court’s decision:

Rule 1.540(b)(4) provides that the court may relieve a party from a void judgment. “A judgment is void if, in the proceedings leading up to the judgment, there is ‘[a] violation of the due process guarantee of notice and an opportunity to be heard.’

Dismissal after notice was sent to the wrong address was a due process violation.


DiGiovanni resides in California. BAC Home Loans, the Plaintiff, filed suit against DiGiovanni in Florida and attempted to serve him at his home in California. After several attempts at service were unsuccessful, BAC Home Loans had its process server file an affidavit stating that DiGiovanni was avoiding service and proceeded with service by publication.

In response, DiGiovanni’s counsel filed a notice of appearance which states: “Mark P. Stopa, Esquire and the Stopa Law Firm hereby make a general appearance on behalf of Defendant, [Leonardo N. DiGiovanni], and request that copies of all pleadings, notices, and correspondence be served upon him at the address listed below.” Stopa also filed a motion for extension of time to respond to the complaint. The extension was granted, and DiGiovanni then filed a motion to quash service by publication.

The trial court denied DiGiovanni’s motion to quash, concluding that he had “submitted himself to the jurisdiction of the [c]ourt by filing a motion for extension of time, before filing the [m]otion to [q]uash.”

The Second DCA reversed finding that “in order for a filing to actually constitute a general appearance before the court, it must seek some sort of affirmative relief on the merits of the case.”  “[T]he filing of a ‘notice of appearance’ by [defendant’s] counsel did not waive [defendant’s] right to claim lack of jurisdiction over [his] person.”  The court found that it was irrelevant that counsel had used the phrase “hereby make a general appearance on behalf of Defendant.”  The only analysis that mattered was whether the filing actually sought affirmative relief on the merits.

DIGIOVANNI v. BAC HOME LOANS SERVICING, L.P.,  Case No. 2D11-5265 (Fla. 2d DCA  March 14, 2012)

ROBERT DOLAN v. KIM DOLAN, A/K/A KIM D. FERGUSON, 37 Fla. L. Weekly D453a (Fla. 3d DCA Feb. 22, 2012) – insufficiency of service waived if not asserted in first motion to dismiss

In this child support reduction case, the ex-wife filed a motion to dismiss addressing only the merits of the ex-husband’s complaint.  The court denied the motion.  A year later, the ex-wife hired another lawyer, who moved to dismiss on the basis of insufficient service of process.  The court ordered the ex-husband to serve an amended complaint on the ex-wife within five days.  The ex-husband was unable within the prescribed five days to serve the ex-wife, who apparently was evading service.  The court then dismissed the ex-husband’s lawsuit with prejudice.  The appellate court reversed, holding that the ex-wife had no basis to raise the issue of service of process in her second motion because she failed to do so in her first motion.  As a result, she waived the issue under Rule 1.140(b) and (h).

ROBERT DOLAN v. KIM DOLAN, A/K/A KIM D. FERGUSON, 37 Fla. L. Weekly D453a (Fla. 3d DCA Feb. 22, 2012)