DIGIOVANNI v. BAC HOME LOANS SERVICING, L.P. – Service of Process

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)