# Third District Court of Appeal

State of Florida

Opinion filed February 2, 2022

. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20

- 0110

Lower Tribunal No. 16

- 22203

________________



### Allstate Mortgage Solutions Transfer, Inc.

, Appellant,

vs.



### Bank of America, N.A.

, Appellee.

An Appeal from a non

- final order from the Circuit Court for Miami

- Dade

County, Martin Zilber , Judge.

Elliot L. Miller , for appellant.

Liebler, Gonzalez & Portuondo and Alan M. Pierce , for appellee.

Before EMAS, SCALES and LOBREE , JJ.

LOBREE, J.

Allstate Mortgage Solutions Transfer Inc. (“Allstate”) appeals the trial2 court ’ s denial of its motion to quash service of process in a residential

foreclosure action brought against it by Bank of America, N.A

. (“Bank of

America”). We affirm on all issues but write to address Allstate’s challenge

to the court ’ s determination that it waived its right to contest service of

process by its prior filing in t he case. Based upon our independent review of

the record, we affirm the order on review and find that Allstate waived an y

challenge to improper service of process in this action by filing its motion for

reconsideration of the court’s grant of leave to amend the complaint without

raising any challenge to service of process or otherwise disputing the court’s

exercise of perso nal jurisdiction over it.

Facts and Procedural History

Bank of A merica instituted the subject residential foreclosure action on

August 25, 2016. The initial complaint named as defendants a number of

parties, including an entity with a similar name to Allstate, then an unnamed

party. After Allstate identified i tself as the proper entity to sue in this case on

October 14, 2018, Bank of America moved for leave of court to amen d the

complaint to name Allstate as a defendant on January 23, 2019, and

provided a copy of the motion, along with the proposed amended complaint,

to Allstate on that same date. F ollowing a scheduled hearing on the motion

on March 19, 2019, for which Allstate’s counsel failed to timely appear to3 oppos e the motion, the court issued an order granting same, deeming the

amended complaint filed as of that date.

A llstate moved for reconsideration of the court ’s grant of leave to

amend the complaint on that same date, March 19, 2019, on the grounds

that the amended complaint failed to include as a party in the case Allstate’s

mortgagee, which needed to be joined. While labeled as a special

appearance motion, the motion did not object to the court ’ s jurisdiction over

Allstate due to lack of service of process, nor did it otherwise dispute

personal jurisdiction over it. The court ultimately denied the motion following

a hearing on April 30, 2019, and directed Allstate to answer the amended

complaint, purportedly served upon it the previous day, April 29, 2019, within

t en days.

On May 3, 2019, Allstate sought, through a motion entitled a special

appearance motion, additional time to respond to the amended complaint.

While this motion was pending, on May 20, 2019, Allstate further moved, via

a special appearance motion, to quash service of process on it o n the basis

that the return of service, filed by Bank of America with the court on May 3,

2019, reflected that the April 29, 2019 service was effectuated on a person

who was neither its employee nor an employee of its registered agent, and

thus insufficien t to establish personal jurisdiction over it. At the evidentiary4 hearing on December 12, 2019, the court seemingly found that the April 29,

2019 service was improper, but nonetheless denied the motion on the basis

that Allstate waived any issue regarding service of process by filing its May

3, 2019 motion for enlargement of time to respond to the amended complaint.

This interlocutory appeal followed.

Standard of Review

We have jurisdiction to review the challenged order pursuant to Florida

Rule of Appellate Procedure 9.130(a)(3)(C)(i) (providing that order

determining personal jurisdiction is appealable before rendition of final

judgment); see also Chestnut v. Nationstar Mortg. LLC

, 255 So. 3d 397, 398

-

99 (Fla. 3d DCA 2018) (“[A ]n order on motion to quash service of process is

one that determines personal jurisdiction and is thus appealable.” (quoting

Vaughn v. Wells Fargo Bank, N.A.

, 153 So. 3d 969, 970 n.1 (Fla. 5th DCA

2015))). The determination of whether the defendant has waived the right to

challenge the court’s jurisdiction over it is a pure question of law, subject to

our de novo review. See Mesa v. Bank of New York

, 180 So. 3d 222, 224

(Fla. 3d DCA 2015); see also Chestnut

, 255 So. 3d at 39 9 (“[W]hether the

trial court properly ruled on a motion to quash service of process for lack of

personal jurisdiction is a question of law, which we review de novo.” (quoting5 Mecca Multimedia, Inc. v. Kurzbard

, 954 So. 2d 1179, 1181 (Fla. 3d DCA

2007))).

Analysis

A court’s jurisdiction over a defendant is ordinarily established by

service of process on the defendant. See McKelvey v. McKelvey

, 323 So.

2d 651, 653 (Fla. 3d DCA 1976); see also Modway, Inc. v. OJ Commerce,

LLC

, 46 Fla. L. Weekly D2532

, D253 4 (Fla. 4t h DCA Nov. 24, 2021) (“Proper

service of process is indispensable for the court to obtain personal

jurisdiction over a defendant.” (quoting Sierra v. U.S. Bank Tr., N.A.

, 299 So.

3d 402, 403 (Fla. 4th DCA 2020))). Florida courts, however, have long

recognized that jurisdiction over a defendant may be acquired by the

defendant ’ s voluntary appearance in the case and submission to the court’s

jurisdiction, which, in turn, cures any defects in servic e of process. See

McKelvey

, 323 So. 2d at 653, 653 n.2; see also Fisher v. State

, 840 So. 2d

325, 330 (Fla. 5th DCA 2003) (“[A] party can make a voluntary appearance

and submit to the jurisdiction of a court even where the party is not served

with process .”).

A defendant may voluntar il y appear in the case and submit to the

court ’s jurisdiction in any number of ways, ranging from failure to timely

object to personal jurisdiction, to submission implied from conduct, to6 express consent to the prosecution of a case before the court. See Babcock

v. Whatmore

, 707 So. 2d 702, 704 (Fla. 1998); Golden State Indus

. , Inc. v.

Cueto

, 883 So. 2d 817, 820 (Fla. 3d DCA 2004) (“Because personal

jurisdiction is intended to protect a defendant ’ s li berty interests, the defense

is a personal right and may be obviated by consent or otherwise waived.”);

see also First Wisconsin Nat’l Bank of Milwaukee v. Donian

, 343 So. 2d 943,

945 (Fla. 2d DCA 1977) (“[T]hose who participate in litigation by moving the

court to grant requests materially beneficial to them, have submitted

themselves to the court’ s jurisdiction .” ); Inter Am

. Coal, S.A. v. SHE DDF2

-

FL2, LLC

, 255 So. 3d 432, 433 (Fla. 3d DCA 2018) (“[A] defendant may

waive a timely objection to personal jurisdiction by seeking affirmative relief

. . . inconsistent with an initial defense of a lack of personal jurisdiction.”

(quoting Alvarado v. Cisneros

, 919 So. 2d 585, 587 (Fla. 3d DCA 2006))).

Florida law is well settled that a defendant wishing to challenge

personal jurisdiction must do so in the first step the defendant takes in the

case, or this defense will be deemed waived

, and the court will be deemed

to have acquired jurisdiction over the defendant. See Consolidated

Aluminum Corp. v. Weinroth

, 422 So. 2d 330, 331 (Fla. 5th DCA 1982); see

also Snider v. Metcalfe

, 157 So. 3d 422, 424 (Fla. 4th DCA 2015) (“Lack of

personal jurisdiction is a waivable defense that must be raised at the ' first7 opportunity ’ and before the defendant takes any steps in the proceeding

constitut ing submission to the court ’ s jurisdiction. ”); Lennar Homes, Inc. v.

Gabb Constr. Servs., Inc.

, 654 So. 2d 649, 651 (Fla. 3d DCA 1995) (“A

defendant who fails to contest the s ufficiency of service of process at the

inception of the case

. . . has waived [its right to assert] this defense

. . . at a

later stage in the proceedings.”); Cumberland Software, Inc. v. G reat Am.

Mortg. Corp

. , 507 So. 2d 794, 795 (Fla. 4th DCA 1987) (“The first step which

a party takes in a case, whether it be the filing of a preliminary motion or a

responsive pleading, must raise the issue of personal jurisdiction or that

issue is waived.”)

Here, the first step taken by Allstate in the case after the amended

complaint was deemed filed was the filing of its March 19, 2019 motion for

reconsideration of the court’s grant of leave to amend the complaint.

However, because th is motion did not assert any challenge to service of

process or otherwise contest the court’s jurisdiction over Allstate, it waived

any subsequent challenge to personal jurisdiction, and could not validly

contest the sufficiency of service of process in a subsequently filed motion

to quash service of process. Florida courts have found a waiver of

jurisdictional defects under similar circumstances in many instances. See

Century

- National Ins. Co. v. Frantz

, 320 So. 3d 929, 931 (Fla. 2d DCA 2021)8 (finding that motion to set aside default that failed to contest service of

process or otherwise dispute personal ju risdiction over insured waived any

subsequent challenge to personal jurisdiction); Chestnut

, 255 So. 3d at 399

(concluding that mortgagor ’ s heir waived right to contest service of process

when he filed his pre

- answer motion to dismiss solely challenging

mortgagee ’ s standing without raising defens e of lack of service of process);

Dolan v. Dolan

, 81 So. 3d 558, 559 (Fla. 3d DCA 2012) (holding that former

wife waived service of process issue when she filed motion to dismiss former

husband ’ s petition for failure to state claim but did not raise lack of service

process issue until year later when she filed second motion to dismiss); Bush

v. Schiavo

, 871 So. 2d 1012, 1013

- 14 (Fla. 2d DCA 2004) (finding that

governor had submitted to jurisdiction of court by participat ing in emergency

injunction hearing hours after underlying action was filed, without object ing

to c ourt ’s jurisdicti on or failure to effect personal service on him, and

receiving material benefits by that participation); Weinroth

, 422 So

. 2d at 331

(finding that defendant’s failing to object to personal jurisdiction in its first

filing, motion to vacate default, defendant waived any issue concerning

service of process).

The fact that Allstate entitled the motion as a special appearance

motion does not change the outcome that any issue regarding service of9 process in this action was waived. See McKelvey

, 323 So. 2d at 653 (“[I]n

determining the character of an appearance, the court always will look to

matters of substance, rather than of form.”); Bay City Mgmt

. , Inc. v.

Henderson

, 531 So. 2d 1013, 1016 (Fla. 1st DCA 1988) (finding that

corporations’ special appearance motion to set aside default judgment that

reserved right to assert that cou rt lacked personal jurisdiction over them

because of lack of valid service of process, without setting forth grounds on

which this defense was based, amounted to general appearance and waiver

of any jurisdictional defects); cf. Rojas v. Rojas

, 72 3 So. 2d 318, 318 (Fla. 3d

DCA 1998) (holding that former husband, who filed notice of special

appearance intending to contest personal jurisdiction, waived that defense

by failing to expressly challenge personal jurisdiction in first motion in case

seekin g to set aside default judgment and dismiss petition for dissolution of

marriage ). 1

1 We note, however, that to the extent the court seemingly found that Allstate

waived any issue regarding service of process by merely moving for

extension of time to respond to th e amended complaint, it was error to do so.

“‘[A] motion for extension of time does not constitute a general appearance ’

and therefore is not a waiver” of jurisdictional defenses. Chestnut

, 255 So.

3d at 399 n.2 (quoting Green Emerald Homes, LLC v. PNC Bank, N.A.

, 207

So. 3d 1027, 1028 (Fla. 5th DCA 2017)); see also Barrios v. Sunshine State

Bank

, 456 So. 2d 590, 590 (Fla. 3d DCA 1984) (holding that filing motion for

enlargement of time within which to respond to complaint did not constitute

general appearance reflecting sub mission to jurisdiction and waiver of

defense of lack of personal jurisdiction).10 Affirmed.