Green Emerald Homes, LLC v. PNC Bank, N.A.
207 So. 3d 1027
Fla. Dist. Ct. App.2017Background
- Plaintiff PNC Bank attempted substituted service on Green Emerald Homes via Florida's Secretary of State, alleging Green Emerald was evading personal service.
- PNC did not: (1) mail the notice and process by registered or certified mail, (2) file the return receipt(s), or (3) file counsel’s affidavit of compliance as required by section 48.161(1).
- Green Emerald moved to quash service, arguing substituted service was ineffective for failure to comply with statutory prerequisites.
- PNC relied on Alvarado-Fernandez v. Mazoff to argue that evasion can excuse certain formal deficiencies in substituted service.
- The trial court denied Green Emerald’s motion to quash; Green Emerald appealed.
- The Fifth District reversed, finding PNC’s failure to meet multiple statutory requirements fatal to substituted service and that Green Emerald had not waived service defects by counsel’s appearance or extension motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substituted service via the Secretary of State was effective | PNC: substituted service was allowed because Green Emerald evaded personal service, so strict formalities can be relaxed | Green Emerald: PNC failed to strictly comply with §48.161(1) mailing, receipt, and affidavit requirements | Reversed — substituted service was ineffective because PNC failed to satisfy multiple statutory prerequisites |
| Whether counsel's notice of appearance or motion for extension waived defective service defense | PNC: counsel’s appearance/extensions imply waiver of jurisdictional defenses | Green Emerald: appearance and extension do not constitute general appearance or waiver | Held — notice of appearance and extension did not waive lack-of-service challenge |
Key Cases Cited
- Wyatt v. Haese, 649 So. 2d 905 (Fla. 4th DCA) (substituted service is an exception to personal service and requires strict compliance)
- Shiffman v. Stumpff, 445 So. 2d 1104 (Fla. 4th DCA) (strict compliance required for substituted service)
- Gloucester Eng’g, Inc. v. Mendoza, 489 So. 2d 141 (Fla. 3d DCA) (same)
- Alvarado-Fernandez v. Mazoff, 151 So. 3d 8 (Fla. 4th DCA) (held evasion may excuse some formalities in limited circumstances)
- Segalis v. Roof Depot USA, LLC, 178 So. 3d 83 (Fla. 4th DCA) (counsel’s notice of appearance does not constitute general appearance or waive jurisdictional defenses)
- DiGiovanni v. BAC Home Loans Servicing, L.P., 83 So. 3d 934 (Fla. 2d DCA) (motion for extension of time does not constitute general appearance)