Yakov Segalis v. Roof Depot USA, LLC and Billy M. Conrad and Mary Osbourne
178 So. 3d 83
Fla. Dist. Ct. App.2015Background
- Roof Depot obtained a judgment against Beautiful Concrete via settlement; Beautiful Concrete later dissolved. Roof Depot sought to pierce the corporate veil under section 607.1406 to hold principals liable; Yakov Segalis was listed as vice president when the corporation dissolved.
- Roof Depot asked the court to enter a show-cause order directed at Segalis; the motion and the order were mailed to the corporation’s business address but not served personally on Segalis.
- Roof Depot attempted personal service at Segalis’s residence but failed; the court held the show-cause hearing in Segalis’s absence and later entered judgment against him, which was mailed to his residence.
- Segalis received the judgment and, through counsel, filed a notice of appearance and within two weeks moved to vacate the judgment under Fla. R. Civ. P. 1.540(b), arguing lack of personal jurisdiction and denial of due process; he also sought sanctions for Roof Depot’s conduct.
- Roof Depot argued that counsel’s notice of appearance waived any jurisdictional objections. The trial court agreed and denied the 1.540(b) motion; Segalis appealed.
Issues
| Issue | Segalis' Argument | Roof Depot's Argument | Held |
|---|---|---|---|
| Whether judgment against Segalis is void for lack of personal jurisdiction and denial of due process | Judgment is void because Segalis was never personally served and had no notice or opportunity to be heard | Waived objection by counsel’s notice of appearance | Judgment is void; court must vacate — lack of service denied due process and personal jurisdiction was not waived |
| Whether counsel’s mere notice of appearance constitutes a general appearance waiving lack-of-jurisdiction defense | Notice of appearance alone does not seek affirmative relief and therefore does not waive jurisdictional defenses | Notice of appearance cured jurisdictional defect | Notice of appearance did not constitute a general appearance and did not waive the defense; trial court erred |
| Whether filing a Rule 1.540(b) motion waives jurisdictional objection | Filing a 1.540(b) motion does not waive lack-of-jurisdiction claim | Argued waiver via participation | Filing did not waive the objection; court must vacate void judgment |
| Whether trial court had discretion to deny the motion to vacate a void judgment | A void judgment must be vacated; no discretion to deny | Court exercised discretion to deny based on waiver theory | Trial court had no discretion; reversal and remand with directions to vacate and reconsider sanctions |
Key Cases Cited
- Tannenbaum v. Shea, 133 So. 3d 1056 (Fla. 4th DCA 2014) (personal jurisdiction and due process requirements for entry of judgment)
- Miller v. Preefer, 1 So. 3d 1278 (Fla. 4th DCA 2009) (judgment entered without personal service can be void)
- Public Gas Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla. 1982) (notice of appearance by counsel alone does not constitute general appearance waiving jurisdictional defenses)
- DiGiovanni v. BAC Home Loans Servicing, L.P., 83 So. 3d 934 (Fla. 2d DCA 2012) (general appearance requires affirmative relief on the merits)
- Solmo v. Friedman, 909 So. 2d 560 (Fla. 4th DCA 2005) (general appearance waives personal jurisdiction objection when made without reservation)
- Babcock v. Whatmore, 707 So. 2d 702 (Fla. 1998) (filing a 1.540 motion does not waive a lack-of-jurisdiction defense)
- Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002) (trial court must vacate void judgments)