RONALD L. BORNSTEIN, Appellant,
THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT INC., ALTERNATIVE LOAN TRUST 2006-4CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-4CB, Appellee.
final until disposition of timely filed motion for rehearing.
of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Susan R. Lubitz, Senior
Judge; L.T. Case No. 50-2014-CA-014275XXXXMB.
L. Bornstein of Ronald L. Bornstein, P.A., Greenacres, for
brief filed for appellee.
reverse the circuit court's denial of a defendant's
motion to quash service of process. Contrary to the belief of
the trial court, appellant did not seek affirmative relief
that subjected him to the jurisdiction of the court.
Ronald Bornstein's appeal from an order that denied his
motion to quash service of process. The underlying action is
a residential foreclosure. Ronald and Alba Bornstein,
divorced since 2008, filed a notice of limited and special
appearance to challenge jurisdiction and service of process.
is an attorney and identified himself as "Limited
Attorney for Defendants." Both he and Alba moved to
quash service. By order of January 6, 2016, the trial court
denied the plaintiff Bank's motion for default and
ordered the parties to schedule a hearing on the pending
motion to quash within sixty days.
Bank unilaterally scheduled a hearing for February 5, 2016,
on the motion to quash. On January 21, the Bornsteins moved
for protective order and sanctions seeking to block the
Bank's attempt to schedule an evidentiary hearing on an
abbreviated motion calendar. The motion for protective order
detailed e-mail exchanges between Ronald and the Bank's
counsel regarding scheduling issues. The motion indicates
that Ronald had previously filed a notice of unavailability.
An agreed order was issued, cancelling the February 5
trial court subsequently held an evidentiary hearing to
address the motions to quash. The Bank conceded that service
on Alba was improper, but argued that service on Ronald was
proper. Among other points, the Bank asserted that Ronald
sought "affirmative relief from the Court" through
his motion for protective order and request for sanctions.
trial court granted Alba's motion to quash given the
concession. In denying Ronald's motion, the trial court
found that service was defective, but that Ronald waived the
defect and submitted himself to the court's jurisdiction
by seeking affirmative relief when filing the January 21
motion for protective order and sanctions.
that Ronald's filings were defensive only. He did not
seek affirmative relief on the merits of the foreclosure
case, and thus did not waive his objection to service or
submit himself to the court's jurisdiction. See
Segalis v. Roof Depot USA, LLC, 178 So.3d 83, 85 (Fla.
4th DCA 2015) (noting that for a filing to constitute a
general appearance sufficient to waive a challenge to
jurisdiction, "it must seek some sort of affirmative
relief on the merits of the case.") (quoting
DiGiovanni v. BAC Home Loans Servicing, L.P., 83
So.3d 934, 936 (Fla. 2d DCA 2012)); Moo Young v. Air
Canada, 445 So.2d 1102, 1104 (Fla. 4th DCA 1984).
example, in Garfinkel v. Katzman, 76 So.3d 40, 41
(Fla. 4th DCA 2011), we held that the filing of a motion for
protective order seeking to quash or limit a deposition was
defensive and not a claim for affirmative relief that waived
the service and personal jurisdiction challenges. See
also Babcock v. Whatmore, 707 So.2d 702, 704 (Fla. 1998)
("[A] defendant waives a challenge to personal
jurisdiction by seeking affirmative relief- such requests are
logically inconsistent with an initial defense of lack of
jurisdiction."); Banco de Costa Rica v.
Rodriguez, 573 So.2d 833, 834 (Fla. 1991) (holding
defendant's filing of motion to quash deposition subpoena
raising lack of service was a defensive action that did not
result in waiver of claim of lack of personal jurisdiction);
compare Solmo v. Friedman, 909 So.2d 560, 564 (Fla.
4th DCA 2005) (observing that even if constructive service
were defective, husband waived challenge by participating in
two hearings without objection and by submitting his own
proposal for a supplement to the final judgment following
hearing in which he participated).
Ronald's motion for protective order challenged the
Bank's scheduling tactics and resulted in an agreed order
cancelling the hearing. His motion for sanctions sought fees
associated with the filing of that motion. In Brown v.
U.S. Bank National Association,117 So.3d 823, 824 (Fla.
4th DCA 2013), we held that comparable motions did not waive
the challenge to service. Thus, we reverse and remand since
neither of Ronald's motions constituted the type of
affirmative relief that would amount ...