Yakov Segalis v. Roof Depot USA, LLC and Billy M. Conrad and Mary Osbourne , 178 So. 3d 83 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
YAKOV SEGALIS,
Appellant,
v.
ROOF DEPOT USA, LLC, a Florida Limited Liability Company, BILLY M.
CONRAD and MARY OSBOURNE,
Appellees.
No. 4D15-400
[October 21, 2015]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No.
10-21660 CACE 12.
Lisa Paige Glass of Glass Law Office, P.A., Boca Raton, for appellant.
Andrew T. Trailor of Andrew T. Trailor, P.A., Miami, for appellee Roof
Depot USA, LLC.
PER CURIAM.
Appellant Yakov Segalis appeals an order denying his motion to vacate
judgment and for sanctions. The judgment against Segalis was void for
lack of jurisdiction and denial of due process, and the trial court erred in
failing to vacate it. We therefore reverse and remand, with directions to
vacate the judgment and reconsider the motion for sanctions.
Appellee Roof Depot USA, LLC (“Roof Depot”) obtained a judgment
against Beautiful Concrete of South Florida, Inc. (“Beautiful Concrete”)
through a settlement agreement. Beautiful Concrete subsequently
dissolved, and Roof Depot sought to hold the principals of the corporation
personally liable for the judgment pursuant to section 607.1406, Florida
Statutes. Segalis was listed as Beautiful Concrete’s vice president at the
time it dissolved.1
1Segalis’s actual connection to Beautiful Concrete is unclear. He claims he had
“no substantive connection” to the company. In 2012, he considered becoming
Roof Depot filed a motion for entry of a show cause order against
Segalis. The motion was mailed to Beautiful Concrete’s business address,
but not to Segalis personally. The trial court subsequently ordered Segalis
to appear and show cause why a judgment should not be entered against
him. Again, this order was not mailed to Segalis personally. Roof Depot
attempted to serve the order on Segalis at his residence, but was
unsuccessful. The court held the hearing without Segalis’s presence, and
later entered a judgment against him. The judgment was mailed to Segalis
at his residence. Segalis received the judgment and claims it was the first
time he became aware of the lawsuit.
Segalis retained counsel, who filed a notice of appearance in the case.
Two weeks later, counsel filed a motion to vacate judgment and for
sanctions, pursuant to Florida Rule of Civil Procedure 1.540(b). Segalis
argued that the judgment was void for lack of personal jurisdiction and
denial of due process. He requested the court to sanction Roof Depot and
its counsel for their bad faith conduct in obtaining the judgment and then
refusing to cooperate in vacating it.2 Roof Depot argued that the notice of
appearance filed by Segalis’s counsel waived any claim as to lack of
personal jurisdiction. The trial court agreed and denied the motion,
finding that counsel’s notice of appearance “cured everything.”
Orders on rule 1.540(b) motions generally are reviewed for an abuse of
discretion. See, e.g., Freemon v. Deutsche Bank Trust Co. Americas, 46 So.
3d 1202, 1204 (Fla. 4th DCA 2010). However, where there is no factual
dispute and the trial court’s decision is based on a pure question of law,
the review is de novo. See Mourning v. Ballast Nedam Constr., Inc., 964 So.
2d 889, 892 (Fla. 4th DCA 2007). Furthermore, when the underlying
judgment is void, the trial court has no discretion and is obligated to vacate
the judgment. See Phenion Dev. Grp., Inc. v. Love, 940 So. 2d 1179, 1181
(Fla. 5th DCA 2006).
The judgment against Segalis is clearly void for lack of jurisdiction and
denial of due process. See Tannenbaum v. Shea, 133 So. 3d 1056, 1061
(Fla. 4th DCA 2014); Miller v. Preefer, 1 So. 3d 1278, 1282 (Fla. 4th DCA
2009); see also Shiver v. Wharton, 9 So. 3d 687, 690 (Fla. 4th DCA 2009).
a contractor for the company, but the relationship never materialized. He does
not address whether he knew he was listed as the company’s vice president.
2 The briefs, as well as the pleadings in the trial court, discuss several
unsuccessful efforts by Segalis’s counsel to negotiate with Roof Depot regarding
vacating the judgment.
2
Roof Depot does not dispute that Segalis was never personally served with
the order to show cause and was not provided notice or an opportunity to
be heard before the judgment was entered.
It is true that if a party makes a general appearance in a case without
first challenging personal jurisdiction, the party is deemed to have waived
any claims as to lack of personal jurisdiction. See, e.g., Solmo v. Friedman,
909 So. 2d 560, 564 (Fla. 4th DCA 2005). However, in order for a filing to
constitute a general appearance, “it must seek some sort of affirmative
relief on the merits of the case.” DiGiovanni v. BAC Home Loans Servicing,
L.P., 83 So. 3d 934, 936 (Fla. 2d DCA 2012) (citing Ginsberg v. Lamour,
711 So. 2d 182, 183 (Fla. 4th DCA 1998); Moo Young v. Air Canada, 445
So. 2d 1102, 1104 (Fla. 4th DCA 1984)). The law is clear and well-
established that a simple notice of appearance by counsel does not
constitute a general appearance by the client and does not waive the
client’s claims as to lack of jurisdiction or denial of due process. See Pub.
Gas Co. v. Weatherhead Co., 409 So. 2d 1026, 1027 (Fla. 1982).3
The judgment against Segalis is clearly void for lack of personal
jurisdiction and denial of due process, and counsel’s notice of appearance
did not waive those claims. The trial court had no discretion to deny
Segalis’s motion to vacate the judgment. We therefore reverse and
remand, with directions to vacate the judgment and reconsider the motion
for sanctions. See Moakley v. Smallwood, 826 So. 2d 221, 227 (Fla. 2002);
Hahamovitch v. Hahamovitch, 133 So. 3d 1020, 1025 (Fla. 4th DCA 2014).
Reversed and remanded.
STEVENSON, GROSS and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3Similarly, the filing of a rule 1.540(b) motion to vacate judgment does not waive
a claim of lack of personal jurisdiction. See Babcock v. Whatmore, 707 So. 2d
702, 705 (Fla. 1998); Hollowell v. Tamburro, 991 So. 2d 1022, 1025–26 (Fla. 4th
DCA 2008).
3