CHRISTINE SCHULTE v. THE BANK OF NEW YORK MELLON

• Court: District Court of Appeal of Florida
• Decided: February 2, 2022
• Docket: 21-1959
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

CHRISTINE SCHULTE, Appellant,

v.

THE BANK OF NEW YORK MELLON, Appellee.

No. 4D21-1959

[February 2, 2022]

Non-final appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Glenn D. Kelley, Judge; L.T. Case No. 502015CA011580.

Margery E. Golant of Margery E. Golant, P.A., Boca Raton, for appellant.

No appearance for appellee.

PER CURIAM.

We reverse an order denying a motion to quash service of process.

The trial court made the factual finding that appellant was not properly served, but ruled that appellant had waived any personal jurisdictional challenge by her participation in the lawsuit. Nothing appellant filed in the lawsuit amounted to a request for affirmative relief. See Modway, Inc. v. OJ Com., LLC, 46 Fla. L. Weekly D2532, 2021 WL 5499826, at *2 (Fla. 4th DCA Nov. 24, 2021) (stating that “affirmative relief” is “relief for which a defendant might maintain an action independently of plaintiff’s claim and on which he might proceed to recovery, although plaintiff abandoned his cause of action or failed to establish it”) (citation omitted); accord Heineken v. Heineken, 683 So. 2d 194, 197 (Fla. 1st DCA 1996). The trial court relied on Thane v. Rose Acceptance, Inc., 315 So. 3d 760 (Fla. 4th DCA 2021), but we conclude that Thane is distinguishable. Thane involved a request to reschedule, which acknowledges jurisdiction, unlike appellant’s motion in this case.

Reversed. GROSS, CIKLIN and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.