MARINE DISTRIBUTORS OF VIRGINIA ET AL., APPELLANTS,

v.

MARY B. KELLY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LARRY ROBERT CARSON, APPELLEES

Fla. 5th DCA | 1979-08-14

No. NN-446

MILLS and LARRY G. SMITH, JJ., concur., ROBERT P. SMITH, Jr., J., specially concurs (Associate Judges, sitting by assignment pursuant to Supreme Court administrative order filed July 17, 1979).

374 So. 2d 592 Florida District Court of Appeal, Fifth District (1979) Positive Treatment

Cited by 6 cases

Topics

Notice Of Appearance Common Law Rule Rules Of Civil Procedure Common Law

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Opinion of the Court

PER CURIAM.

AFFIRMED. Royal Industries, Inc. v. Birdsong, 340 So. 2d 526 (Fla. 1st DCA 1976), cert. den., 351 So. 2d 408 (Fla.1977); Viator v. Morgan Construction Co., 344 So. 2d 657 (Fla. 1st DCA 1977), cert. den., 352 So. 2d 173 (Fla.1977); Hotel and Restaurant Employees, etc. v. Lake Buena Vista Communities, Inc., 349 So. 2d 1217 (Fla. 4th DCA 1977). MILLS and LARRY G. SMITH, JJ., concur. ROBERT P. SMITH, Jr., J., specially concurs (Associate Judges, sitting by assignment pursuant to Supreme Court administrative order filed July 17, 1979).

Concurrence

ROBERT P. SMITH, Jr., J.,

specially concurring:

In Royal and Viator the First District, from which this panel is temporarily transplanted to serve the Fifth, recently gave effect to the common law rule that a party defendant whose counsel files a paper appearance before pleading is subjected to the court’s jurisdiction, and that defendant may not in his first true and timely pleading contest the court’s personal jurisdiction of him. Until the Fifth District is permanently constituted, those decisions govern this case, in which defendants’ counsel filed and served a paper entitled “Notice of Appearance,” reciting:

Please take notice of the appearance of Haas, Boehm, Brown & Kieffer, P. A., on behalf of the Defendants in the above-styled cause.

The rule we perpetuate here is in my opinion of dubious value. The rules of civil procedure know no such thing as a “notice of appearance” and they extract no penalty for the use of it as a convenient way of placing counsel’s name and address on the record to avoid court action on some extraordinary early application by the plaintiff, with notice to defendant personally but not to his counsel, or to guard against an unnoticed default entered upon some later inadvertence by defendant’s counsel.

Rule 1.140(b) permits the simultaneous assertion, without waiver, of jurisdictional defenses and defenses on the merits. The similar federal rule has been construed to permit the filing of substantially inconsequential papers such as this “notice of appearance” without waiver of the right to file a timely pleading contesting the court’s jurisdiction of the defendant’s person. Fed.R.Civ.P. 12(b); Grammenos v. Lemos, 457 F. 2d 1067 (2d. Cir. 1972); Housing Authority of City of Atlanta v. Millwood, 472 F. 2d 268 (5th Cir. 1973); Wright v. Yackley, 459 F. 2d 287 (9th Cir. 1972).

If we had not so recently and repeatedly enforced the common law rule, I would vote for its assignment to oblivion, in favor of a waiver rule applying only when the defendant, without reserving his jurisdictional objection, takes some action the effect of which is to request relief on the merits. See McKelvey v. McKelvey, 323 So. 2d 651 (Fla. 3d DCA 1976); First Wisconsin Nat’l Bank of Milwaukee v. Donian, 343 So. 2d 943 (Fla. 2d DCA 1977), cert. den., 355 So. 2d 513 (Fla.1978).

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Pub. GAS Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla. 1982)

…, concur. . The district court stated: [B]y doing so, we bring ourselves into direct conflict with decisions of each of our sibling courts of appeal. Fulmer v. Northern Central Bank, 386 So. 2d 856 (Fla. 2d DCA 1980); Marine Distributors v. Kelly [374 So. 2d 592 (Fla. 5th DCA 1979)] supra; Hotel and Restaurant Employees Union v. Lake Buena Vista Communities, Inc., 349 So. 2d 1217 (Fla. 4th DCA 1977); Viator v. Morgan Construction Co., 344 So. 2d 657 (Fla. 1st DCA 1977), cert. denied, 352 So. 2d 173 (Fla.197…
Weatherhead Co. v. Coletti, 392 So. 2d 1342 (Fla. 3d DCA 1980)

…far as is consistent with orderly procedure, the rights of parties be decided on the merits of their positions. We thus entirely agree with the contrary opinion of Judge Robert Smith, specially concurring in Marine Distributors of Virginia v. Kelly, 374 So. 2d 592, 593 (Fla. 5th DCA 1979), appeal dismissed, 383 So. 2d 1198 (Fla.1980): The rules of civil procedure know no such thing as a ‘notice of appearance’ and they extract no penalty for the use of it as a convenient way of placing counsel’s name and addr…
Fulmer v. N. Cent. Bank, 386 So. 2d 856 (Fla. 2d DCA 1980)

…to the jurisdiction of the trial court. In this respect we agree with the holding in Royal Industries, Inc. v. Birdsong, 340 So. 2d 526 (Fla. 1st DCA 1976), cert. denied, 351 So. 2d 408 (Fla. 1977). But see Marine Distributors of Virginia v. Kelly, 374 So. 2d 592 (Fla. 5th DCA 1979) (Smith, J., specially concurring). . A general appearance entered after asserting lack of personal jurisdiction does not waive the alleged jurisdictional defect. White v. Nicholson, No. 80-446, 386 So. 2d 74 (Fla. 2d DCA July 30…

Authorities Cited

McKELVEY v. McKELVEY, 323 So. 2d 651 (Fla. 3d DCA 1976)
First Wis. Nat'l Bank of Milwaukee v. Armand S. Donian and Phyllis Donian, 343 So. 2d 943 (Fla. 2d DCA 1977)
Polychronis Grammenos and Theodore Orfanides v. Lemos, 457 F.2d 1067 (2d Cir. 1972)
Royal Indus., Inc. v. Birdsong, 340 So. 2d 526 (Fla. 1st DCA 1976)
Mina Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972)
The Hotel & Rest. Emps. & Bartenders Int'l Union v. Lake Buena Vista Cmtys., Inc., 349 So. 2d 1217 (Fla. 4th DCA 1977)
Hous. Auth. OF the City OF Atlanta v. Millwood, 472 F.2d 268 (5th Cir. 1973)
Caissius Q. Viator, Jr. v. Morgan Constr. Co., 344 So. 2d 657 (Fla. 1st DCA 1977)

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