RICHARD HERVIS AND PENINSULAR FIRE INSURANCE COMPANY, PETITIONERS,
v.
ROGELIO VALDEZ AND MARIA VALDEZ, HIS WIFE, RESPONDENTS
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Richard Hervis and his liability insurer Peninsular Fire Insurance Company sought review of a trial court order denying their motion to withdraw an answer and counterclaim filed on Hervis's behalf. The court reversed, holding that an attorney's appearance and filing on behalf of a defendant who was never served with process and did not authorize the representation cannot constitute a valid voluntary appearance.
The trial court erred in denying the motion to withdraw the answer and counterclaim and set aside the order striking defenses. An appearance by counsel without service of process on the defendant and without the defendant's knowledge or authority cannot constitute a valid voluntary appearance, and therefore the default judgment must be set aside.
[1] A court may not strike a defendant's defenses or enter a default judgment against them when the defendant has not been properly served with process.
[2] An attorney's appearance on behalf of a defendant without the defendant's knowledge or authorization is not a voluntary appearance that confers jurisdiction over the defe…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The defendant not having been served, the appearance was at best only a voluntary appearance, and it could not be voluntary without the knowledge or authority of the defendant.”
This quotation from St. Lucie Estates Inc. v. Palm Beach Plumbing Supply Co. (1930) establishes the controlling legal principle that an appearance by counsel without service of process and without the defendant's knowledge or authority is invalid.
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Join FLexlaw to unlock all legal intelligenceRichard Hervis was insured under a liability policy issued by Peninsular Fire Insurance Company. The Valdez plaintiffs sued both Hervis and Peninsular…
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PER CURIAM.
By petition for writ of certiorari, Richard Hervis and Peninsular Fire Insurance Company seek review of an order denying their motion for leave to withdraw answer and counterclaim and set aside order on plaintiffs’ motion to strike defenses and petition for rehearing.
Richard Hervis was insured under a liability policy issued by Peninsular Fire Insurance Company. Plaintiffs Rogelio Valdez and his wife instituted a negligence action against Hervis and his liability insurer Peninsular. Although Peninsular was served through the Insurance Commissioner, Hervis himself was never served personally 1 or by substitute service of process. Counsel for Peninsular filed a motion to dismiss on behalf of Peninsular and also filed an answer and counterclaim on behalf of Hervis (without his knowledge). Thereafter, Hervis was noticed for deposition and he did not appear. Upon the motion of Valdez the court entered an order directing Hervis to sit for deposition and further stated that if he failed to appear, the court would strike his defenses upon application by Valdez. Hervis was again noticed for deposition but the. subpoena for deposition was not served upon him. He failed to appear and the court entered an order striking the defenses of Hervis and Peninsular and granting a default as to liability. Counsel for Peninsular filed a petition for rehearing and a subsequent motion for leave to withdraw answer and counterclaim and set aside the order striking defenses. In support of the motion, counsel for Peninsular argued that he had filed the answer and counterclaim on behalf of Hervis upon the mistaken belief that Hervis had been served with process; he had been retained by Peninsular, not Hervis personally, to afford him a defense and, finally, Hervis had not authorized him to appear on his behalf. After a hearing, the trial court entered the order herein under review denying motion for leave to withdraw answer and counterclaim and set aside order on plaintiffs’ motion to strike and petition for rehearing.
Disposition of this appeal is controlled by the following finding in St. Lucie Estates Inc. v. Palm Beach Plumbing Supply Co., 101 Fla. 205, 212, 133 So. 841, 844. (1930):
“The defendant not having been served, the appearance was at best only a voluntary appearance, and it could not be voluntary without the knowledge or authority of the defendant.”
Similarly, in the case at bar, Hervis was not served and the representation by counsel for Peninsular could not be considered voluntary as such appearance on his behalf was without the knowledge or authority of Hervis. We, therefore, conclude that the trial court erred in denying the motion to withdraw answer and counterclaim and set aside order on plaintiffs’ motion to strike defenses. Accordingly, the order denying motion to withdraw answer and counterclaim and set aside order on plaintiffs’ motion to strike defenses is quashed and the cause remanded to the trial court with directions to grant the motion.
Certiorari granted.
. Service was returned because Hervis could not be located at the address listed on the summons.
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Anthony v. Gary J. Rotella & Assocs., P.A., 906 So. 2d 1205 (Fla. 4th DCA 2005)…ve responsive pleadings, motions, or papers. Id.; see Beckwith v. Bailey, 119 Fla. 316, 161 So. 576 (1935). Second, the defending party can authorize his attorney to accept the initial pleadings without service of process. Id.; see Hervis v. Valdez, 381 So. 2d 733 (Fla. 3d DCA 1980). Third, a defending party can agree to accept service of process by mail. Id.; see Barker v. Greenstreet Fin., 823 So. 2d 195 (Fla. 3rd DCA 2002). In Caban v. Skinner, service was made on an employee at the defendant’s residence.…
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Jerolaman v. Frieda van Buren, 512 So. 2d 1138 (Fla. 1st DCA 1987)…has the right to control the defense of this suit and that the answer was filed without the knowledge or authorization of the carrier.5 Appellee, contending that the answer filed on behalf of appellee was “involuntary,” relies upon Hervís v. Valdez, 381 So. 2d 733 (Fla. 3rd DCA 1980). In Hervís the insurer's counsel filed an answer on behalf of the insured without the latter’s knowledge. The insured had never been served. The trial court later entered a default against the insured and his insurer for the insu…
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Galarza v. Arregui, 422 So. 2d 1091 (Fla. 3d DCA 1982)…na Maria Galarza’s motion to dismiss for lack of jurisdiction since it is apparent from this record that no service of process was ever obtained upon this defendant nor did she voluntarily make an appearance before the trial court. Hervis v. Valdez, 381 So. 2d 733 (Fla. 3d DCA 1980); Woods v. Luby Chevrolet, Inc., 402 So. 2d 1316 (Fla. 4th DCA 1981), petition for review denied, 412 So. 2d 467 (Fla.1982). Reversed and remanded.…
Authorities Cited
- St. Lucie Ests. Inc. v. Palm Beach Plumbing Supply Co., 101 Fla. 205 (Fla. 1930)