L. MELVIN TUCKER, APPELLANT,
v.
DIANNE ELECTRIC, INC., APPELLEE
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Tucker, a New Hampshire resident, appeals from a default judgment entered against him by a Florida trial court. The court reversed, finding that the trial court lacked personal jurisdiction over Tucker because service of process was not properly accomplished under Florida's Long-Arm statutes, making the judgment void.
The default judgment is void because the trial court lacked personal jurisdiction over Tucker. Although Tucker's conduct in Florida (engaging the plaintiff to repair his boat) would have been sufficient to establish jurisdiction under section 48.193(1)(g), service was never properly accomplished pursuant to section 48.194. Additionally, jurisdiction could not be established under section 48.071 because the complaint failed to allege Tucker was engaged in business in Florida and the evidence did not establish Joyce as Tucker's authorized business agent.
[1] A judgment entered against a party without personal jurisdiction may be collaterally attacked at any time.
[2] A motion to set aside a final judgment entered after default is an appropriate method to challenge a void judgment lacking personal jurisdiction.
Previewing 2 of 6 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“A judgment which is entered against a party without personal jurisdiction over that party can be collaterally attacked at any time.”
Establishes the fundamental principle that void judgments lacking personal jurisdiction can be attacked at any time, justifying Tucker's challenge.
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Join FLexlaw to unlock all legal intelligenceTucker owns a fishing trawler named the Lynne Ellen that arrived in Port Canaveral for electrical repairs. George Joyce, allegedly Tucker's agent, ret…
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SHARP, Judge.
Tucker, a New Hampshire resident, appeals from the trial court’s denial of his motion to set aside its final judgment1 for damages against him (totaling $3,973.40), which was based on a default. He claims the judgment is void because he was not subject to the jurisdiction of the Florida courts under any “Long-Arm” statute, and he was not personally served by process in Florida. We agree, and accordingly, we reverse this matter for further proceedings.
A judgment which is entered against a party without personal jurisdiction over that party can be collaterally attacked at any time. McAlice v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979); Craven v. J. M. Fields, Inc., 226 So. 2d 407 (Fla. 4th DCA 1969). A motion to set aside a final judgment entered after default pursuant to Florida Rule of Civil Procedure 1.540(b), is an appropriate way to challenge such a “void” judgment. Parish Mortgage Corporation v. Davis, 251 So. 2d 342 (Fla. 3d DCA), cert. denied 254 So. 2d 789 (Fla.1971).
Tucker filed a motion to quash service on January 26, 1978. The court entered two different orders denying Tucker’s motion to quash: one dated May 22, 1978 and one dated November 22, 1978. Both ordered Tucker to file pleadings within 20 days. Tucker filed a motion for rehearing on November 27, 1978, but he filed no other pleadings. The plaintiff moved for a default judgment on March 19, 1978, which the court granted on May 10, 1978.
Tucker did not take interlocutory appeals from the denials of his motions to quash.2 Therefore the issue on this appeal is whether the record, at the time the court last denied the motion to quash on November 22, 1978, established a sufficient basis for obtaining personal jurisdiction over Tucker under one of Florida’s applicable “Long-Arm” statutes.3
If a plaintiff fails to allege a sufficient jurisdictional basis to acquire personal jurisdiction over a non-resident defendant, the defendant may raise the jurisdictional issue by a simple motion to quash. Or, if the complaint is sufficient, the defendant may challenge the jurisdictional facts by filing affidavits and proofs. Then the plaintiff must counter with affidavits and other proofs to make a prima facie showing that the court has jurisdiction. Electro Engineering Products Co. v. Lewis, 352 So. 2d 862 (Fla.1977); Young v. Young, 382 So. 2d 355 (Fla. 5th DCA 1980).
Tucker’s first motion to quash should have been granted whether jurisdiction was claimed under section 48.071 or 48.193 because the record failed to show proper service of process on Tucker under either statute. Section 48.193 requires service by a sheriff in Tucker’s state, pursuant to section 48.194. Service under section 48.071 requires proof that copies of the process were sent by registered or certified mail to the defendant. On August 25, 1978, the plaintiff belatedly filed the proof of service pursuant to section 48.071; but has not sought to complete service pursuant to section 48.193.
Dianne Electric’s complaint alleged that Tucker owns a fishing trawler named the Lynne Ellen (also known as the Devil Fish) which arrived in Port Canaveral for repairs. George Joyce, as Tucker’s “agent,” retained the plaintiff to do electrical work. The work was completed in January of 1978, and the plaintiff was not paid. George Joyce was served as Tucker’s “business agent.” By November 22, 1978, Tucker filed proofs challenging the plaintiff’s alleged jurisdictional facts. In an affidavit, George Joyce denied that he was the business manager for Tucker or the Lynne Ellen. In response to interrogatories, he denied he was the captain of the Lynne Ellen when the work was contracted for and performed, or that Tucker authorized him to have the work done.
The plaintiff filed counter proofs consisting of an affidavit alleging that George Joyce engaged the plaintiff to perform the repairs and that he represented he was “in charge” of the Lynne Ellen. The president of the plaintiff stated in his deposition on file that he talked with Tucker in January 1978. aboard the Lynne Ellen. Tucker told him Tucker was the owner, Joyce was the captain, and Tucker was aware that Dianne Electric was doing repair work on his boat.
This status of the record would have been enough to establish jurisdiction over Tucker, under section 48.193(l)(g) had service been accomplished under section 48.194. There was a sufficient showing that Tucker came to Florida and engaged the plaintiff to perform repair service on his fishing boat. His failure to pay when the work was complete was a breach of contract in this state and the suit clearly arose out of that breach of contract.4 However the record fails to show that service of process on Tucker was ever accomplished pursuant to section 48.194. Strict compliance with the steps outlined in the statutes for obtaining personal jurisdiction over non-residents not personally served in this state is required. McAlice v. Kirsch, Parish Mortgage Corporation v. Davis.
The “reach” of section 48.071 is considerably “shorter” than section 48.193. This section requires allegations and proofs, if challenged, that the person sought to be served “engages in business in this state.” Process may then be served “on the person who is in charge of any business in which the defendant is engaged within this state at the time of service, including agents soliciting orders for goods, wares, merchandise, or services.” § 48.071, Fla.Stat. (1979). The complaint in this case fails to allege that the defendant is engaged in any busi ness in Florida. As such, it was open to jurisdictional attack by the defendant’s motion to quash. The defendant further challenged the jurisdictional basis under section 48.071 through Joyce’s affidavit denying he was Tucker’s agent in charge of Tucker’s business at the time of service. The plaintiff’s counter proofs completely fail to meet these issues. Because the complaint and the plaintiff’s counter proofs fail to establish a prima facie basis for personal jurisdiction over Tucker pursuant to section 48.071, the plaintiff’s motion to quash should have been granted. Hyco Mfg. Co. v. Rotex Intern. Corp., 355 So. 2d 471 (Fla. 3d DCA 1978).
For the reasons stated, the order of the trial court denying Tucker’s motion to set aside the judgment is reversed, and this cause is remanded with direction that the judgment and default be set aside and the service quashed, without prejudice to the plaintiff to proceed to obtain service on the defendant in the manner provided by law.
REVERSED and REMANDED.
ORFINGER and COWART, JJ., concur. . The appellant labeled this pleading a “Motion to Dismiss and Motion to Set Aside Default,” but for purposes of this appeal, we ruled that it should be treated as a motion for relief from a final judgment pursuant to Florida Rule of Civil Procedure 1.540(b).
. Fla.R.App.P. 9.I30(a)(3)(C)(i).
. §§ 48.071 and 48.193, Fla.Stat. (1979).
. Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So. 2d 1082 (Fla. 2d DCA 1977); First National Bank of Kissimmee v. C. M. Dunham, 342 So. 2d 1021 (Fla. 4th DCA 1977).
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Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So. 2d 758 (Fla. 3d DCA 1986)…v. Dade Home Services, Inc. 277 So. 2d 544 (Fla. 3d DCA 1973). On motion, a court may, at any time, relieve a party from a void final judgment. See Sams Food Store, Inc. v. Alvarez, 443 So. 2d 211 (Fla. 3d DCA 1983); Tucker v. Dianne Electric, Inc. 389 So. 2d 683 (Fla. 5th DCA 1980); McAlice. See also Ramagli Realty Co. v. Craver, 121 So. 2d 648 (Fla.1960) (the passage of time cannot make valid that which has been void). The Falkners filed a sworn motion to vacate and set aside the orders of dismissal where…
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Fla. Power & Light Co. v. The Canal Auth. OF the State OF Fla., 423 So. 2d 421 (Fla. 5th DCA 1982)…nation actions [*426] and the present trial court properly denied appellant’s motion for relief from the judgments in those actions and is hereby AFFIRMED. FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur. . See, e.g., Tucker v. Dianne Elec., Inc., 389 So. 2d 683 (Fla. 5th DCA 1980). . Gulf Power Co. v. Stack, 296 So. 2d 572 (Fla. 1st DCA 1974). . Salfi v. Division of Admin., State Dep’t of Transp., 312 So. 2d 781 (Fla. 4th DCA 1975). . Florida E. Coast Ry Co. v. City of Miami, 346 So. 2d 621 (Fla. 3d DCA…
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Space Coast Credit Union v. THE First, 467 So. 2d 737 (Fla. 5th DCA 1985)…89 Fla. 712, 191 So. 2 (1939); Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926); Whigham v. Whigham, 464 So. 2d 674 (Fla. 5th DCA 1985); Florida Power & Light Co. v. Canal Authority, 423 So. 2d 421 (Fla. 5th DCA 1982); Tucker v. Dianne Elect., Inc., 389 So. 2d 683 (Fla. 5th DCA 1980); T.J.K. v. N.B., 237 So. 2d 592 (Fla. 4th DCA 1970). See also De-Claire v. Yohanan, 453 So. 2d 375 (Fla. 1984) (where judgment is void, there is no time limitation under Rule 1.540(b)). Although a garnishment proceeding is ancil…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Electro Eng'g Prods. Co., Inc. v. Lewis, 352 So. 2d 862 (Fla. 1977)
- Hyco Mfg. Co. v. Rotex Int'l Corp., 355 So. 2d 471 (Fla. 3d DCA 1978)
- Madax Int'l Corp. v. Delcher Intercontinental Moving Servs., Inc., 342 So. 2d 1082 (Fla. 2d DCA 1977)
- Craven v. J. M. Fields, Inc., 226 So. 2d 407 (Fla. 4th DCA 1969)
- McALICE v. Kirsch, 368 So. 2d 401 (Fla. 3d DCA 1979)
- Parish Mortg. Corp. v. Lowry W. Davis and Guion T. De Loach, 251 So. 2d 342 (Fla. 3d DCA 1971)
- The First Nat'l Bank OF Kissimmee v. Dunham, 342 So. 2d 1021 (Fla. 4th DCA 1977)
- State v. Gustafson, 254 So. 2d 789 (Fla. 1971)
- McALLISTER v. State, 254 So. 2d 789 (Fla. 1971)
- Interlandi v. Town OF Lantana, 342 So. 2d 1021 (Fla. 4th DCA 1977)