CONSOLIDATED ALUMINUM CORPORATION, ETC., APPELLANT,
v.
JACK WEINROTH, COOK UNITED, INC., ETC., APPELLEES
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Consolidated Aluminum Corporation appealed the trial court's denial of its motion to vacate a default judgment. The appellate court affirmed, holding that the appellant waived its challenge to personal jurisdiction by failing to raise it in its first pleading, and that the trial court did not abuse its discretion in finding the neglect inexcusable.
The trial court did not abuse its discretion in denying the motion to vacate because the neglect was inexcusable; the appellant waived any challenge to personal jurisdiction by failing to raise it in its first pleading or motion, and the late filing of the motion to quash service of process came too late to be effective.
[1] A gross abuse of discretion must be demonstrated to justify reversal of an order denying a motion to vacate a default.
[2] A defendant waives the right to contest personal jurisdiction by failing to object in the first step taken in the case, whether by motion or responsive pleading.
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Join FLexlaw to unlock all legal intelligence“To justify a reversal of an order denying a motion to vacate a default, the appellant must demonstrate a gross abuse of the trial court's discretion.”
Establishes the high standard of review for denial of motion to vacate default
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Join FLexlaw to unlock all legal intelligenceConsolidated Aluminum received a summons and complaint at its corporate headquarters, which was promptly forwarded to its Florida attorney. The attorn…
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ORFINGER, Chief Judge.
Appellant complains of error in the trial court’s denial of its motion to vacate a default.1 We affirm.
To justify a reversal of an order denying a motion to vacate a default, the appellant must demonstrate a gross abuse of the trial court’s discretion. North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla. 1962); Garcia Insurance Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977). No such showing is made here.
Appellant contends: (1) that because service of process upon it was defective, the default should have been vacated; and (2) that its subsequent motion to quash the defective service of process should have been granted. In the motion to vacate the default, to which appellant attached its proposed answer and affirmative defenses to demonstrate that it had a meritorious defense, appellant alleged that process had not been served on its proper officers. The record shows that process had been delivered to someone in its corporate headquarters and promptly forwarded by that person to appellant’s Florida attorney. Although having the service copy of the summons and complaint in hand in sufficient time to plead thereto, the Florida attorney took no action, relying instead on the advice of the secretary who forwarded the papers that there had been no service of process. These facts were asserted in the motion to vacate, not as a ground for quashing the process, but in an attempt to demonstrate excusable neglect which would justify vacating the default. The trial court found that the neglect was inexcusable, and denied the motion to vacate the default.
About a month and a half after serving the motion to vacate the default and a week after the court denied that motion, appellant filed the motion to quash service of process. The trial court held that by failing to object to personal jurisdiction in its first pleading, that issue had been waived, and although finding the service of process defective, it denied the motion to quash. The trial court was correct in so holding. A defendant wishing to contest personal jurisdiction must do so in the first step taken in the case, whether by motion or in a responsive pleading, or that issue is waived and defendant has submitted himself to the court’s jurisdiction. Fla.R.C.P. 1.140(b), 1.140(h); Miller v. Marriner, 403 So. 2d 472 (Fla. 5th DCA 1981).
Appellant’s motion to vacate the default, with its tendered answer, was not in opposition to the court’s jurisdiction over it, but was in recognition of that jurisdiction. Had the motion to vacate the default been granted, the tendered answer would have been immediately filed, and there would be little question about personal jurisdiction over appellant. The attack on the process filed only after the court denied the motion to vacate the default came too late.
The orders appealed from are AFFIRMED.
COBB and SHARP, JJ., concur. . An order denying a motion to vacate a default is an appealable non-final order under Rule 9.130(a)(3)(C)(iv), Fla.R.App.P. as an order determining liability in favor of a party seeking affirmative relief. See Doctor’s Hospital of Hollywood, Inc., v. Madison, 411 So. 2d 190 (Fla.1982).
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Cited By (22 total)
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Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So. 2d 794 (Fla. 4th DCA 1987)…f a preliminary motion or a responsive pleading, must raise the issue of personal jurisdiction or that issue is waived. Rule 1.140(b), Fla.R.Civ.P.; Miller v. Marriner, 403 So. 2d 472 (Fla. 5th DCA 1981); and Consolidated Aluminum Corp. v. Weinroth, 422 So. 2d 330 (Fla. 5th DCA 1982), petition for rev. den., 430 So. 2d 450 (Fla.1983). CSI also argues that its counterclaim was purely a defensive measure and did not seek affirmative relief, and therefore, by filing the counterclaim, it did not waive its right…
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EGF Tampa Assocs. v. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988)…ontest personal jurisdiction must do so in the first step taken in the case or that issue is waived. S.B. Partners v. Holmes, 479 So. 2d 280 (Fla. 2d DCA 1985), review denied, 488 So. 2d 68 (Fla.1986) (citing Consolidated Aluminum Corp. v. Weinroth, 422 So. 2d 330 (Fla. 5th DCA 1982), review denied, 430 So. 2d 450 (Fla.1983)). Appellants’ failure to move to quash the service of process initially, before it raised other defenses to the amended complaint by letter, resulted in their waiving the right to assert…
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Lennar Homes, Inc. v. Gabb Constr. Servs., Inc., 654 So. 2d 649 (Fla. 3d DCA 1995)…enied, 654 So. 2d 919 (Fla.1995); Zimmerman v. Weinberg, 557 So. 2d 193, 194 (Fla. 4th DCA 1990); Metropolitan Dade County v. Coats, 559 So. 2d 71, 73 (Fla. 3d DCA), review denied, 569 So. 2d 1279 (Fla.1990); Consolidated Aluminum Corp. v. Weinroth, 422 So. 2d 330, 331 (Fla. 5th DCA 1982), review denied, 430 So. 2d 450 (Fla.1983). In the instant case, the defendant filed a Motion to Dismiss Lennar’s complaint for, among other things, failure to state a cause of action, and also subsequently filed an Answer to…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Garcia Ins. Agency, Inc. v. Diaz, 351 So. 2d 1137 (Fla. 2d DCA 1977)
- Doctor's Hosp. OF Hollywood, Inc. v. Hunter W. Madison, 411 So. 2d 190 (Fla. 1982)
- Miller v. Marriner, 403 So. 2d 472 (Fla. 5th DCA 1981)