ELLIOTT ENTERPRISES, INC. AND SALVATION LTD., INC., APPELLANTS,
v.
JOSEPH SEROTA AND ROSE SEROTA, APPELLEES
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PER CURIAM.
The appellants, Elliott Enterprises, Inc. and Salvation Ltd., Inc., defendants and cross-defendants in the trial court, moved to dismiss the crossclaims filed against them by the Serotas on the ground of insufficiency of service of process, namely, that service by summons, not (as was done) by mail, was required. The trial court denied the motion, and pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), the appellants appeal.
We reverse the order under review upon the authority and reasoning of Fundaro v. Canadiana Corporation, 409 So. 2d 1099 (Fla. 4th DCA 1982), which unequivocally holds that crossclaims against co-defendants require service by summons unless, which is not the case here, that requirement is waived. Id. at 1100.
Reversed with directions to dismiss the crossclaims for insufficiency of service of process.
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Acquisition Corp. OF Am. & Kenneth v. Hemmerle, Sr., 543 So. 2d 878 (Fla. 4th DCA 1989)…leadings to conform to the evidence at trial, there is no authority to add a new party defendant to a claim to conform to the evidence. When a codefendant is sued on a cross-claim, service of summons is required. Elliot Enterprises, Inc. v. Serota, 436 So. 2d 415 (Fla. 3d DCA 1983); Fundaro v. Canadiana Corporation, 409 So. 2d 1099 (Fla. 4th DCA 1982). Clearly, this was not done here. While we note that the recent amendment to Florida Rule of Civil Procedure 1.170(g), effective January 1, 1989, eliminates th…
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Keithie's Roofing Co. Inc. v. LEE Parks Apts., Inc., 461 So. 2d 965 (Fla. 3d DCA 1984)…the appellant, Keithie’s Roofing Co., on the co-defendant-appellee’s cross-claim was invalid for lack of jurisdiction over the person because Keithie’s was not served with process on the cross-claim as required. Elliott Enterprises, Inc. v. Serota, 436 So. 2d 415 (Fla. 3d DCA 1983); Fundaro v. Canadiana Corp., 409 So. 2d 1099 (Fla. 4th DCA 1982). Accordingly, the order under review denying Keithie’s motion pursuant to Fla.R.Civ.P. 1.540 to vacate the judgment is reversed and the cause remanded for further pr…
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Meyer v. Roesel, 482 So. 2d 444 (Fla. 2d DCA 1986)…trustee with respect to the personal representative's cross-claim. Two of our sister courts have held that jurisdiction over a cross-elaim defendant must be obtained by personal service of a cross-claim summons. Elliott Enterprises, Inc. v. Serota, 436 So. 2d 415 (Fla.3d DCA 1983); Fundaro v. Canadiana Corp., 409 So. 2d 1099 (Fla. 4th DCA 1982). However, if a party takes some step in the proceeding or files a pleading to the merits of the cause, defects in service or jurisdictional defects are Waived. Sternb…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cirigliano v. Singer, 409 So. 2d 1099 (Fla. 3d DCA 1982)
- Fundaro v. Canadiana Corp., 409 So. 2d 1099 (Fla. 4th DCA 1982)