ELIGIO BARRIOS, APPELLANT,
v.
SUNSHINE STATE BANK, APPELLEE
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Barrios appeals the denial of his motion to dismiss for lack of personal jurisdiction and insufficient service of process. The court reversed, holding that filing a Motion for Enlargement of Time did not constitute a general appearance or waiver of jurisdictional defenses, and that the bank failed to comply with statutory requirements for service outside Florida.
The filing of a Motion for Enlargement of Time does not constitute a general appearance or waiver of jurisdictional defenses. Additionally, the bank failed to satisfy the statutory requirements under Florida Statutes sections 48.193(1)(g) and 48.194 for service of process outside the state, as no affidavit or competent evidence of proper personal service was submitted.
[1] A motion for enlargement of time filed by an attorney does not constitute a general appearance or a waiver of the defense of lack of personal jurisdiction or insufficienc…
[2] A general appearance cannot be presumed from a motion that does not address the merits of the case.
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Join FLexlaw to unlock all legal intelligence“it is a mere technical piece of paper and does not constitute a general appearance by Barrios' attorney reflecting submission to jurisdiction and waiver of defense”
Establishes that procedural motions like enlargement of time do not constitute general appearance or waive jurisdictional defenses
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Join FLexlaw to unlock all legal intelligenceBarrios, a Swiss resident and president of Goldstone Company, N.V., was sued as a guarantor on a $650,000 promissory note when Goldstone, Ltd. default…
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JORGENSON, Judge.
This is an appeal by Barrios from the trial court’s order denying his motion to dismiss. For the reasons which follow we reverse.
The single issue presented by this appeal is the question of whether the filing by Barrios’ attorney of a Motion for Enlargement of Time constituted a general appearance and hence a waiver of Barrios’ defense of lack of personal jurisdiction and insufficiency of service of process. It does not.
Barrios, a resident of Switzerland and president of Goldstone Company, N.V., was sued as a guarantor on Goldstone, Ltd.’s $650,000 promissory note and security agreement with Sunshine State Bank when Goldstone, Ltd., defaulted. A motion on behalf of Barrios and Goldstone Company, N.V., for enlargement of time within which to answer or otherwise respond to the complaint was granted. Thereafter, Barrios moved to dismiss the complaint, contending the court lacked personal jurisdiction over him due to a failure of service of process and insufficient service of process.
Sunshine State Bank’s contention that Barrios consented to jurisdiction by virtue of the Motion for Enlargement of Time is without merit. Although the motion states within: “with respect to the Complaint served upon them ...” (emphasis supplied), it is a mere technical piece of paper and does not constitute a general appearance by Barrios’ attorney reflecting submission to jurisdiction and waiver of defense, see Public Gas Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla.1982), affg Weath erhead, Co. v. Coletti, 392 So. 2d 1342 (Fla. 3d DCA 1980); nor could a general appearance be presumed by such motion which did not go to the merits of the case. See Moo Young v. Air Canada, 445 So. 2d 1102 (Fla. 4th DCA 1984); cf. McKelvey v. McKelvey, 323 So. 2d 651 (Fla. 3d DCA 1976).
Sunshine State Bank’s attempt to secure personal jurisdiction over Barrios pursuant to section 48.193(l)(g), Florida Statutes (1983), must satisfy section 48.194, Florida Statutes (1983),1 and it did not. See P.S.R. Associates v. Artcraft-Heath, 364 So. 2d 855 (Fla. 2d DCA 1978). No affidavit or competent evidence showing personal service as statutorily required was submitted.
The order under review is accordingly reversed.
Reversed.
. Section 48.194, Florida Statutes (1983), reads as follows:
Personal service outside state. — Service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made. (Emphasis supplied.)
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Kimbrough v. Rowe, 479 So. 2d 867 (Fla. 5th DCA 1985)…oint has no merit. Prior Florida decisions have ruled that defensive actions undertaken by defendants do not constitute requests for affirmative relief inconsistent with their initial defense of lack of jurisdiction: Barrios v. Sunshine State Bank, 456 So. 2d 590 (Fla. 3d DCA 1984); Orange Motors v. Donnelley, 415 So. 2d 892 (Fla. 3d DCA 1982); Public Gas Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla.1982); Periolat v. Periolat, 336 So. 2d 1256 (Fla. 2d DCA 1976); Green v. Roth, 192 So. 2d 537 (Fla. 2d DCA 19…
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Heineken v. Heineken, 683 So. 2d 194 (Fla. 1st DCA 1996)…Other requests said to be for affirmative relief have been held not to be inconsistent with an objection to personal jurisdiction and not to waive the objection. Such requests include: filing a motion to enlarge time, Barrios v. Sunshine State Bank, 456 So. 2d 590 (Fla. 3d DCA 1984); filing a motion to stay litigation pending appeal, Permenter v. Feurtado, 541 So. 2d 1331 (Fla. 3d DCA 1989); filing a motion for continuance, Orange Motors of Coral Gables, Inc. v. Rueben H. Donnelley Corp., 415 So. 2d 892 (Fla.…
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DiGIOVANNI v. BAC Home Loans Servicing, L.P., 83 So. 3d 934 (Fla. 2d DCA 2012)
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pub. GAS Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla. 1982)
- McKELVEY v. McKELVEY, 323 So. 2d 651 (Fla. 3d DCA 1976)
- Young v. AIR Canada, 445 So. 2d 1102 (Fla. 4th DCA 1984)
- P. S. R. Assocs. v. Artcraft-Heath, 364 So. 2d 855 (Fla. 2d DCA 1978)
- Weatherhead Co. v. Coletti, 392 So. 2d 1342 (Fla. 3d DCA 1980)