RADICE CORPORATION AND FEATHER SOUND, INC., APPELLANTS,
v.
SOUND BUILDERS, INC. AND GREYWINDS FLORIDA, INC., APPELLEES
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The court affirmed the trial court's conclusion that venue was proper in Pinellas County, holding that service of process was perfected there before service was perfected in a similar lawsuit filed in Broward County.
The court held that venue was proper in Pinellas County because service of process was perfected in that county prior to service being perfected in the Broward County action.
[1] A party's agreement to accept service of process can constitute a waiver of formal service requirements, including the issuance and service of a summons.
[2] When two actions between the same parties and involving the same dispute are pending in different circuits, jurisdiction lies in the circuit where service of process is f…
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Join FLexlaw to unlock all legal intelligenceRadice and Greywinds entered into a contract dispute. Greywinds filed suit in Pinellas County, and Radice's attorney agreed to accept service. Radice …
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PER CURIAM.
This interlocutory appeal involves the propriety of the trial court’s conclusion that venue is proper in Pinellas County when a similar lawsuit involving the same parties and the same dispute had been filed in Broward County. We affirm.
The parties to this appeal entered into a contract in which Radice Corporation and Feather Sound, Inc. (Radice) agreed to buy certain properties from Greywinds Florida, Inc. and Sound Builders, Inc. (Greywinds). A dispute arose concerning the disbursement of escrow funds. The parties attempted to settle the matter but failed, and at the conclusion of unsuccessful negotia tions, Radice’s attorney agreed to accept service of a complaint for his clients in the event that Greywinds filed suit. On that date, February 3, 1984, Greywinds’ counsel mailed to Radice’s attorney a copy of the complaint in the Pinellas County lawsuit. The complaint was actually filed on February 6, 1984. Radice’s attorney admitted at a hearing that he received the complaint in the mail on February 6, 7 or 8, 1984. Due to Radice’s agreement to accept service, no summons was served.
In the meantime, Radice filed a lawsuit— arising out of the same contract involving the same land and the same parties—in Broward County on February 3, 1984. A summons was issued on February 3 and service of process was effected on Tuesday, February 7, 1984 at 2:00 p.m., as evidenced by the affidavit of service filed by the process server. Greywinds filed a motion to dismiss or abate the Broward County action because of improper venue and a motion to transfer based on the convenience of the parties and witnesses. These motions were denied on March 26, 1984.
Radice filed a motion to dismiss in the Pinellas County case, and the court heard oral argument on March 30,1984. Radice’s motion had been amended to include the contentions at issue here: that service of process had never been perfected in the Pinellas action, and that because the Pinel-las and Broward actions involved the same parties and the same dispute, the circuit in which service was first perfected—Bro-ward—had exclusive jurisdiction over the action. The trial judge found that the defendants had been properly served prior to service having been effected in the Bro-ward action and denied the motion to dismiss.
The time at which service of process was effected in both the Broward and Pi-nellas actions is crucial because “[w]hen two actions between the same parties are pending in different circuits, jurisdiction lies in the circuit where, service of process is first perfected.” Mabie v. Garden Street Management Corp., 397 So. 2d 920 (Fla.1981). This question has been characterized as one involving venue. Suggs v. Cowart, 437 So. 2d 238 (Fla. 5th DCA 1983). The Pinellas trial judge found that the defendants in the Pinellas action were properly served prior to service of the defendants in the Broward action, but the appellants contend that this conclusion is unsupported.
It is true that service in the Pinellas action was not perfected in accordance with the procedures set out in Florida Rule of Civil Procedure 1.070. In fact, a summons was not even issued. It is also disturbing that the complaint was mailed before actually having been filed, but Florida Rule of Civil Procedure 1.080(a) does contemplate that original papers may be filed immediately after service. Even though the manner of service did not comport with the statutory requirements, the trial judge appropriately found that the defendants had waived the necessity of service. Such a waiver is sufficient to enable the court to exercise jurisdiction over the defendant. See 41 Fla.Jur.2d Process § 14.
Radice’s attorney argues that he waived the necessity of service only to the extent that he waived his right to object to defects in service and that he did not thereby concede that service as it was effected constituted perfection of service of process. No basis exists, however, on which the opposing counsel or the trial judge could have concluded that Radice’s attorney intended only a partial waiver. Rather, having waived the right to object to defects in service, the defendants also waived the right to object to the legal ramifications of that waiver. This finding is especially appropriate in view of the opposing counsel’s reliance on Radice’s agreement to accept service. The trial judge also found that an agreement to accept service was by custom an agreement to accept a copy of the complaint without the necessity of having a summons issued or served.
Having found that the defendants had waived the necessity of service of pro cess, the trial judge found that the defendants’ attorney received the complaint in the mail prior to perfection of service in the Broward action. We see no basis on which to disturb this factual finding. Accordingly, we affirm.
RYDER, C.J., and SCHEB and OTT, JJ., concur.
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BAY City Mgmt., Inc. v. Henderson, 531 So. 2d 1013 (Fla. 1st DCA 1988)…on why service of process was not effected under section 48.071 is that no summons was ever issued against either Bay City or Tidewater. Although the issuance and service of a summons may be waived by agreement, Radice Corp. v. Sound Builders, Inc., 471 So. 2d 86 (Fla. 2nd DCA 1985), no such agreement was made here. The purpose of a summons and its service is to notify the defendant that he is being sued, tell him the nature of the litigation, give him an opportunity to defend, [*1016] and confer jurisdicti…
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Towers Constr. Co. OF Panama City, Inc. v. KEY W. Polo Club Apts., Ltd., 569 So. 2d 830 (Fla. 5th DCA 1990)…is ease erred by denying appellant’s motion to transfer venue of ap-pellee’s suit from Orange County to Monroe County. See also Contracted Services, Inc. v. W.W. Outpost, Inc., 502 So. 2d 527 (Fla. 3d DCA 1987); Radice Corp. v. Sound Builders, Inc., 471 So. 2d 86 (Fla. 2d DCA 1985). REVERSED and REMANDED for entry of transfer order. GOSHORN and PETERSON, JJ., concur.…
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Se. Bank, N.A. v. Krombach, 496 So. 2d 1002 (Fla. 5th DCA 1986)…directions to transfer the action to Duval County. 437 So. 2d at 240. Reversed and remanded with directions to transfer the cause against the bank to Pinellas County. DAUKSCH and ORFINGER, JJ., concur. . See Radice Corp. v. Sound Builders, Inc., 471 So. 2d 86 (Fla. 2d DCA 1985); Suggs v. Cowart, 437 So. 2d 238 (Fla. 5th DCA 1983).…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lefferts L. Mabie, Jr. v. Garden St. Mgmt. Corp., 397 So. 2d 920 (Fla. 1981)
- Venuti v. State, 437 So. 2d 238 (Fla. 5th DCA 1983)
- Suggs v. Cowart, 437 So. 2d 238 (Fla. 5th DCA 1983)