ALAN CUMMINGS, APPELLANT,
v.
PALM BEACH MARBLE & TILE, INC., HELENE CUMMINGS AND R.S. BLACK, INC., APPELLEES
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Appellant waived his objection to service of process by filing a cross-claim seeking affirmative relief, and the trial court correctly denied his motion to dismiss and quash service.
A party waives objections to service of process by filing a cross-claim against another party seeking affirmative relief.
[1] A defendant waives objections to service of process on a cross-claim by filing his own cross-claim against the opposing party seeking affirmative relief.
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Join FLexlaw to unlock all legal intelligencePalm Beach Marble & Tile sued Alan Cummings, Helene Cummings, and R.S. Black, Inc. Black filed a cross-claim against Alan Cummings, who answered and r…
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DOWNEY, Judge.
This is a timely appeal from a non-final order denying appellant’s motion to dismiss a cross-claim for insufficiency of service of process and to quash service of process.
Appellee, Palm Beach Marble & Tile, Inc., (P.B. Marble) sued Appellant, Alan Cummings, and appellees, Helene Cummings and R.S. Black, Inc., (Black). Thereafter, Black filed a cross-claim against Alan Cummings, which Cummings answered, including a defense of insufficiency of service of process. Alan Cummings then filed a cross-claim against Black. Finally, Alan Cummings filed a motion to dismiss for insufficiency of service of process and motion to quash service of process, which the court heard and denied. This appeal is to review that order. The trial court denied Cummings’ motion to dismiss and quash, based upon insufficiency of service of process, because Cummings had waived his objection to service of process by himself filing a cross-claim against Black. This was a correct ruling by the trial court. Had Cummings not invoked the jurisdiction of the trial court by himself filing a cross-claim asking for affirmative relief, he could have maintained his defensive posture and required Black to serve him with a summons to obtain jurisdiction over Cummings regarding Black’s cross-claim. By filing his own cross-claim Cummings waived that right. Shurden v. Thomas, 134 So. 2d 876 (Fla. 1st DCA 1961). See also Hubbard v. Cazares, 413 So. 2d 1192 (Fla.2d DCA 1981).
Accordingly the order appealed from is affirmed.
GLICKSTEIN and GUNTHER, JJ., concur.
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Babcock v. Whatmore, 707 So. 2d 702 (Fla. 1998)…r filing a counter claim or bringing a cross action, or if he requests or consents that a particular court take jurisdiction, or accepts benefits resulting from the court's exercise of jurisdiction.”); cf. Cummings v. Palm Beach Marble & Tile, Inc., 497 So. 2d 711, 711 (Fla. 4th DCA 1986)("Had Cummings not invoked the jurisdiction of the trial court by himself, filing a cross-claim asking for affirmative relief, he could have maintained his defensive posture....”). But see Scarso v. Scarso, 488 So. 2d 549, 55…
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Banco de Costa Rica v. Norberto Rodriguez, 550 So. 2d 76 (Fla. 3d DCA 1989)…251 So. 2d 342 (Fla. 3d DCA), cert. denied, 254 So. 2d 789 (Fla.1971), unless defendant voluntarily submits to the jurisdiction of the court. Public Gas Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla.1982); Cummings v. Palm Beach Marble & Tile, Inc., 497 So. 2d 711 (Fla. 4th DCA 1986); McKelvey v. McKelvey, 323 So. 2d 651 (Fla. 3d DCA 1976). A defense citing lack of personal jurisdiction must be raised in the first pleading, or it is waived. Fla.R.Civ.P. 1.140(b), (h). Rodriguez asserts that Banco waived its…
Authorities Cited
- Hubbard v. Cazares, 413 So. 2d 1192 (Fla. 2d DCA 1981)
- Shurden v. Thomas, 134 So. 2d 876 (Fla. 1st DCA 1961)