ERIC PERMENTER, APPELLANT,
v.
MARY LOU FEURTADO AND JOHN FEURTADO, HER HUSBAND, APPELLEES
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Eric Permenter, a Michigan resident, was sued by Florida residents over a car accident and received a default judgment after service of process failed. The appellate court reversed, holding that the plaintiffs failed to exercise adequate diligence in locating Permenter for proper substituted service and thus lacked personal jurisdiction over him.
The court reversed and remanded, holding that the trial court erred in denying Permenter's motion to quash service and vacate default because the plaintiffs failed to meet their burden of demonstrating diligent search and inquiry necessary to sustain substituted service of process under Florida law.
[1] A motion to stay litigation pending appeal does not constitute a waiver of a jurisdictional challenge if the motion does not seek affirmative relief.
[2] A defendant who timely asserts a challenge to the court's jurisdiction over the person is not prejudiced by participation in the trial and defending the matter thereafter…
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Join FLexlaw to unlock all legal intelligence“A defendant who timely asserts a challenge to the court's jurisdiction over the person of the defendant is not prejudiced by participation in the trial of the suit and defending the matter thereafter on the merits.”
Establishes that seeking a stay of proceedings does not waive jurisdictional challenges
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Join FLexlaw to unlock all legal intelligenceThe Feurtados filed suit against Permenter, a Michigan resident, arising from a Florida automobile accident. Service of process was sent to the Bay Ci…
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PER CURIAM.
In this interlocutory appeal, the defendant below claims error in the trial court’s denial of his motion to quash service and vacate default due to lack of personal jurisdiction. We reverse.
The Feurtados filed suit against Eric Permenter, a Michigan resident, as a result of a Florida automobile accident. In the accident report, Permenter listed a Bay City, Michigan address. When service of process sent to that address was returned as undeliverable due to the fact that the defendant had moved and left no forwarding address, plaintiffs motioned for default, which motion was granted. Upon notice of the default, Permenter, through his insurer, moved to vacate the default and to quash service on grounds that Permenter was not properly served notice of suit. The motion was denied, and Permenter now appeals.
First, we briefly address plaintiffs’/appellees’ motion that this appeal be dismissed based essentially on the allegation that defendant’s motion to stay the litigation pending this appeal amounts to a waiver of his jurisdictional challenge. We deny the motion to dismiss and hold that by his motion to stay proceedings below pending appeal, the defendant did not seek the type of affirmative relief necessary to waive a claim of lack of personal jurisdiction. See Hubbard v. Cazares, 413 So. 2d 1192, 1193 (Fla. 2d DCA 1981), review denied, 417 So. 2d 329 (Fla.1982) (“A defendant who timely asserts a challenge to the court’s jurisdiction over the person of the defendant is not prejudiced by participation in the trial of the suit and defending the matter thereafter on the merits.”).
Second, as to the defendant’s claim of lack of personal jurisdiction due to insufficient service of process, the record reveals a complete absence of diligence on the part of plaintiffs’ counsel in perfecting substituted service of process pursuant to sections 48.161 and 48.171, Florida Statutes (1987). It was incumbent upon the plaintiffs to diligently seek out the proper address of the defendant, especially in light of the fact that the accident report itself showed that there was a Florida passenger in Permenter’s car who plaintiffs could have attempted to contact for information on the defendant. Plaintiffs’ counsel knew the address for Permenter was three years old yet did nothing more to attempt to verify the address than check the Bay City, Michigan telephone directory, which did not show a listing for the defendant. Because plaintiffs failed to sustain the burden of diligent search and inquiry sufficient to sustain substituted service of process, see Robinson v. Cornelius, 377 So. 2d 776 (Fla. 4th DCA 1979); Leviten v. Gaunt, 360 So. 2d 112 (Fla. 3d DCA 1978); Bejar v. Garcia, 354 So. 2d 964 (Fla. 3d DCA 1978); Green v. Nashner, 216 So. 2d 492 (Fla. 3d DCA 1968), the defendant’s motion to quash service and vacate default should have been granted.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Heineken v. Heineken, 683 So. 2d 194 (Fla. 1st DCA 1996)…ersonal 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. 3d DCA 1982); and filing a motion to dissolve notice of lis pendens and to increase the amount of a temporary…
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Faller v. Faller, 51 So. 3d 1235 (Fla. 2d DCA 2011)…ern, Trust, 637 So. 2d 295, 296 (Fla. 4th DCA 1994) (objection to codefendant’s motion to share in foreclosure proceeds); Oy v. Carnival Cruise Lines, Inc., 632 So. 2d 724, 725 (Fla. 3d DCA 1994) (motion for protective order); Permenter v. Feurtado, 541 So. 2d 1331, 1331 (Fla. 3d DCA 1989) (motion to stay litigation pending appeal of denial of motion to vacate default and quash service); Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So. 2d 794, 795-96 (Fla. 4th DCA 1987) (answer and compulsory count…
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Snider v. Metcalfe, 157 So. 3d 422 (Fla. 4th DCA 2015)…) (request in motion to dismiss that trial court order spouse to pay attorney’s fees incurred in prosecuting the motion); Oy v. Carnival Cruise Lines, Inc., 632 So. 2d 724, 725 (Fla. 3d DCA 1994) (motion for protective order); Permenter v. Feurtado, 541 So. 2d 1331, 1331 (Fla. 3d DCA 1989) (motion to stay litigation pending appeal of denial of motion to vacate default and quash service). Appellees’ actions are not analogous to any of these. Cases from other jurisdictions have also held that defendants waive t…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hubbard v. Cazares, 413 So. 2d 1192 (Fla. 2d DCA 1981)
- Leviten v. Gaunt, 360 So. 2d 112 (Fla. 3d DCA 1978)
- Green v. Eugenie Nashner, 216 So. 2d 492 (Fla. 3d DCA 1968)
- Robinson v. Cornelius, 377 So. 2d 776 (Fla. 4th DCA 1979)
- Baker v. Baker, 377 So. 2d 776 (Fla. 4th DCA 1979)
- Yinto Bejar & State Farm Mut. Auto. Ins. Co. v. Zenaida Garcia, 354 So. 2d 964 (Fla. 3d DCA 1978)