TAMPA ASSOCIATES, LTD., A FLORIDA LIMITED PARTNERSHIP, APPELLANT,
v.
MIAMI ELEVATOR COMPANY, A DELAWARE CORPORATION, APPELLEE
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Tampa Associates challenges a default judgment entered against it, arguing the judgment must be reversed because service of process was improperly effected on a person not designated as the partnership's representative. The court agrees and reverses, holding that the improper service defense was timely raised and defeats the default judgment as a matter of law.
The improper service defense was not waived because although not expressly mentioned in the initial motion, the defendant reserved the right to raise additional grounds in a later pleading, and the supplement raising the issue was filed at the first opportunity. Supplemental or amended pleadings relate back to the original pleading, satisfying the requirement that defenses be raised at the first opportunity. An impropriety of service ipso facto defeats a default judgment.
[1] Improper service of process defeats a default judgment.
[2] A defense is not waived by being joined with other defenses or objections in a responsive pleading or motion.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“since an impropriety of service ipso facto defeats a default, Sams Food Stores, Inc. v. Alvarez, 443 So.2d 211 (Fla. 3d DCA 1983); Mac Organization v. Harry Rich Corp., 374 So.2d 81 (Fla. 3d DCA 1979), the judgment below is reversed for further consistent proceedings”
Establishes the controlling legal principle that improper service is a fundamental defect that automatically defeats a default judgment
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Join FLexlaw to unlock all legal intelligenceService of process was effected upon a person who was not designated as a representative of Tampa Associates, a Florida limited partnership, in violat…
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SCHWARTZ, Chief Judge.
The default judgment under review is reversed because, as is admitted, service of process was improperly effected upon a person who was not designated as a representative of the appellant partnership as required by section 48.061(3), Florida Statutes (1987).
In defense of its judgment, the appellee contends only that the improper service defense was waived because, it argues, the assertion was not made as required in the initial pleading filed by the defendant when it attempted to set the default judgment aside. See Fla.R. Civ.P. 1.140(b); Consolidated Aluminum Corp. v. Weinroth, 422 So. 2d 330 (Fla. 5th DCA 1982), pet. for review denied, 430 So. 2d 450 (Fla.1983); Miller v. Marriner, 403 So. 2d 472 (Fla. 5th DCA 1981).
See generally 2A W. Moore & J. Lucas, Moore’s Federal Practice § 12.23 (2d ed. 1987).
We disagree.
The record shows that while the initial motions were filed without express mention of the issue, the defendant expressly reserved the right to raise additional grounds in a later pleading. In fact, a supplement to the initial motion, which was filed within a period agreed to by the plaintiff, indeed raised the contention that service had been improperly accomplished. When the trial judge initially passed upon the defendant’s motion to set aside the default, this ground was among those presented to and rejected by the court. Since this was the case, and since supplemental or amended pleadings are deemed to revert back to the first one, we hold that the contention was appropriately raised at the “first opportunity” rather than in a forbidden subsequent or repetitive motion or pleading.
Hence, it was properly preserved below. Fla.R.Civ.P. 1.140(b) (“No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion ”); Vann v.
First Nat’l Bank, 324 So. 2d 94 (Fla. 3d DCA 1975); see Beal v.
Third Nat’l Bank, 350 So. 2d 840 (Fla. 1st DCA 1977); Fla.R. Civ.P. 1.190(a), (c) (amendment as of right before responsive pleading relates back to original); see also Jonnet v. Dollar Savs. Bank, 530 F. 2d 1123, 1125 n. 5 (3d Cir.1976).
Since an impropriety of service ipso fac-to defeats a default, Sams Food Stores, Inc. v. Alvarez, 443 So. 2d 211 (Fla. 3d DCA 1983); Mac Organization v. Harry Rich Corp., 374 So. 2d 81 (Fla. 3d DCA 1979), the judgment below is reversed for further consistent proceedings.
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M.T.B. Banking Corp. v. da Silva, 592 So. 2d 1215 (Fla. 3d DCA 1992)…and motion did not waive the personal jurisdiction defense. Montero v. Duval Fed. Sav. & Loan Ass’n of Jacksonville, 581 So. 2d 938 (Fla. 4th DCA 1991); Dimino v. Farina, 572 So. 2d 552 (Fla. 4th DCA 1990); Tampa Assoc., Ltd. v. Miami Elevator Co., 545 So. 2d 458 (Fla. 3d DCA 1989); Zarcone v. Lesser, 190 So. 2d 805 (Fla. 3d DCA 1966); Fla.R.Civ.P. 1.140(b) (“No defense or objection is waived [*1216] by being joined with other defenses or objections in a responsive pleading or motion.”)- The order is therefo…1 / 2
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Montero v. DuVAL Fed. Sav. & Loan Ass'n OF Jacksonville, 581 So. 2d 938 (Fla. 4th DCA 1991)…er motion to quash service of process as part of her initial pleading in compliance with Rule 1.140(b). See Cumberland Software, Inc. v. Great American Mortgage Corp., 507 So. 2d 794 (Fla. 4th DCA 1987); Tampa Associates, Ltd. v. Miami Elevator Co., 545 So. 2d 458 (Fla. 3d DCA 1989); Zarcone v. Lesser, 190 So. 2d 805 (Fla. 3d DCA 1966). Appellee failed to effect valid service of process on appellant and therefore the judgment of foreclosure is void [*940] and must be set aside and stricken from the record. Se…
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Boice v. Warnstedt, 696 So. 2d 448 (Fla. 4th DCA 1997)…an Mortg. Corp., 507 So. 2d 794 (Fla. 4th DCA 1987); Consolidated Aluminum Corp. v. Weinroth, 422 So. 2d 330 (Fla. 5th DCA 1982). See also Fundara v. Canadiana Corp., 409 So. 2d 1099 (Fla. 4th DCA 1982); Tampa Associates, Ltd. v. Miami Elevator Co., 545 So. 2d 458 (Fla. 3d DCA 1989); EGF Tampa Associates v. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988); Bay City Management, Inc. v. Henderson, 531 So. 2d 1013 (Fla. 1st DCA 1988). We remand for the trial court to reinstate the final judgment. STONE, C.J., and…
Authorities Cited
- Jonnet v. Dollar Sav. Bank of the City of N.Y., 530 F.2d 1123 (3d Cir. 1976)
- Consol. Aluminum Corp. v. Weinroth, 422 So. 2d 330 (Fla. 5th DCA 1982)
- Miller v. Marriner, 403 So. 2d 472 (Fla. 5th DCA 1981)
- The MAC Org., Inc. v. Harry Rich Corp., 374 So. 2d 81 (Fla. 3d DCA 1979)
- Vann v. First Nat'l Bank IN Little Rock, 324 So. 2d 94 (Fla. 3d DCA 1975)
- Sams Food Store, Inc. v. Daysee Alvarez, 443 So. 2d 211 (Fla. 3d DCA 1983)
- Beal v. Third Nat'l Bank, 350 So. 2d 840 (Fla. 1st DCA 1977)