REX DANIEL ZIMMERMAN, APPELLANT,
v.
NATHAN WEINBERG, APPELLEE
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Zimmerman appeals the trial court's denial of his motion to vacate a default judgment entered against him in a motorcycle accident lawsuit. The court affirmed, holding that Zimmerman's earlier filing of a motion to dismiss for failure to prosecute constituted a general appearance that waived any jurisdictional challenge based on insufficiency of substituted service.
The court affirmed the denial of the motion to vacate default, holding that Zimmerman waived his jurisdictional claim by filing the motion to dismiss for failure to prosecute. The motion constituted a general appearance because it involved the merits of the plaintiff's claim and his right to maintain the suit, thereby waiving any prior objection to lack of personal jurisdiction.
[1] Filing a motion to dismiss for failure to prosecute constitutes a general appearance and waives a claim of lack of personal jurisdiction.
[2] A party makes a general appearance and waives a lack of jurisdiction claim by filing a motion that goes to the merits of the plaintiff's claim and the right to maintain t…
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Join FLexlaw to unlock all legal intelligence“a waiver of a lack of jurisdiction claim does occur when a party makes an appearance and claims rights under available Rules of Civil Procedure”
Establishes the central legal principle that substantive motions claiming procedural rights constitute a general appearance that waives jurisdictional objections.
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Join FLexlaw to unlock all legal intelligenceWeinberg sued Zimmerman for damages from a motorcycle accident. After substituted service, Zimmerman failed to respond and the clerk entered a default…
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GARRETT, Judge.
Appellant seeks review of the denial of his motion to vacate default. Appellee sued appellant for damages from a motorcycle accident. After substituted service, appellant did not respond and the clerk entered a default. After fourteen months, appellant filed a motion to dismiss for failure to prosecute, but at the hearing the trial judge found record activity and denied the motion. Later, appellant failed to get the pending trial continued so he could prepare the motion to vacate default raising insufficiency of the substituted service as its sole issue. The trial court eventually denied the motion to vacate default without written explanation, but the record indicates that the judge adopted appellee’s argument that appellant had waived his claim of lack of jurisdiction by filing the various motions.
We affirm. Although filing a motion to continue in order to prepare an “answer or otherwise respond to the complaint” does not subject one to the jurisdiction of a court, Barrios v. Sunshine State Bank, 456 So. 2d 590 (Fla. 3d DCA 1984), a waiver of a lack of jurisdiction claim does occur when a party makes an appearance and claims rights under available Rules of Civil Procedure. Joannou v. Corsini, 543 So. 2d 308, 311 (Fla. 4th DCA 1989); Banco De Costa Rica v. Rodriguez, 550 So. 2d 76, 77 (Fla. 3d DCA 1989). We believe our opinion also comports with this court’s holding in Moo Young v. Air Canada, 445 So. 2d 1102 (Fla. 4th DCA 1984), that motions which “go to the merits” 1 constitute a general appearance. Moo Young cited McKelvey v. McKelvey, 323 So. 2d 651, 653 (Fla. 3d DCA 1976), which held “a general appearance ordinarily will be effected by making a motion involving the merits of plaintiff’s claim and his right to maintain the suit and secure the relief sought.”
Appellant’s motion to dismiss for failure to prosecute acted as a waiver of his claim of lack of jurisdiction. The motion utilized Florida Rule of Civil Procedure 1.420(e) and involved substantial legal rights of the parties which affected the plaintiff’s right to maintain the suit and secure the relief sought.2
Although we find that the motion sub judice satisfies the Joannou and Rodriguez and Moo Young criteria, we certify the following question as one of great public importance:
DOES AN APPEARANCE BY THE FILING OF A MOTION TO DISMISS FOR FAILURE TO PROSECUTE, OR OTHERWISE CLAIMING RIGHTS UNDER THE RULES OF CIVIL PROCEDURE, CONSTITUTE A WAIVER OF A CLAIM OF LACK OF PERSONAL JURISDICTION?
Because appellant’s motion to vacate only argued the insufficiency of the substituted service, we have not addressed any other ground which might have been raised. Therefore, our affirmance is without prejudice to appellant to seek, if appropriate, relief under Florida Rule of Civil Procedure 1.540(b).
AFFIRMED.
DOWNEY and STONE, JJ., concur. . "As a legal term, the word ‘merits' is to be regarded as referring to the strict legal rights of the parties, as contradistinguished from those mere questions of practice which every court regulates for itself, and from all matters which depend on the discretion or favor of the court; and it implies a consideration of substance, not of form; of legal rights, not of mere defects of procedure or the technicalities thereof.” 57 C.J.S. Merit (1948).
. Although a suit may be re-filed after a dismissal for lack of prosecution, the motion nevertheless involves substantial legal rights of the parties. For example, even if the original suit was timely filed, a plaintiff will be barred from maintaining the re-filed suit when the appropriate statute of limitations period has expired prior to the re-filing.
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Lennar Homes, Inc. v. Gabb Constr. Servs., Inc., 654 So. 2d 649 (Fla. 3d DCA 1995)…r responsive pleading, has waived this defense once he or she has entered a general appearance. See Fla.R.Civ.P. 1.140(h)(1); Parra v. Raskin, 647 So. 2d 1010, 1011 (Fla. 3d DCA 1994), review denied, 654 So. 2d 919 (Fla.1995); Zimmerman v. Weinberg, 557 So. 2d 193, 194 (Fla. 4th DCA 1990); Metropolitan Dade County v. Coats, 559 So. 2d 71, 73 (Fla. 3d DCA), review denied, 569 So. 2d 1279 (Fla.1990); Consolidated Aluminum Corp. v. Weinroth, 422 So. 2d 330, 331 (Fla. 5th DCA 1982), review denied, 430 So. 2d 450…
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Waterman OY v. Carnival Cruise Lines, Inc., 632 So. 2d 724 (Fla. 3d DCA 1994)…aterman did not waive any objections to jurisdictional defects. Neither the notice of appearance nor the motion for protective order went to the merits of the cause; neither constitutes a waiver of jurisdictional defenses. See Zimmerman v. Weinberg, 557 So. 2d 193, 194 n. 1 (Fla. 4th DCA 1990) (defendant’s motion to dismiss for failure to prosecute acted as waiver of claim of lack of jurisdiction; the term “merits” implies “consideration of substance, not of form; of legal rights, not of mere defects of proce…
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Fiocchi v. Trainello, 566 So. 2d 904 (Fla. 4th DCA 1990)…me the issue of personal jurisdiction and subject matter jurisdiction. We conclude that the trial court properly denied this second motion since appellants waived the issue by not raising it in their initial motion to dismiss. Zimmerman v. Weinberg, 557 So. 2d 193 (Fla. 4th DCA 1990); Joannou v. Corsini, 543 So. 2d 308 (Fla. 4th DCA 1989). Further, an appeal of an order denying subject matter jurisdiction does not come within the purview of rule 9.130(a)(3)(C)(i) and is a non-final nonappealable order. Warren…
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
- McKELVEY v. McKELVEY, 323 So. 2d 651 (Fla. 3d DCA 1976)
- Young v. AIR Canada, 445 So. 2d 1102 (Fla. 4th DCA 1984)
- Joannou v. Corsini, 543 So. 2d 308 (Fla. 4th DCA 1989)
- Eligio Barrios v. Sunshine State Bank, 456 So. 2d 590 (Fla. 3d DCA 1984)
- Banco de Costa Rica v. Norberto Rodriguez, 550 So. 2d 76 (Fla. 3d DCA 1989)