MANUEL RISKIN, ET AL., APPELLANTS,
v.
LAURA MAZZONE MIKLOS, APPELLEE
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Florida appellate court reversed enforcement of an Ohio default judgment against Riskin, holding that defendants may challenge personal jurisdiction de novo in the enforcement forum when the jurisdictional issue was not fairly litigated in the original court.
The court held that when a jurisdictional issue is not fairly litigated in the initial court—such as when a defendant's only appearance is struck—defendants are free to raise the jurisdictional question de novo in the jurisdiction where enforcement of the judgment is attempted.
[1] A defendant may raise the issue of lack of personal jurisdiction to support a foreign judgment either in the original action or, as an original matter, in the state where…
[2] An appearance made by an attorney not admitted to practice in the foreign jurisdiction is a nullity and does not constitute a submission to the court's jurisdiction.
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“the rule that lack of personal jurisdiction to support a foreign judgment may be raised, at the choice of the defendant, either where the action is first filed — in which event he is bound by an adverse jurisdictional conclusion — or, as an original matter, in the subsequent state”
Establishes the foundational jurisdictional rule governing challenges to foreign judgments
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Join FLexlaw to unlock all legal intelligenceAppellants received a default judgment in Ohio based on substituted service. The only appearance in Ohio was a defensive jurisdictional motion filed b…
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SCHWARTZ, Chief Judge.
The issue in this appeal involves the rule that lack of personal jurisdiction to support a foreign judgment may be raised, at the choice of the defendant, either where the action is first filed — in which event he is bound by an adverse jurisdictional conclusion — or, as an original matter, in the subsequent state. In this case, the trial court enforced an Ohio default judgment secured against the appellants on the basis of substituted service effected in that state. In so doing, it rejected as a matter of law the claim that Ohio lacked personal jurisdiction over them. The ruling was based upon the conclusion that the defendants had appeared and litigated the issue in Ohio so that the Ohio judgment was entitled to res judicata effect in Florida. See Haas v. Haas, 59 So. 2d 640 (Fla.1952); Heritage Corp. v. Rivas, 289 So. 2d 432 (Fla. 3d DCA 1974), cert. denied, 300 So. 2d 901 (Fla. 1974); see also Tipton v. Van Schouwen, 526 So. 2d 138 (Fla. 2d DCA 1988); Dusesoi v. Dusesoi, 498 So. 2d 1348 (Fla. 2d DCA 1986); Baron v. Baron, 454 So. 2d 86 (Fla. 4th DCA 1984). The record shows, however, that the only appearance in Ohio was in the form of a defensive jurisdictional motion filed by an attorney who was not admitted to the Ohio bar and which, for that reason, was — quite correctly — stricken by the Ohio court. Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980); Herndon v. Lee, 199 So. 2d 74 (Ala.1967); Fruin v. Northwestern Medical Faculty Foundation, Inc., 194 Ill.App.3d 1061, 141 Ill.Dec. 667, 551 N.E. 2d 1010 (1990), appeal denied, 133 Ill.2d 555, 149 Ill.Dec. 320, 561 N.E. 2d 690 (1990). It is clear, however, that such an appearance is, in effect, a nullity, which does not serve, as it did not in the Ohio case itself, to permit the jurisdictional issue to be decided on its merits. Squarely on point in this regard is Collins v. Peacock, 147 Ga.App. 424, 249 S.E. 2d 142 (1978) where the court said:
The failure to file and appear was the basis for the default judgment. Counsel will not now be permitted to enforce a foreign default judgment predicated on defendant’s failure to file an answer, and now argue that “defendant filed an answer ... [which] constituted a general appearance.” It would indeed be a paradoxical procedure where a defendant attempted to submit himself to the jurisdiction of a foreign court, but the court refused him the right to answer or defend, then ruled that his attempt to submit himself to the jurisdiction of the court was successful, and awarded judgment by default for his failure to answer or appear. We find no submission to the jurisdiction of the Tennessee court and a failure of personal service.
Collins, 147 Ga.App. at 428, 249 S.E. 2d at 144-45; see also Gelkop, 384 So. 2d at 195. The situation therefore falls clearly within the doctrine that where the jurisdictional issue is not fairly litigated in the initial court, the defendants are free to raise the question de novo in the jurisdiction in which enforcement of the judgment is attempted. Ratner v. Hensley, 303 So. 2d 41 (Fla. 3d DCA 1974), and cases cited. The judgment below is therefore reversed for determination of that issue vel non after remand.
Reversed.
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Archbold Health Servs., Inc. v. Future Tech Bus. Sys., Inc., 659 So. 2d 1204 (Fla. 3d DCA 1995)…pshire divorce decree which was entered prior to the final judgment in the Florida proceeding where the husband did not attempt to appeal the New Hampshire court’s determination of jurisdiction). Instructive to the instant case is Riskin v. Miklos, 569 So. 2d 940 (Fla. 3d DCA 1990). In that case, appearance in Ohio in the form of a defensive jurisdictional motion was filed by an attorney who was not admitted to the bar. Counsel’s argument was properly stricken as a nullity, thus not permitting the jurisdicti…
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Best Form, Inc. v. Richards Prods., Inc., 631 So. 2d 1123 (Fla. 4th DCA 1994)…ue is whether the issue of personal jurisdiction in Minnesota can now be litigated in Florida. Since the defendants did not appear in Minnesota and thus did not litigate that issue, they are entitled to raise that issue in Florida. Riskin v. Miklos, 569 So. 2d 940 (Fla. 3d DCA 1990), Ratner v. Hensley, 303 So. 2d 41 (Fla. 3d DCA 1974), and § 81, Restatement (Second) of Judgments, illustration 1. See also, Haas v. Haas, 59 So. 2d 640 (Fla.1952) (if the court of the foreign state rendering the judgment has expr…
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Wellington v. Dep't OF Revenue, 708 So. 2d 1040 (Fla. 4th DCA 1998)…ppear, answer or contest jurisdiction. He is, therefore, entitled to now raise the issue of whether the Iowa court had personal jurisdiction over him. Best Form, Inc. v. Richards Products, Inc., 631 So. 2d 1123 (Fla. 4th DCA 1994); Riskin v. Miklos, 569 So. 2d 940 (Fla. 3d DCA 1990); Ratner v. Hensley, 303 So. 2d 41 (Fla. 3d DCA 1974), and Restatement (Second) of Judgments, § 81, illus. 1. See also, Haas v. Haas, 59 So. 2d 640 (Fla.1952) (if the court of the foreign state rendering the judgment has expressly…
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
- Dov Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980)
- Edmond Jordan Dusesoi v. Dusesoi, 498 So. 2d 1348 (Fla. 2d DCA 1986)
- Sanford Ratner v. Willa Mae Hensley, 303 So. 2d 41 (Fla. 3d DCA 1974)
- Baron v. Baron, 454 So. 2d 86 (Fla. 4th DCA 1984)
- The Heritage Corp. OF S. Fla. v. Rivas, 300 So. 2d 901 (Fla. 1974)
- Kelley v. State, 300 So. 2d 901 (Fla. 1974)
- The Heritage Corp. OF S. Fla. v. Wm. A. Rivas, 289 So. 2d 432 (Fla. 3d DCA 1974)
- Tipton v. Jackques Andrianus Adolph van Schouwen, 526 So. 2d 138 (Fla. 2d DCA 1988)