CONNIE A. TREVINO, APPELLANT,
v.
HARRY J. CHADDERTON, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that service of a cross-claim by mail, without a summons, was invalid under the rule in effect at the time of service.
Connie A. Trevino (cross-plaintiff) appeals an order setting aside her cross-claim judgment against Harry Chadderton (cross-defendant). The cross-clai…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Florida Rule Of Civil Procedure 1.540(B)(4) cases and more on FLexlaw
PER CURIAM.
Connie A. Trevino, cross-plaintiff below, appeals an order setting aside her cross-claim judgment against Harry Chadderton, cross-claim defendant below. We affirm.
The cross-claim at issue here was served on Chadderton by mail, not by summons. Since service was effected prior to January 1, 1989, it was controlled by the 1988 version of Rule 1.170(g), Florida Rules of Civil Procedure. This court had construed the former rule to hold “that cross-claims against co-defendants require service by summons unless, which is not the case here, that requirement is waived.” Elliott Enterprises, Inc. v. Serota, 436 So. 2d 415, 416 (Fla. 3d DCA 1983) (citing Fundaro v. Canadiana Corp., 409 So. 2d 1099, 1100 (Fla. 4th DCA 1982)); see also Keithie’s Roofing Co. v. Lee Parks Apartments, Inc., 461 So. 2d 965 (Fla. 3d DCA 1984) (default judgment invalid for lack of jurisdiction where defendant “was not served with process on the cross-claim as required.”). Fundaro, Elliott, and Keithie’s were overruled by the 1988 amendment to Rule 1.170, which took effect on January 1, 1989. In re Amendments to Rules of Civil Procedure, 536 So. 2d 974, 975, 976 (Fla. 1988); Fla.R.Civ.P. 1.170 (1989) (Committee Note).
Under the 1988 version of the Rule, which was in effect at the time of the service of the cross-claim, service. should have been made by summons. Acquisition Corp. of America v. American Cast Iron Pipe Co., 543 So. 2d 878, 881 (Fla. 4th DCA 1989) (amendment to Florida Rule of Civil Procedure 1.170(g), effective Jan. 1, 1989, does not apply where “amendment was not in effect at the time this action was heard in the trial court.”). Since that was not done, and since defendant did not otherwise make an appearance which would waive the objection, the trial court was entirely correct in granting relief from judgment under Rule 1.540(b)(4), Florida Rules of Civil Procedure. See Falkner v. AmeriFirst Fed. Sav. & Loan Ass’n, 489 So. 2d 758, 759 (Fla. 3d DCA 1986).
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Falkner v. Amerifirst Fed. Sav. & Loan Ass'n, 489 So. 2d 758 (Fla. 3d DCA 1986)
- THE Florida BAR v. Bell, 536 So. 2d 974 (Fla. 1988)
- Acquisition Corp. OF Am. & Kenneth v. Hemmerle, Sr., 543 So. 2d 878 (Fla. 4th DCA 1989)
- Keithie's Roofing Co. Inc. v. LEE Parks Apts., Inc., 461 So. 2d 965 (Fla. 3d DCA 1984)
- Benny Lee Webster v. State, 461 So. 2d 965 (Fla. 2d DCA 1984)
- Cirigliano v. Singer, 409 So. 2d 1099 (Fla. 3d DCA 1982)
- Fundaro v. Canadiana Corp., 409 So. 2d 1099 (Fla. 4th DCA 1982)
- Elliott Enters., Inc. v. Serota, 436 So. 2d 415 (Fla. 3d DCA 1983)