MARC ARTHUR HONORAT A/K/A MARC FENELON, APPELLANT,
v.
LOUIS GENOVA, ETC., ET AL., APPELLEES
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The Third District Court of Appeal reversed a trial court's finding of personal jurisdiction over defendant Honorat, holding that filing a Rule 1.070(j) motion to dismiss for failure to serve process within 120 days does not constitute a voluntary submission to jurisdiction even when the statute of limitations has run, as doing so would effectively deny defendants relief under that rule.
Filing a Rule 1.070(j) motion does not subject a defendant to personal jurisdiction. Such a motion addresses only procedural and technical defects in service and does not seek affirmative relief or go to the merits of the case, even when statute of limitations considerations make denial of the motion effectively dispositive.
[1] Filing a motion to dismiss for failure to serve process within the time prescribed by rule does not, in itself, constitute a submission to the personal jurisdiction of th…
[2] A motion to dismiss for insufficient service of process, even when filed after the statute of limitations has run, does not seek affirmative relief so as to waive jurisdi…
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Join FLexlaw to unlock all legal intelligence“the filing of a Rule 1.070(j) motion in such instances seeks affirmative relief or goes to the merits of the case and thus subjects the defendant to the jurisdiction of the court”
The court stated what argument it refused to adopt, establishing the legal principle that procedural motions do not constitute voluntary submission to jurisdiction
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Join FLexlaw to unlock all legal intelligenceAppellee filed a wrongful death suit against Honorat on August 9, 1988. Appellee was unable to locate and serve Honorat, whose whereabouts remained un…
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NESBITT, Judge.
We reverse that part of the non-final order appealed here which held that the appellant, defendant below, had submitted to the personal jurisdiction of the court by filing a motion to dismiss for failure to serve process within 120 days of filing suit pursuant to Florida Rule of Civil Procedure 1.070®.
Appellee filed a wrongful death suit on August 9, 1988, against Honorat and others, including the taxi company for which Honorat worked. Appellee was unsuccessful in locating and serving process on Ho-norat. Honorat’s whereabouts remain unknown.
After various grants of time extensions to perfect service, appellee made substituted service on the Florida secretary of state, relying on those statutory sections permitting such service in the case of an automobile accident. Honorat’s insurer, acting on Honorat’s behalf, responded with a motion to quash for insufficiency of service of process and for lack of personal jurisdiction over Honorat, pursuant to Florida Rule of Civil Procedure 1.140(b). The trial judge ruled that the complaint did not allege a cause of action arising from an automobile accident and thus held the substituted service insufficient.
The defendant’s insurer then moved to dismiss the action on grounds that service of process had not been effected within 120 days after suit was filed as required by Rule 1.070®. Appellee asserted that good cause existed for failure to effect proper service after the last extension had expired because appellee had reasonably relied on the propriety of the substituted service. Appellee further asserted that Honorat had submitted himself to the jurisdiction of the court by filing the Rule 1.070® motion. The trial court agreed on both points, and this appeal ensued.
Cole v. Posada, 555 So. 2d 367 (Fla. 3d DCA 1989), and DCA of Hialeah, Inc. v. Lago Grande One Condominium Ass’n., 559 So. 2d 1178 (Fla. 3d DCA 1990), hold that the denial of a Rule 1.070® motion to dismiss is nonappealable because such a motion does not concern jurisdiction. Consequently, that part of the order here appealed which denied the Rule 1.070® motion is nonreviewable at this time. Nevertheless, appellee asserts that the trial judge correctly held, on the facts of this case, that Honorat subjected himself to the court’s jurisdiction by filing the Rule 1.070® motion. The rationale for this argument is that in this case, the filing of the motion constituted an appearance seeking affirmative relief since a grant of the motion would have amounted to a dismissal on the merits due to the fact that the statute of limitations had run, and the plaintiff could therefore not have refiled suit had the motion been granted.
We refuse to adopt the argument that the filing of a Rule 1.070(j) motion in such instances seeks affirmative relief or goes to the merits of the case and thus subjects the defendant to the jurisdiction of the court. Such a holding would virtually deny a defendant relief under Rule 1.070(j) in a case where the statute of limitations has run since the motion’s denial would nevertheless result in the defendant’s having subjected himself to the court’s jurisdiction even where, as here, the defendant had simply filed a motion addressing procedural and technical defects in the service made by the plaintiff. See Jones v. Denmark, 259 So. 2d 198 (Fla. 3d DCA 1972); Huffman v. Heagy, 122 So. 2d 335 (Fla. 3d DCA 1960).
Accordingly, we reverse the trial court’s finding of personal jurisdiction over appellant Honorat and remand for further proceedings consistent with this opinion.
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Berge O. Khandjian and Tuula Khandjian v. Compagnie Financiere Mediterranee Cofimed, S.A., 619 So. 2d 348 (Fla. 2d DCA 1993)…Prior to the supreme court’s decision in Morales v. Sperry Rand Corp., 601 So. 2d 538 (Fla.1992), it was consistently held that an order denying a motion to dismiss based on rule 1.070(j) is not an appealable nonfi-nal order. See Hondorat v. Genova, 579 So. 2d 286 (Fla. 3d DCA 1991); LeClaire v. Schneider, 579 So. 2d 925 (Fla. 4th DCA 1991); DCA of Hialeah, Inc. v. Lago Grande One Condominium Ass ’n, Inc., 559 So. 2d 1178 (Fla. 3d DCA 1990); Macke Laundry Services, Inc. v. Saintil, 568 So. 2d 541 (Fla. 4th DC…
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Comisky v. Rosen Mgmt. Serv., Inc., 630 So. 2d 628 (Fla. 4th DCA 1994)…nder the facts presented, and Morales, in my opinion, does not provide this appellant by way of non-final appeal, with what it could not ob [*632] tain through a petition for common law cer-tiorari. Accordingly, I dissent. . See Hondorat v. Genova, 579 So. 2d 286 (Fla. 3d DCA 1991); LeClaire v. Schneider, 579 So. 2d 925 (Fla. 4th DCA 1991); DCA of Hialeah, Inc. v. Lago Grande One Condominium Assn, 559 So. 2d 1178 (Fla. 3d DCA 1990); Macke Laundry Services, Inc. v. Saintil, 568 So. 2d 541 (Fla. 4th DCA 1990);…
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Andros Domonic Miller v. State, 785 So. 2d 662 (Fla. 3d DCA 2001)…sion of error); Pineda v. State, 571 So. 2d 105, 106 (Fla. 3d DCA 1990); Gosha v. State, 534 So. 2d 912 (Fla. 3d DCA 1988). Similarly, the trial court may not deny defense counsel an opportunity to question jurors individually. See Francis v. State, 579 So. 2d 286 (Fla. 3d DCA 1991). The trial court in this case effectively denied individual questioning of the prospective jurors by covering the most important areas of inquiry and then forbidding defense counsel from further exploration.3 In Miller v. State,…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. Nan Gay Denmark and John A. Denmark, 259 So. 2d 198 (Fla. 3d DCA 1972)
- Sanford H. Cole, M.D. v. Posada, 555 So. 2d 367 (Fla. 3d DCA 1989)
- Diaz v. State, 559 So. 2d 1178 (Fla. 3d DCA 1990)
- Huffman v. Heagy, 122 So. 2d 335 (Fla. 3d DCA 1960)