M.T.B. BANKING CORPORATION, APPELLANT,
v.
ANA MARIA BERGAMO DA SILVA, A/K/A ANA MARIA DO REGO, APPELLEE
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M.T.B. Banking Corporation did not waive its affirmative defense of lack of personal jurisdiction by raising it in its answer and motion for judgment on the pleadings, as the defense was properly raised at the first opportunity and asserting other defenses does not waive a jurisdictional defense.
A defendant does not waive the affirmative defense of lack of personal jurisdiction by raising it in its answer and motion for judgment on the pleadings at the first opportunity, nor by asserting other defenses in the same pleading.
[1] A defendant does not waive the affirmative defense of lack of personal jurisdiction under Florida Rule of Civil Procedure 1.140(b) by raising it in an answer or motion fo…
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Join FLexlaw to unlock all legal intelligenceM.T.B. Banking Corporation raised the defense of lack of personal jurisdiction in its answer and motion for judgment on the pleadings, along with othe…
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PER CURIAM.
M.T.B. Banking Corporation appeals an order determining that M.T.B. waived the affirmative defense of lack of personal jurisdiction.1 M.T.B. raised that defense as well as other defenses in its answer and in its motion for judgment on the pleadings. However, the court concluded that by filing those pleadings M.T.B. waived the jurisdictional defense. The ruling is erroneous. M.T.B. properly raised the defense of lack of personal jurisdiction at the “first opportunity” 2 as required by Florida Rule of Civil Procedure 1.140(b). Cumberland Software, Inc. v. Great Am. Mortgage Corp., 507 So. 2d 794 (Fla. 4th DCA 1987); Kimbrough v. Rowe, 479 So. 2d 867 (Fla. 5th DCA 1987); see Logan v. Mora, 555 So. 2d 1267 (Fla. 3d DCA 1989). Furthermore, M.T.B.’s assertion of other defenses or objections in its answer 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 by being joined with other defenses or objections in a responsive pleading or motion.”)- The order is therefore reversed and the cause is remanded for further proceedings.
. We have jurisdiction. Fla.R.App.P. 9.130(a)(3)(C)(i).
. Tampa Assoc., Ltd. v. Miami Elevator Co., 545 So. 2d 458, 459 (Fla. 3d DCA 1989).
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Re-Employment Servs., Ltd. v. Nat'l Loan Acquisitions Co., 969 So. 2d 467 (Fla. 5th DCA 2007)…4 So. 2d 649, 651 (Fla. 3d DCA 1995). The defense will be waived if it is not raised at the “ ‘first opportunity.’ ” See Romellotti v. Hanover Amgro Ins. Co., 652 So. 2d 414, 414 (Fla. 5th DCA 1995) (quoting M.T.B. Banking Corp. v. Bergamo Da Silva, 592 So. 2d 1215, 1215 (Fla. 3d DCA 1992)). However, no waiver occurs if the initial motion to dismiss is amended to include the defense before the motion is heard. See Waxoyl, A.G. v. Taylor, Brion, Buker & Greene, G.P., 711 So. 2d 1251, 1254 (Fla. 3d DCA 1998); As…
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Romellotti v. Hanover Amgro Ins. Co., 652 So. 2d 414 (Fla. 5th DCA 1995)…jurisdiction by a responsive pleading or by appropriate motion results in a waiver of that defense. See Fla.R.Civ.P. 1.140(b) & (h). This means that the defense must be raised at the “first opportunity.” See M.T.B. Banking Corp. v. Bergamo Da Silva, 592 So. 2d 1215 (Fla. 3d DCA 1992). See also Cumberland Software, Inc. v. Great American Mortg. Corp., 507 So. 2d 794, 795 (Fla. 4th DCA 1987) (the “first step” which a party takes, whether it be the filing of a preliminary motion or a responsive pleading, must ass…
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Morton Ginsberg v. Mirielle Lamour, 711 So. 2d 182 (Fla. 4th DCA 1998)…the default in Monte-ro. For this reason, the trial court erred in its determination that Ginsberg’s response was a general appearance. See also Moo Young v. Air Canada, 445 So. 2d 1102 (Fla. 4th DCA 1984); M.T.B. Banking Corp. v. Bergamo Da Silva, 592 So. 2d 1215 (Fla. 3d DCA 1992); Kimbrough v. Rowe, 479 So. 2d 867 (Fla. 5th DCA 1985); Zarcone v. Lesser, 190 So. 2d 805, 807-08 (Fla. 3d DCA 1966). Distinguishable on its facts, Buttigieg v. Prunetti, 610 So. 2d 667 (Fla. 4th DCA 1992), relied on by appellee,…
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
- Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So. 2d 794 (Fla. 4th DCA 1987)
- Kimbrough v. Rowe, 479 So. 2d 867 (Fla. 5th DCA 1985)
- Barr v. State, 572 So. 2d 552 (Fla. 4th DCA 1990)
- Zarcone v. Lesser, 190 So. 2d 805 (Fla. 3d DCA 1966)
- Logan v. Vita Mora, 555 So. 2d 1267 (Fla. 3d DCA 1989)
- Montero v. DuVAL Fed. Sav. & Loan Ass'n OF Jacksonville, 581 So. 2d 938 (Fla. 4th DCA 1991)
- Tampa Assocs., Ltd. v. Miami Elevator Co., 545 So. 2d 458 (Fla. 3d DCA 1989)