RAMON COTO-OJEDA, APPELLANT,
v.
ANNE S. SAMUEL, APPELLEE

Fla. 3d DCA | 1994-08-24
No. 93-1968
Before NESBITT, COPE and GERSTEN, JJ.
642 So. 2d 587 Florida District Court of Appeal, Third District (1994) Positive Treatment
Cited by 4 cases

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Synopsis

A husband appealed the denial of his motion to dismiss a dissolution of marriage petition for lack of personal jurisdiction. The court affirmed, holding that the husband waived the personal jurisdiction defense by making a general appearance and by failing to include the jurisdictional challenge in his initial motion to dismiss.


Holding

The husband waived the defense of lack of personal jurisdiction on two independent grounds: (1) by entering a general appearance when he appeared in court to contest subject matter jurisdiction, and (2) by failing to include the personal jurisdiction attack in his initial motion to dismiss, as required by Florida Rule of Civil Procedure 1.140(b).


Headnotes

[1] A party who appears in court to contest subject matter jurisdiction thereby enters a general appearance.

[2] A general appearance waives the defense of lack of personal jurisdiction.

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Key Quotes

“When a party appears in court to contest subject matter jurisdiction, that party has entered a general appearance [...] A general appearance results in a waiver of the defense of lack of personal jurisdiction.”

Establishes the primary basis for waiver—that a general appearance automatically waives personal jurisdiction defenses.

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Facts & Procedural History

The wife filed a petition for dissolution of marriage. The husband first moved to dismiss for lack of subject matter jurisdiction and appeared in cour…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, Ramon Coto-Ojeda (husband), appeals the denial of his motion to dismiss a dissolution petition for lack of personal jurisdiction. We affirm.

Appellee, Anne S. Samuel (wife), filed the petition for dissolution of marriage. The husband first moved to dismiss the petition for lack of subject matter jurisdiction. He subsequently appeared in court to testify at the hearing on the motion. The court denied the motion. The husband did not appeal this denial. Instead, he filed a motion to dismiss for lack of personal jurisdiction. The court then denied the second motion to dismiss and the husband now appeals.

When a party appears in court to contest subject matter jurisdiction, that party has entered a general appearance. Coyne v. Coyne, 325 So. 2d 407 (Fla. 3d DCA), cert. denied, 339 So. 2d 1168 (Fla.1976). A general appearance results in a waiver of the defense of lack of personal jurisdiction. See Hubbard v. Cazares, 413 So. 2d 1192, 1193 (Fla. 2d DCA 1981), review denied, 417 So. 2d 329 (Fla.1982); Royal Indus., Inc. v. Birdsong, 340 So. 2d 526, 528 (Fla. 1st DCA 1976), cert. denied, 351 So. 2d 408 (Fla.1977), overruled on other grounds, Public Gas Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla.1982).

In addition, Florida Rule of Civil Procedure 1.140(b) enumerates seven defenses which can be raised by motion, including jurisdiction over the subject matter and jurisdiction of the person. Under the rule, “[a]ny ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time.” Id. Since the attack on personal jurisdiction was not included in the initial motion, the issue was waived. In the present circumstances, a successive motion was impermissible. Id. See generally Public Gas. Co. v. Weatherhead Co., 409 So. 2d 1026, 1027 (Fla.1982), aff'g Weatherhead Co. v. Coletti, 392 So. 2d 1342 (Fla. 3d DCA 1980); Henry P. Trawick, Jr., Trawick’s Florida Practice & Procedure § 10-8 (1993 ed.); 1 Fla Jur.2d Actions § 100 (1977).

Therefore, the husband waived the defense of lack of personal jurisdiction when he entered a general appearance prior to challenging the court’s personal jurisdiction, and when he failed to include the attack on personal jurisdiction in his initial motion for dismissal. Upon both of these grounds, we affirm the trial court’s order denying the husband’s motion to dismiss for lack of personal jurisdiction.

Affirmed.

NESBITT, J., concurs.

Concurrence
COPE, Judge

COPE, Judge

(specially concurring).

I completely agree that under Florida Rule of Civil Procedure 1.140 the issue was waived. See Valjean Corp. v. Heininger, 559 So .2d 677, 678 (Fla. 3d DCA 1990).

In my view we should avoid use of the terms “general appearance” and “special appearance.” Concededly there are post-1948 cases like Coyne v. Coyne, 325 So. 2d 407 (Fla. 3d DCA), cert. denied, 339 So. 2d 1168 (Fla.1976), which explicitly analyze the issue in terms of “general appearance” versus “special appearance,” but the analysis is obsolete because the adoption of the Florida Rules of Civil Procedure in 1948 “had the effect of abolishing the necessity of a special appearance....” Kennedy v. Vandine, 185 So. 2d 693, 695 (Fla.1966); accord Public Gas Co. v. Weatherhead Co., 409 So. 2d 1026, 1027 (Fla.1982); see also Henry P. Trawick, Jr., Trawick’s Florida Practice & Procedure § 10-8, at 181 (1993 ed.); 1 Fla.Jur.2d Actions §§ 89-90 (1977). The term “general appearance” is now used colloquially to announce the legal conclusion that a party has waived a challenge to personal jurisdiction, either by not timely asserting it, or by making a claim for affirmative relief in the case. The use of the term “general appearance” is confusing to practitioners, however, because it continues to suggest that practitioners should intone some “magic words” of special appearance lest they be deemed to have waived the jurisdictional point. It would be preferable to rest analysis exclusively on Rule 1.140.


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Citator

Cited By

  • Thompson v. State, 867 So. 2d 603 (Fla. 1st DCA 2004)
    …e trial court and that Thompson’s argument that the trial court lacked personal jurisdiction was not waived because Thompson neither took affirmative action nor sought affirmative relief prior to raising the alleged defect. See Coto-Ojeda v. Samuel, 642 So. 2d 587, 588 (Fla. 3d DCA 1994)(Cope, J., specially concurring). Turning to the merits, “[sjection 48.031 expressly requires that substituted service be at the person’s usual place of abode.” Shurman v. Atlantic Mortgage & Investment Corp., 795 So. 2d 952…
  • Marlen Cantero Mesa v. The Bank OF NEW York, 180 So. 3d 222 (Fla. 3d DCA 2015)
    …nal jurisdiction, insufficient process, and insufficient service of process. However, if a party does not raise these defenses in its initial motion or responsive pleading, such defenses are waived. Fla. R. Civ. P. 1.140(h)(1); Coto-Ojeda v. Samuel, 642 So. 2d 587 (Fla. 3d DCA 1994). In the instant case, the Mesas raised these defenses in their initial motion, and before any responsive pleading. The only document that had been filed prior to the motion was the notice of appearance filed by the Mesas’ attorne…

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