MORTON GINSBERG, APPELLANT,
v.
MIRIELLE LAMOUR, INDIVIDUALLY, AND AS NEXT FRIEND AND NATURAL MOTHER OF PAUL MAGLIORE, A MINOR, APPELLEE
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Morton Ginsberg appeals a trial court order finding that his response to a motion for default constituted a general appearance submitting him to the court's jurisdiction. The Fourth District Court of Appeal reversed, holding that a purely defensive response to a motion for default does not constitute a general appearance when the defendant has also filed a motion to quash service of process.
No. The court held that Ginsberg's response to the motion for default was purely defensive and did not constitute a general appearance. A defendant does not waive the defense of lack of personal jurisdiction by joining a motion to quash service of process with a response to a motion for default, as Florida Rule of Civil Procedure 1.140(b) permits defenses and objections to be joined without waiver.
[1] A defendant's filing of a response to a motion for default, which incorporates an affidavit asserting meritorious defenses and references a motion to quash service of pro…
[2] A defendant does not waive an objection to personal jurisdiction by joining it with other defenses or objections in a responsive pleading or motion.
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Join FLexlaw to unlock all legal intelligence“No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion.”
Florida Rule of Civil Procedure 1.140(b), establishing that joining a motion to quash with other responses does not waive the jurisdictional objection
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Join FLexlaw to unlock all legal intelligenceMirielle Lamour sued Ginsberg, the alleged owner of an apartment complex, for personal injuries her son sustained when he fell through a balcony raili…
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GROSS, Judge.
Appellant, Morton Ginsberg, appeals a non-final order ruling that he had entered a general appearance submitting himself to the jurisdiction of the court. We have jurisdiction. Fla.R.App.P. 9.130(a)(3)(C)(I).
This is a personal injury action in which appellee, Mirielle Lamour, seeks damages on behalf of her son resulting from injuries he sustained when he fell through the railing of an apartment balcony. Ginsberg is alleged to be the owner of the apartment complex. By orders dated January 29, and May 13, 1997, the trial court quashed two attempts at service of process on Ginsberg.
On September 9,1997, Lamour moved for the entry of a default against Ginsberg based on his failure to appear after service on his agent pursuant to section 48.071, Florida Statutes (1995).
The motion alleged that two different agents had been served, each at a different time. In response, Ginsberg filed a motion to quash service of process, attacking service on the agents. Also, Ginsberg filed a “response to plaintiffs [sic] motion for entry of default” incorporating his affidavit, which asserted that the persons served were not his agents at the time of service. The response referenced the motion to quash in arguing that default was improper. The last paragraph of the response stated that Ginsberg had “meritorious defenses including but not limited to lack of negligence, comparative negligence, collateral source setoff, negligence of non-parties, nonownership of the property by any named entity and damages defenses.”
The trial court granted the motion to quash, but held that the response to the motion for entry of default was a general appearance submitting Ginsberg to the jurisdiction of the court.
Ginsberg’s filing of a response to the motion for default was a defensive action, not a request for affirmative relief inconsistent with his defense of lack of personal jurisdiction. See, e.g., Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So. 2d 794, 795 (Fla. 4th DCA 1987).
In Montero v. Duval Fed. Sav. & Loan Ass’n, 581 So. 2d 938, 939 (Fla. 4th DCA 1991), we held that a defendant did not submit himself to the jurisdiction of the court where he had filed a motion to quash service of process along with a motion to set aside a default. Montero relied on Florida Rule of Civil Procedure 1.140(b), which states that “[n]o defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion.” Ginsberg’s response to Lamour’s motion for default was purely defensive; it was less susceptible to being characterized as a request for affirmative relief waiving the objection to personal jurisdiction than was the motion to set aside 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, is also a plurality opinion without precedential value. See Santos v. State, 629 So. 2d 838, 840 (Fla.1994); Art. V, § 4(a), Fla. Const. We reverse that portion of the order of September 17,1997 ruling that appellant had entered a general appearance and ordering a responsive pleading to the amended complaint.
REVERSED AND REMANDED.
GUNTHER and POLEN, JJ., concur.
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DiGIOVANNI v. BAC Home Loans Servicing, L.P., 83 So. 3d 934 (Fla. 2d DCA 2012)…alf of Defendant.” However, regardless of how it is titled, in order for a filing to actually constitute a general appearance before the court, it must seek some sort of affirmative relief on the merits of the case. See generally Ginsberg v. Lamour, 711 So. 2d 182, 183 (Fla. 4th DCA 1998) (concluding that response to a motion for default did not constitute general appearance because it did not request affirmative relief); Moo Young v. Air Canada, 445 So. 2d 1102, 1104 (Fla. 4th DCA 1984) (“The motions filed b…
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Nat'l Safety Assocs., Inc. v. Allstate Ins. Co., 799 So. 2d 316 (Fla. 2d DCA 2001)…aising the issue of service of process. Florida courts have repeatedly held that filing a motion to vacate a default does not waive jurisdictional defenses where such defenses are raised simultaneously with the motion. See, e.g., Ginsberg v. Lamour, 711 So. 2d 182 (Fla. 4th DCA 1998); Montero v. Duval Fed. Sav. & Loan Ass’n, 581 So. 2d 938 (Fla. 4th DCA 1991). Accordingly, we reverse the trial court’s order denying NSA’s motion to quash service of process. PARKER, A.C.J., and WHATLEY, J., Concur.…
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Yakov Segalis v. Roof Depot USA, LLC, 178 So. 3d 83 (Fla. 4th DCA 2015)…ever, in order for a filing to constitute a general appearance, “it must seek some sort of affirmative relief on the merits of the case.” DiGiovanni v. BAC Home Loans Servicing, L.P., 83 So. 3d 934, 936 (Fla. 2d DCA 2012) (citing Ginsberg v. Lamour, 711 So. 2d 182, 183 (Fla. 4th DCA 1998); Moo Young v. Air Canada, 445 So. 2d 1102, 1104 (Fla. 4th DCA 1984)). The law is clear and well-established that a simple notice of appearance by counsel does not constitute a general appearance by the client and does not wa…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So. 2d 794 (Fla. 4th DCA 1987)
- Santos v. State, 629 So. 2d 838 (Fla. 1994)
- Young v. AIR Canada, 445 So. 2d 1102 (Fla. 4th DCA 1984)
- Kimbrough v. Rowe, 479 So. 2d 867 (Fla. 5th DCA 1985)
- Zarcone v. Lesser, 190 So. 2d 805 (Fla. 3d DCA 1966)
- M.T.B. Banking Corp. v. da Silva, 592 So. 2d 1215 (Fla. 3d DCA 1992)
- Montero v. DuVAL Fed. Sav. & Loan Ass'n OF Jacksonville, 581 So. 2d 938 (Fla. 4th DCA 1991)
- Solange Buttigieg v. Francine Prunetti, 610 So. 2d 667 (Fla. 4th DCA 1992)