CLIFFORD UMSCHEID, APPELLANT,
v.
CAROLYN M. UMSCHEID, APPELLEE
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The Florida District Court of Appeal reversed an order vacating a final judgment in a marital dissolution case, finding two fatal procedural defects: the appellee waived her lack of personal jurisdiction defense by raising it after making a responsive pleading, and the successor judge lacked authority to sign the order without hearing testimony herself.
The order must be quashed because: (1) the appellee waived her personal jurisdiction defense by raising it after making a responsive pleading, violating Florida Rule of Civil Procedure 1.140(b) & (h), and (2) the successor judge could not validly sign the order without personally hearing testimony to support the allegation of improper service of process.
[1] A motion alleging lack of personal jurisdiction is untimely if not raised before a responsive pleading is filed.
[2] A judge cannot sign an order vacating a judgment based solely on allegations in a motion without hearing testimony to support the claim of lack of proper service of proce…
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Join FLexlaw to unlock all legal intelligence“because appellee did not raise the jurisdictional issue before she made a responsive pleading, her motion was too late”
Establishes the waiver doctrine for jurisdictional defenses under Florida Rules of Civil Procedure
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Join FLexlaw to unlock all legal intelligenceIn a marital dissolution case, the appellee filed a motion alleging lack of personal jurisdiction over her. A judge who had previously considered the …
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[*1268] DAUKSCH, J.
This is an appeal from an order vacating a final judgment in a marital dissolution case. The order was based upon a motion alleging lack of personal jurisdiction over the appellee. While the facts may support such an order, there are two fatal procedural flaws.
First, because appellee did not raise the jurisdictional issue before she made a responsive pleading, her motion was too late. See Fla. R. Civ. P. 1.140(b) & (h); Romellotti v. Hanover Amgro Ins. Co., 652 So. 2d 414 (Fla. 5th DCA 1995); EGF Tampa Associates v. Edgar V. Bohlen, G.F.G.M. A.G., 532 So. 2d 1318 (Fla. 2d DCA 1988); Cumberland Software, Inc. v. Great American Mortg. Corp., 507 So. 2d 794 (Fla. 4th DCA 1987); S.B. Partners v. Holmes, 479 So. 2d 280 (Fla. 2d DCA 1985), rev. den., 488 So. 2d 68 (Fla. 1986); Notarfonzo v. Kline, 464 So. 2d 656 (Fla. 4th DCA), rev. den., 472 So. 2d 1181 (Fla.1985); Williams v. Richardson, 432 So. 2d 58 (Fla. 3d DCA 1983); Consolidated Aluminum Corporation v. Weinroth, 422 So. 2d 330 (Fla. 5th DCA 1982), rev. den., 430 So. 2d 450 (Fla.1983); Miller v. Marriner, 403 So. 2d 472 (Fla. 5th DCA 1981). See also Astra v. Colt Industries Operating Corp., 452 So. 2d 1031 (Fla. 4th DCA 1984).
Second, because the judge who signed the order heard no testimony to support the allegation of lack of proper service of process, he could not sign the order based upon mere allegations in the motion.
Appellee responds by saying that because the previous judge who considered the motion and heard the evidence wrote a letter saying how he would rule, when a proposed order was submitted to him, that makes the successor judge’s action essentially ministerial, effective and unassailable. Not so, unless an order or judgment is entered by the judge who hears the evidence. Any such order or judgment is invalid if based only on a letter from the judge or a pronouncement of how he intends to rule or even a judge-edited proposed, but unsigned, order or judgment. See Hatcher v. St. Joe Paper Co., 603 So. 2d 65 (Fla. 1st DCA 1992); L.S. v. State, 593 So. 2d 296 (Fla. 5th DCA 1992); Carr v. Byers, 578 So. 2d 347 (Fla. 1st DCA 1991); Alvord v. Alvord, 572 So. 2d 925 (Fla. 3d DCA 1990); Beattie v. Beattie, 536 So. 2d 1078 (Fla. 4th DCA 1988); Silvern v. Silvern, 252 So. 2d 865 (Fla. 3d DCA 1971).
See also Anders v. Anders, 376 So. 2d 439 (Fla. 1st DCA 1979); Bradford v. Foundation & Marine Const. Co., Inc., 182 So. 2d 447 (Fla. 2d DCA), cert. den., 188 So. 2d 821 (Fla.1966).
ORDER QUASHED.
GRIFFIN, C.J., and THOMPSON, J., concur.
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E.J. and E.J. v. Dep't of Child. & Families, 795 So. 2d 1131 (Fla. 5th DCA 2001)…le and the transcript of the hearing before his predecessor. Accordingly, the trial court should have granted the appellants’ motion for mistrial or new trial. REVERSE and REMAND. COBB and HARRIS, JJ., concur. . See also Umscheid v. Umscheid, 724 So. 2d 1267, 1268 (Fla. 5th DCA 1999); Hatcher v. St. Joe Paper Co., 603 So. 2d 65 (Fla. 1st DCA 1992); L.S. v. State, 593 So. 2d 296 (Fla. 5th DCA 1992); Carr v. Byers, 578 So. 2d 347 (Fla. 1st DCA 1991); Alvord v. Alvord, 572 So. 2d 925 (Fla. 3d DCA 1990); Be…
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In the Interest of N.C. v. Dep't of Child. & Fam. Servs., 834 So. 2d 189 (Fla. 2d DCA 2002)…position. The Department concedes it was error for the successor judge to sign the order, because he did not hear the testimony and argument presented at the hearings. Under these circumstances, we are compelled to reverse. See Umscheid v. Umscheid, 724 So. 2d 1267 (Fla. 5th DCA 1999); Carr v. Byers, 578 So. 2d 347 (Fla. 1st DCA 1991); Beattie v. Beattie, 586 So. 2d 1078 (Fla. 4th DCA 1988); Broward County v. Mitten, 421 So. 2d 814 (Fla. 4th DCA 1982); Silvern v. Silvern, 252 So. 2d 865 (Fla. 3d DCA 1971). T…
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FRY v. FRY, 887 So. 2d 438 (Fla. 2d DCA 2004)…So. 2d 718 (Fla. 2d DCA 1993); Reaves v. Reaves, 546 So. 2d 744 (Fla. 2d DCA 1989); Paragon Group, Inc. v. Hoeksema, 475 So. 2d 244 (Fla. 2d DCA 1985); Tompkins Land & Housing, Inc. v. White, 431 So. 2d 259 (Fla. 2d DCA 1983); Umscheid v. Umscheid, 724 So. 2d 1267 (Fla. 5th DCA 1999); Alvord v. Alvord, 572 So. 2d 925 (Fla. 3d DCA 1990); Dash v. Dash, 306 So. 2d 543 (Fla. 3d DCA-1974). In Bradford, 182 So. 2d at 449 (citing 48 C.J.S.. Judges § 56a (1947)), we did acknowledge that “[i]t is generally stated tha…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (20 total)
- Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So. 2d 794 (Fla. 4th DCA 1987)
- Kirkland v. Fla. Dep't of Corr., 2006 WL 3755195 (N.D. Fla. 2024)
- Bradford v. Found. & Marine Constr. Co., Inc., 182 So. 2d 447 (Fla. 2d DCA 1966)
- Consol. Aluminum Corp. v. Weinroth, 422 So. 2d 330 (Fla. 5th DCA 1982)
- EGF Tampa Assocs. v. Bohlen, 532 So. 2d 1318 (Fla. 2d DCA 1988)
- Edward v. Dep't of Health & Rehabilitative Servs., 536 So. 2d 1078 (Fla. 4th DCA 1988)
- Miller v. Marriner, 403 So. 2d 472 (Fla. 5th DCA 1981)
- Silvern v. Silvern, 252 So. 2d 865 (Fla. 3d DCA 1971)
- Carr v. Byers, 578 So. 2d 347 (Fla. 1st DCA 1991)
- Anders v. Thaddeus A. Anders, 376 So. 2d 439 (Fla. 1st DCA 1979)