FLORIDA DEPARTMENT OF REVENUE ON BEHALF OF ANA I. GODOY, APPELLANT,
v.
VICTOR E. CASTRO, APPELLEE
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The Florida Department of Revenue appealed the dismissal of a paternity and child support complaint against Victor Castro for lack of jurisdiction due to untimely service. The court reversed, holding that Castro waived his right to challenge service by filing a motion for blood tests, which constituted a request for affirmative relief that submitted him to the court's jurisdiction.
Castro waived his right to challenge service of process and jurisdiction when he filed the motion for blood tests. By requesting affirmative relief from the court and seeking benefits from the court's action, Castro submitted himself to the court's jurisdiction, regardless of whether service was timely or proper.
[1] A defendant waives challenges to service of process or jurisdiction by filing a pleading that relates to the merits of the case.
[2] A defendant who seeks affirmative relief beyond matters of defense waives a previously asserted objection to personal jurisdiction.
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Join FLexlaw to unlock all legal intelligence“The longstanding rule in Florida has been that if a defendant files any pleading [relating] to [the] merits of the case the defendant waives all challenges to service of process or jurisdiction.”
Establishes the fundamental waiver doctrine that governs the case
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Join FLexlaw to unlock all legal intelligenceDOR filed a complaint against Castro on December 6, 1994, to establish paternity and child support. Castro was served by substitute service at his son…
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PER CURIAM.
Florida Department of Revenue (DOR), petitioner below, appeals the dismissal for lack of jurisdiction of its complaint against appellee Victor E. Castro. We reverse because Castro waived his right to challenge the timeliness of service when he filed a motion to compel blood tests.
On December 6, 1994, DOR filed a complaint against Castro in order to establish paternity and an award of child support. He was subsequently served by substitute service, at' the home of his son-in-law, on September 30,1999. Castro filed a motion to extend the time to respond on October 19, 1999, stating, among other things, that he had been “improperly served.” On De cember 13, 1999, he filed a “Motion for Blood Test and to Toll the Time to Respond to Complaint” in which he requested that the court order the parties and the minor child to submit themselves to a blood test to determine paternity, and to order the parties to split the expenses of the blood test. It was not until March 10, 2000, that Castro moved to dismiss the complaint pursuant to rule 1.070(j), Florida Rules of Civil Procedure, for failure to execute service within 120 days of filing the complaint. The court held that the DOR failed to show good cause for violating the 120-day service of process rule and granted Castro’s motion to dismiss.
“The longstanding rule in Florida has been that if a defendant files any pleading [relating] to [the] merits of the case the defendant waives all challenges to service of process or jurisdiction.” Bailey, Hunt, Jones & Busto v. Scutieri, 759 So. 2d 706, 708 (Fla. 3d DCA 2000). A defendant who goes beyond matters of defense and seeks affirmative relief waives a previously asserted objection to personal jurisdiction. See Babcock v. Whatmore, 707 So. 2d 702, 704 (Fla.1998). Although defensive actions by defendants do not constitute affirmative relief, those who participate in litigation by moving the court to grant requests materially beneficial to them submit themselves to the court’s jurisdiction. Id. at 705-06 n. 6 (citations omitted).
Castro argues that his motion for blood tests was a defensive motion, not a request for affirmative relief. We disagree. Castro was not merely denying paternity, he was asking the court to accept jurisdiction in order to take an action which would determine the merits of the case against him, and he was willing to accept the benefits of the court’s action. Thus, Castro did seek affirmative relief, and thereby waived his defense of lack of jurisdiction or improper service of process.
Reversed.
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Mason v. Hunton, 816 So. 2d 234 (Fla. 5th DCA 2002)…2d 194 (Fla. 1st DCA 1996) (request for attorney’s fees incurred while asserting defense of personal jurisdiction does not constitute a request for affirmative relief which would waive the defense); cf. Department of Revenue ex rel. Godoy v. Castro, 786 So. 2d 659 (Fla. 3d DCA 2001) (defendant’s motion for blood test in paternity action was a request for affirmative relief waiving defense of personal jurisdiction because defendant asked court to accept jurisdiction in order to take an action which could deter…
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Authorities Cited
- Babcock v. Whatmore, 707 So. 2d 702 (Fla. 1998)
- Bailey v. Scutieri, 759 So. 2d 706 (Fla. 3d DCA 2000)