AFP 103 CORP.
v.
COMMON WEALTH TRUST SERVICES, LLC, ETC., ET AL.
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The defense of failure to join an indispensable party is waived if not timely raised in a responsive pleading, motion to dismiss, or motion for judgment on the pleadings, and cannot be raised for the first time on appeal.
[1] The defense of failure to join an indispensable party is not a jurisdictional defect and must be raised timely in a responsive pleading, motion to dismiss, or motion for…
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Join FLexlaw to unlock all legal intelligence“Rule [1.140(h)] clearly contemplates four instances in which a party may raise the failure to join an indispensable party: first, in the responsive pleading, either the answer or reply; second, by a motion to dismiss under Rule 1.140(b); third, by motion for judgment on the pleadings; and fourth, at the trial on the merits. . . . Moreover it is obvious that Rule 1.140(h), as amended, does not contemplate the failure to join indispensable parties as a jurisdictional matter which may be raised at any time.”
Engel Mort. Co., Inc. v. Dowd, 355 So. 2d 1210, 1212-13 (Fla. 1st DCA 1977)
AFP 103 Corp. appealed a non-final order from the Circuit Court for Miami-Dade County. The case involved a dispute with Common Wealth Trust Services, …
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Third District Court of Appeal State of Florida
Opinion filed January 14, 2026. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D25-0419 Lower Tribunal No. 20-8291-CA-01 ________________
AFP 103 Corp., Appellant,
vs.
Common Wealth Trust Services, LLC, etc., et al., Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Valerie R. Manno Schurr, Judge.
Carlton Fields, P.A., and Christopher W. Smart (Tampa) and Dean A. Morande (West Palm Beach), for appellant.
Silver Law, P.A., and Scott A. Silver; Russo Lima Appellate Firm, P.A., and Paulo R. Lima and Elizabeth K. Russo, for appellee Common Wealth Trust Services, LLC.
Before EMAS, GORDO and LOBREE, JJ.
PER CURIAM.
2
Affirmed. See Engel Mort. Co., Inc. v. Dowd, 355 So. 2d 1210, 1212- 13 (Fla. 1st DCA 1977)(“Rule [1.140(h)] clearly contemplates four instances in which a party may raise the failure to join an indispensable party: first, in the responsive pleading, either the answer or reply; second, by a motion to dismiss under Rule 1.140(b); third, by motion for judgment on the pleadings; and fourth, at the trial on the merits. . . . Moreover it is obvious that Rule 1.140(h), as amended, does not contemplate the failure to join indispensable parties as a jurisdictional matter which may be raised at any time.”); see also Ivens Corp. v. Hobe Cie Ltd., 555 So. 2d 425, 426 (Fla. 3d DCA 1989) (“[T]he defendant did not properly plead the failure to join an indispensable party in either its motion to dismiss the plaintiff's complaint or as an affirmative defense in its answer, and consequently has waived the point for appellate review.”); Haire v. Overseas Holdings Ltd. P’ship, 908 So. 2d 580 (Fla. 2d DCA 2005) (holding that defense of failure to join an indispensable party was waived because not timely raised); Gold, Vann & White, P.A. v. Friedenstab, 831 So. 2d 692, 697 (Fla. 4th DCA 2002) (“The defense of failure to join an indispensable party may not be raised after an adjudication on the merits and, thus, could not be raised for the first time on appeal.”); Valparaiso Realty Co. v. City of Valparaiso, 473 So. 2d 1, 2 (Fla. 1st DCA 1985) (“We hold that this defense [failure to raise an indispensable party], even if viable (which we
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Gold, Vann & White, P.A. v. Allen P. Friedenstab, M.D., 831 So. 2d 692 (Fla. 4th DCA 2002)
- Engel Mortg. Co., Inc. v. Dowd, 355 So. 2d 1210 (Fla. 1st DCA 1977)
- The Ivens Corp. v. HOBÉ CIE Ltd., 555 So. 2d 425 (Fla. 3d DCA 1989)
- Campbell v. State, 9 So. 3d 59 (Fla. 1st DCA 2009)
- Haire v. Overseas Holdings Ltd. P'ship, 908 So. 2d 580 (Fla. 2d DCA 2005)
- Orange Cnty. v. Hewlings, 152 So. 3d 812 (Fla. 5th DCA 2014)
- Sims v. The Bd. OF Trs. OF the N. Fla. Junior Coll., 473 So. 2d 1 (Fla. 1st DCA 1985)