PUNTA GORDA READY MIXED CONCRETE, INC., A FLORIDA CORPORATION, PETITIONER,
v.
GREEN MANOR CONSTRUCTION CO., INC., A CONNECTICUT CORPORATION QUALIFIED TO TRANSACT BUSINESS IN THE STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that a trial court may enter a default judgment despite a pending motion to dismiss when the motion no longer presents a valid issue—here, when jurisdiction was subsequently obtained through proper substituted service, rendering the prior motion to dismiss moot.
A default judgment may be entered despite a pending motion to dismiss when the determination of that motion would not affect the court's jurisdiction or the plaintiff's right to proceed. Once jurisdiction was properly obtained through substituted service, the pending motion to dismiss for lack of jurisdiction presented no valid issue whose determination could affect the plaintiff's ability to proceed.
“The cases relied on by petitioner to establish conflict all hold that where an un-disposed motion is pending in a cause, a default judgment may not be entered, unless the determination of the motion either way would not affect the plaintiff's right to proceed with the action.”
Establishes the foundational rule regarding default judgments and pending motions
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Join FLexlaw to unlock all legal intelligencePunta Gorda Ready Mixed Concrete sued Green Manor Construction for monies owed. Initial service of process on Herbert Greer, allegedly Green Manor's a…
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Petitioner seeks quashal of a portion of that opinion of the District Court of Appeal, Second District, reported at 159 So.2d 255, *890contending that said decision is in direct conflict with the decisions of this Court in Cobb v. Trammell, 1917, 73 Fla. 574, 74 So. 697, and Dudley v. White, 1902, 44 Fla. 264, 31 So. 830.
As set forth in the above cited opinion of the District Court, petitioner, Punta Gorda Ready Mixed Concrete, Inc., as plaintiff, sued Green Manor Construction Co. for monies alleged to be due and payable. Service of process was made on one Herbert Greer, allegedly the agent of the defendant Green Manor. Green Manor appeared specially and moved to dismiss for lack of jurisdiction on the g.ound that Greer was not its agent.
Petitioner apparently then conceding that its service of process on Greer was insufficient, effected service of process on the defendant, Green Manor, by substituted service upon the Secretary of State as authorized by Sections 47.16 and 47.30, F.S.A.
Green Manor took no action in response to this substituted service. Approximately 35 days after substituted service on the Secretary of State and 28 days after actual receipt of the process by Green Manor, the trial judge entered default and final judgment in favor of the plaintiff, the petitioner herein.
Green Manor then filed a motion to vacate the default and final judgment, but prior to hearing thereon took an appeal to the District Court.
In the opinion under attack here, the District Court held that jurisdiction was properly obtained over Green Manor by the service on the Secretary of State. However, it also held that the trial court improperly entered the default and judgment while the motion to dismiss—directed to the sufficiency of the service of process on Greer—was still pending. Petitioner attacks only this last holding.
The cases relied on by petitioner to establish conflict all hold that where an un-disposed motion is pending in a cause, a default judgment may not be entered, unless the determination of the motion either way would not affect the plaintiff's right to proceed with the action. Cobb v. Trammell, supra; Dudley v. White, supra.
At the time the motion to dismiss for lack of jurisdiction was filed in the instant cause, it presented a valid question necessary to be determined before the plaintiff-petitioner could proceed with the case. However, when jurisdiction of the defendant-respondent was obtained by the subsequent substituted service, it is obvious that a determination of the question raised by the motion to dismiss could in no way-affect the court’s jurisdiction or the right, of the plaintiff-petitioner to proceed with* the cause. We emphasize again that the defendant-respondent filed no motion or responsive pleading after the substituted service was effected.
We, therefore, conclude that there is direct conflict between the cited decisions of this Court and the subject decision of the District Court of Appeal.
The respondent, Green Manor, urges that the conflict is not “real, live and vital,” because the rule announced in the cited decisions of this Court was rendered under obsolete common law or chancery pleading and practice, which are now outdated by the Florida Rules of Civil Procedure.
It is true that if the present rules of civil procedure spoke on the point involved they would prevail, and the cited cases would no longer furnish a basis for establishing conflict nor a rule to be followed. But respondent has cited no provision of the rules which governs the situation presented here; and we have found none.
We conclude that the rule announced in the cited cases previously decided by this Court is still binding. We see no valid reason to recede from these decisions or to change the rule announced therein. The *891rule gives everyone his day m court. At the same time it is likely to serve the salutary purposes of conserving the time of trial courts by making it unnecessary for them to rule on motions that present no valid issue, and of preventing delay occasioned by the filing of such motions.
For the reasons above explained, that portion of the opinion of the District Court that held improper the entry of default and final judgment in this cause is quashed and the cause is remanded for further proceedings consistent herewith.
It is so ordered.
DREW, C. J., and THOMAS, ROBERTS and CALDWELL, JJ., concur.
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Zuberbuhler v. Division OF Administration, 344 So. 2d 1304 (Fla. 2d DCA 1977)…ing would be superseded by the Supreme Court’s promulgation of Rule 1.280(b)(3)(A), since an applicable Rule of Civil Procedure supersedes all prior conflicting decisional law. Punta, Gorda Ready Mixed Concrete, Inc. v. Green Manor Construction Co., 166 So. 2d 889 (Fla.1964). Pinellas County v. Carlson, supra, was decided in 1970. Rule 1.280(b)(3)(A) became effective in 1973. Finally, we reject petitioner’s argument that Carlson established a “privilege” within the context of Rule 1.280(b)(1), sufficient to…
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Crews v. The Dania Bank, 352 So. 2d 900 (Fla. 4th DCA 1977)…Judge. Affirmed on authority of The Hotel & Restaurant Employees & Bartenders International Union v. Lake Buena Vista Communities, Inc., 349 So. 2d 1217 (Fla.4th DCA 1977) and Punta Gorda Ready Mixed Concrete, Inc. v. Green Manor Construction Co., 166 So. 2d 889 (Fla.1964). AFFIRMED. GROSS and LETTS, JJ., concur.…
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Sunrise Beach, Inc. v. Phillips, 181 So. 2d 169 (Fla. 2d DCA 1965)…doubt as to the validity of the first service . Moreover, issuance of an “insurance summons” has received tacit approval by our Supreme Court in two 'recent decisions, Punta Gorda Ready Mixed Concrete, Inc. v. Green Manor Const. Co. Inc., Fla.1964, 166 So. 2d 889, and Klosenski v. Flaherty, Fla.1959, 116 So. 2d 767, 82 A.L.R.2d 664. In Klosenski the summons was served and then was lost. The court held that the original writ was sufficient for the court’s acquisition of in personam jurisdiction, but observed…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dudley v. White, 44 Fla. 264 (Fla. 1902)
- Cobb v. Park Trammell, 73 Fla. 574 (Fla. 1917)
- Green Manor Constr. Co., Inc. v. Punta Gorda Ready Mixed Concrete, Inc., 159 So. 2d 255 (Fla. 2d DCA 1963)