ROBERT L. PAULSON, APPELLANT,
v.
LEONARD FAAS AND HONDA OF KISSEMEE, INC., A FLORIDA CORPORATION, APPELLEES
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The court affirmed the trial court's dismissal of a third-party complaint against Honda of Kissemee, Inc., holding that Florida Rules of Civil Procedure do not provide for third-party practice like Federal Rule 14, and that the third-party defendants were not necessary or proper parties for determining the initial lease dispute.
A stipulation extending time to answer does not waive the defense of insufficient service of process under Florida Rules of Civil Procedure Rule 1.11(b), which abolished the distinction between general and special appearances. Florida Rules of Civil Procedure do not provide for third-party practice comparable to Federal Rule 14, so the court lacked jurisdiction to entertain the third-party proceeding.
“Rule 1.11(b), Fla.Rules of Civil Procedure provides, 30 F.S.A., inter alia, that no defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. The former distinction between general and special appearances has been abolished.”
Establishes that a stipulation to extend time to answer does not constitute a waiver of the insufficiency of service defense.
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Join FLexlaw to unlock all legal intelligencePaulson was sued for allegedly breaching a lease agreement. He moved to add Leonard Faas and Honda of Kissemee as third-party defendants. Service of p…
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A complaint was filed in the circuit court against the appellant-defendant, Robert L. Paulson, in which it was alleged that the defendant breached the terms and conditions of a lease agreement by and between • the plaintiff and defendant. Thereupon Paulson made a motion, supported by an affidavit, to add Leonard Faas and Honda *of Kissemee, a Florida corporation. Upon order of the trial judge the parties were .added as third party defendants.
The sheriff’s return showed that on November 7, service on Faas was attempted by serving one Paul Roger “who accepted service as manager of Honda of Kissemee, Inc.”. Service of Honda of Kissemee, Inc. was attempted by serving “Paul Roger as manager on premises in the absence of the Pres., V. Pres., Cash., Treas., Secy., Gen. Mgr., Dir. and Res. Agent”.
‘ On December 6 a California firm of attorneys representing Faas entered into a. stipulation with Paulson’s attorneys for a thirty day extension within which to file his answer. On January 6 Miami attorneys filed a motion to quash service *10of process and a motion to dismiss on behalf of Faas upon the grounds of insufficiency of service and lack of jurisdiction over the person of said defendant. These attorneys also filed a motion to dismiss on behalf of Honda of Kissemee, Inc., upon the grounds that there is no basis in Florida law for third party proceedings, and that the complaint fails to state a claim upon which relief can be granted as to this defendant All of these motions were granted on grounds set forth therein. It is from these orders that the defendant Paulson has appealed.
The first of the two points presented for our consideration is: Does a stipulation between the parties extending the time within which defendant may serve his answer, preclude the defendant from subsequently raising the defense of insufficiency of service of process and lack of jurisdiction of his person? Y'
Appellant contends that the stipulation extending the time within which Faas could answer appellant’s third party complaint operated as a general appearance on the part of Faas thereby precluding the defense of insufficiency of service of process. We find this contention to be without merit. Rule 1.11(b), Fla.Rules of Civil Procedure provides, 30 F.S.A., inter alia, that no defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. The former distinction between general and special appearances has been abolished.1
The second point presented is whether under Florida Rules of Civil Procedure a defendant may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the defendant for all or part of plaintiff’s claim against him.
Appellant takes the position that ap-pellee, Honda of Kissemee, Inc., was properly made a third party defendant in order that the cause of action might be completely determined. We can not agree. It is apparent from the third party complaint that neither Honda nor Faas were necessary or proper parties for a complete determination of the initial cause of action.
Florida Rules of Civil Procedure do not provide for third party practice as does Federal Rule 14. In Pan American Surety v. Jefferson Construction Co., Fla.App.1958, 99 So.2d 726 this court, speaking through Judge Charles A. Carroll, said:2
“ * * * Federal Rule 14 permits bringing in additional parties without need for a counterclaim or cross-claim against existing parties, which it designates as ‘Third-party Practice.’ That rule would have permitted what was done here. But the Florida Rules of Civil Procedure contain no provision equivalent to Federal Rule 14 for such third-party practice.
“Therefore, the court was without jurisdiction, in the case then pending before it, to entertain the third-party proceeding which resulted in the judgment appealed from. * * * ”
For the reasons stated the orders appealed from are affirmed without prejudice to any rights which appellant might assert in a separate suit.
Affirmed.
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Green v. Roth, 192 So. 2d 537 (Fla. 2d DCA 1966)…o. 2d 142. The “Order on Motions” brought here by interlocutory appeal is hereby affirmed. Affirmed. SHANNON, Acting C. J., and DAY-' TON, ORVIL L., Jr., Associate Judge, concur. . Huffman v. Heagy, 122 So. 2d 335; Fla.App.1960. Paulson v. Faas, 171 So. 2d 9; Fla.App.1965.…
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First Wis. Nat'l Bank of Milwaukee v. Armand S. Donian and Phyllis Donian, 343 So. 2d 943 (Fla. 2d DCA 1977)…actions before the court obtained some relief or material benefit sufficient to constitute a submission by them to the court’s jurisdiction. Green v. Roth, 192 So. 2d 537 (Fla.2d DCA 1966). The Donians contend they did not, and cite Paulson v. Faas, 171 So. 2d 9 (Fla.3d DCA 1965), for the proposition that a stipulation merely extending time for a defendant to answer does not waive jurisdictional defenses. We do not think the Paulson principle is applicable to this case. Here, the Bank and the Donians agreed…
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Weatherhead Co. v. Coletti, 392 So. 2d 1342 (Fla. 3d DCA 1980)…the appearance of the Law Firm of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius as counsel for Weatherhead Company. . Jurisdiction to review the order is conferred by Fla.R.App.P. 9.130(a)(3)(C)(i). .The closest prior case is Paulson v. Faas, 171 So. 2d 9 (Fla. 3d DCA 1965), which held that an extra court stipulation extending the time to answer did not waive a jurisdictional defense. This conclusion is at least not inconsistent with the one reached in this case. . The appellees suggest that the “no…
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
- Greenberg v. Greenberg, 101 So. 2d 608 (Fla. 3d DCA 1958)
- Shotkin v. Deehl, 148 So. 2d 538 (Fla. 3d DCA 1963)
- PAN Am. Sur. Co. v. Jefferson Constr. Co. & Emanuel Elec. Co., Inc., 99 So. 2d 726 (Fla. 3d DCA 1958)
- Chavis v. Citizens Fed. Sav. & Loan Ass'n OF Hialeah, 95 So. 2d 581 (Fla. 1957)
- Fla. Fuel OIL, Inc. v. Springs Villas, Inc., 95 So. 2d 581 (Fla. 1957)
- Huffman v. Heagy, 122 So. 2d 335 (Fla. 3d DCA 1960)