KENNETH R. HUNT, APPELLANT,
v.
KENNETH J. GANAWAY, INDIVIDUALLY, KENNETH J. GANAWAY, D/B/A SOUTHERN DAIRY QUEEN CO., APPELLEE
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The court held that the earlier filing of a complaint in a court of competent jurisdiction invokes that court's jurisdiction to the exclusion of another court where a subsequent suit is filed, even if service of process was first effected in the latter.
Plaintiff Hunt filed suit in Leon County Circuit Court for breach of contract. Defendant Ganaway subsequently filed suit in Palm Beach County Small Cl…
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Plaintiff Hunt by this interlocutory appeal questions that part of the circuit court’s order which holds in effect that the Small Claims Court in Palm Beach County has acquired jurisdiction in the subject matter of this litigation to the exclusion of the Circuit Court in Leon County.
Both causes of action arose from the breach of a contract, known as a Store Manager’s Agreement, by which Hunt, as manager, agreed to operate a drive-in restaurant in Leon County for the owner Ganaway. Hunt filed his complaint in the Circuit Court in Leon County before Ganaway filed his cause of action against Hunt in the Small Claims Court in Palm Beach County, but service of process was first effected in the Palm Beach County suit.
The circuit judge ordered the Leon County case held in abeyance pending final disposition of the question of venue in the Small Claims Court. The order further provided that if it is determined that venue is properly laid in the Palm Beach County case, then the Small Claims Court in Palm Beach County has acquired jurisdiction over the subject matter of this cause to the exclusion of the Circuit Court in Leon County. The correctness of this portion of the order is the only question presented on this appeal. The circuit judge found that the question was settled by Martinez v. Martinez,1 which held that in case of conflict between courts of concurrent jurisdiction, the one first exercising jurisdiction acquires control to the exclusion of the other and jurisdiction attaches when summons is served.
The Martinez case was decided prior to the 1956 revision of Article V, Florida Constitution, F.S.A., which vested in the Supreme Court of Florida the exclusive rule making power for practice and procedure in all courts. Pursuant to this constitutional duty the Supreme Court of Florida promulgated Rule 1.2, Florida Rules of Civil Procedure, 30 F.S.A.,2 which provides :
“Every suit of a civil nature shall be deemed as commenced when the complaint is filed * *
This rule was construed by our sister court in the case of Paradis v. Cicero.3 There, as a result of an automobile accident, Para-dis and Hemphill filed suit against Cicero and Mitchell in the Circuit Court of Okeechobee County where the cause of action *497accrued. Personal service of process was obtained against Mitchell and alias process was attempted against the minor defendant, Cicero. This process as to Cicero was later quashed. In the meantime Cicero filed suit against Paradis and Hemphill in Hills-borough County and service of process was accomplished against the defendants. Although the Second District Court of Appeal professed no attempt to resolve any head-on clash of active jurisdiction between the circuit courts of the two counties, it does note that the plaintiffs who filed the first complaint have “regularly invoked jurisdiction of the circuit court for Okeechobee County subject, of course, to activation of jurisdiction over the persons of the defendants” and that court “retains jurisdiction of this entire cause.” Implicit in that holding is the principle that the court whose jurisdiction is first invoked by the filing of a complaint has jurisdiction to the exclusion of the other.
This view of the Cicero case is buttressed by the fact that Rule 1.2, Florida Rules of Civil Procedure, is similar to and based upon Rule 3, Federal Rules of Civil Procedure.4 Though not controlling in Florida, the federal decisions construing the federal rule are strongly persuasive. Typical of these decisions is Barber-Greene Company v. Blaw-Knox Company5 which held that the rule was decisive of the issue, and when two suits filed in courts of concurrent jurisdiction have substantially the same purpose, the one whose jurisdiction is first invoked by the filing of the complaint has authority to proceed to the exclusion of the other.
We hold that the earlier filing of the complaint in the Circuit Court in Leon County invoked the jurisdiction of that court over the subject matter of this litigation and the court erred in its order staying said cause.
The cause is remanded for further proceedings in accordance with this opinion.
STURGIS and JOHNSON, JJ., concur.
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Lefferts L. Mabie, Jr. v. Garden St. Mgmt. Corp., 397 So. 2d 920 (Fla. 1981)…where service of process is first perfected. Martinez v. Martinez, 153 Fla. 753, 15 So. 2d 842 (1943). The First District Court of Appeal, finding that a later rule change overruled Martinez, held that the suit filed first prevails. Hunt v. Ganaway, 180 So. 2d 495 (Fla. 1st DCA 1965), cert. denied, 188 So. 2d 806 (Fla.1966).3 Although there is a rational basis for reaching that conclusion,4 we find that the better policy is to follow Martinez and have the date of service of process govern the jurisdictional c…
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The Bd. OF Trs. OF the Internal Improvement Tr. Fund OF the State of Fla. v. Mobil OIL Corp., 455 So. 2d 412 (Fla. 2d DCA 1984)…1978), Hogan v. Millican, 209 So. 2d 716, 718 (Fla. 1st DCA 1968), and Crosley Corp. v. Hazeltine Corp., 122 F. 2d 925 (3d Cir.1941), the court which first attempted to exercise jurisdiction had subject matter jurisdiction. See also Hunt v. Ganaway, 180 So. 2d 495 (Fla. 1st DCA 1965), disapproved on other grounds, Mabie. More to the point, in cases involving real property where the rule was applied, the court which first tried to exercise jurisdiction had subject matter jurisdiction. See Farmers’ Loan & Trust…
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Hoechst Celanese Corp. v. FRY, 693 So. 2d 1003 (Fla. 3d DCA 1997)…t which first exercised jurisdiction over the matter. Benedict v. Foster, 300 So. 2d 8, 10 (Fla.1974); Royal Globe Ins. Co. v. Gehl, 358 So. 2d 228, 229 (Fla. 3d DCA 1978); Hogan v. Millican, 209 So. 2d 716, 718 (Fla. 1st DCA 1968); Hunt v. Ganaway, 180 So. 2d 495, 496-97 (Fla. 1st DCA 1965), cert. denied, 188 So. 2d 806 (Fla.1966); Blake v. Blake, 172 So. 2d 9, 10 (Fla. 3d DCA), cert. denied, 177 So. 2d 480 (Fla.1965). The supreme court has construed this to mean that jurisdiction lies in that circuit where…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Martinez v. Martinez, 153 Fla. 753 (Fla. 1943)
- Barber-Greene Co. v. Blaw-Knox Co. & All Purpose Spreader Co., 239 F.2d 774 (6th Cir. 1957)
- Morgan v. State, 153 Fla. 753 (Fla. 1943)
- Roy F. Paradis and R. v. Hemphill, 167 So. 2d 248 (Fla. 2d DCA 1964)