T. C. (TED) WARD, APPELLANT,
v.
CHARLES L. GIBSON, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A Florida appellate court held that a defendant who contests personal jurisdiction through an interlocutory appeal cannot be compelled to appear for deposition until the appeal is decided, even though service was made on his attorney of record. The court reasoned that requiring the defendant's deposition before resolving the jurisdictional appeal would effectively decide the jurisdiction question twice.
The defendant is not required to appear for deposition. The trial court has the right to proceed with the cause but not to destroy the subject matter of the appeal. Requiring the defendant's deposition while the jurisdictional appeal is pending would effectively decide the jurisdiction question a second time adversely to the defendant.
[1] A defendant who appeals an order denying a motion to dismiss for lack of personal jurisdiction does not waive the jurisdictional defense by filing the appeal.
[2] Service of a notice to take a deposition upon an attorney of record is generally valid only if the court has acquired jurisdiction over the defendant.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the defendant is not required to appear for deposition”
Statement of the holding regarding the core issue in the case
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendant's attorney appeared in trial court and filed a motion to dismiss for lack of personal jurisdiction under Florida Rules of Civil Procedure 1.…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Notice Of Deposition cases and more on FLexlaw
PEARSON, Judge.
The question raised on this interlocutory appeal is whether the defendant is bound to appear for deposition when service is made upon an attorney who has previously appeared in the trial court on his behalf for the purpose of testing the court’s jurisdiction over his person and who, thereafter, has appealed an order of that court denying his motion to dismiss. We hold that under such circumstances, the defendant is-not required to appear for deposition!
This appeal is-from an order denying defendant’s motion to quash service of a notice of taking deposition.. The appeal is permitted pursuant to FAR 4.2 as one relating to jurisdiction over the person. The circumstances arose when defendant’s attorney appeared in the cause and filed a motion to dismiss for lack of jurisdiction over the person of the defendant, pursuant to RCP 1.140. Thereafter, the plaintiff served upon this attorney a notice of taking defendant’s deposition.
The trial court denied defendant’s motion to dismiss and the motion to quash service of notice of taking deposition. The defendant has appealed from both orders, with this particular appeal arising from the latter order. The Florida Rules of Civil Procedure eliminate the former distinction between a general and a special appearance by providing that “[n]o defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion.” See RCP 1.140. A defendant who moves to dismiss upon the ground that the court has not acquired jurisdiction over his person may maintain that position and proceed without waiving his defense either by interlocutory appeal or by pursuing the merits of the cause. In the present instance, the defendant chose to proceed by way of interlocutory appeal to test the propriety of the order which found that the trial court had jurisdiction over his person.
We hold that inasmuch as the subject matter of such an interlocutory appeal is the very question of the trial court’s right to proceed with an exercise of jurisdiction over the defendant, the trial court has a right to proceed with the cause but not to destroy the subject matter of the appeal. See the rule in Mandrachia v. Ravenswood Marine, Inc., Fla.App. 1960, 118 So. 2d 817, 821; and Strauser v. Strauser, Fla.App. 1974, 303 So. 2d 663. The service upon the attorney of record of a notice to take the deposition of the defendant presupposes that the court has acquired jurisdiction of the defendant.
We recognize that a person not a party to this cause may be required to attend the taking-of his deposition, -but in such instances a separate service upon the witness is required. 'See -RCP 1.310(a).
If the defendant here is considered a witness, then he cannot be required to attend the taking of a deposition until service of a subpoena requiring his attendance at the deposition is effectuated. If the de fendant is considered a party to the cause for the purpose of taking his deposition, then the question on the appeal testing the jurisdiction over his person is decided a second time adversely to the defendant. Inasmuch as the jurisdiction of the trial court over the defendant is the subject matter of an interlocutory appeal, the trial court may not proceed in the cause as to such subject-matter until the appeal is heard and determined. Thursby v. Stewart, 103 Fla. 990, 138 So. 742, 751 (1931).
We, therefore, hold that the court erred in denying defendant’s motion to quash service upon his attorney of the notice of taking deposition prior to a determination of the interlocutory appeal challenging the jurisdiction of the trial court to proceed against the defendant in the cause.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
First Wis. Nat'l Bank of Milwaukee v. Armand S. Donian and Phyllis Donian, 343 So. 2d 943 (Fla. 2d DCA 1977)…constitute a submission by them to the court’s jurisdiction. Formerly, we would have focused on whether the Donians made a “general appearance” or “special appearance” in the litigation; however, this distinction has been abolished. Ward v. Gibson, 340 So. 2d 481 (Fla.3d DCA 1976). The present method of raising the question of jurisdiction over the parties is by a responsive pleading or motion. Fla.R.Civ.P. 1.140(b); Greenberg v. Greenberg, 101 So. 2d 608 (Fla.3d DCA 1958). Since no responsive pleading or mo…
-
Fibreboard Corp. v. Ward, 455 So. 2d 1151 (Fla. 1st DCA 1984)…llate review of such jurisdictional issue but it does mean that such review must await the normal avenue of appeal after final disposition of the case in the trial court, assuming such defendant is the losing party on the merits. See Ward v. Gibson, 340 So. 2d 481 (Fla. 3rd DCA 1976); State ex rel. Eli Lilly v. Shields, 83 So. 2d 271 (Fla.1955). Accordingly, the appellees’ motion to dismiss is granted and this appeal is Dismissed. WIGGINTON, NIMMONS and BAR-FIELD, JJ., concur.…
-
FAR OUT Music, Inc. v. Jordan, 438 So. 2d 912 (Fla. 3d DCA 1983)…exercise of jurisdiction over them by compelling discovery is a departure from the essential requirements of the law. We agree with this contention and grant the petition for writ of certiorari and quash the trial court’s order. In Ward v. Gibson, 340 So. 2d 481 (Fla. 3d DCA 1976), this court held that a defendant who has appealed an order determining that the trial court has acquired jurisdiction over his person may not be compelled to appear for deposition while that appeal is pending. The rationale of ou…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thursby v. Stewart, 103 Fla. 990 (Fla. 1931)
- Strauser v. Strauser, 303 So. 2d 663 (Fla. 4th DCA 1974)
- Mandrachia v. Ravenswood Marine, Inc., 118 So. 2d 817 (Fla. 2d DCA 1960)