First DCA
Retherford v. Kirkland
1st DCA
6/14/23, Judge Roberts
Topics: Motion to Quash Service; Personal Jurisdiction; Service of Process
After the personal and business relationship of two individuals soured, Ms. Retherford sued Mr. Kirkland to attempt to walk away with their shared business. Mr. Kirkland was sued in Bay County, Florida, and service of process was given to his adult daughter at a friend’s home in Santa Rosa Beach, Florida.
Mr. Kirkland moved to dismiss or change the venue to Alabama, where he lived. The motion did not take issue with the manner of service of process.
Four months later, Mr. Kirkland filed a motion to dismiss for improper service and motion for abatement of action for dismissal of lack of personal jurisdiction. The motion argued that substituted service on his daughter because he was a resident of Alabama, the address was not his usual place of abode, and his daughter was not a resident of that address, either. Ms. Retherford argued that service was proper but also that Mr. Kirkland waived the defense by failing to raise it in his first motion to dismiss.
The trial court granted the motion to dismiss for improper service and quashed service. Ms. Retherford appealed.
The DCA found that Mr. Kirkland waived his defense of improper service by failing to raise it in his first motion to dismiss. It did not matter that he amended the motion prior to the hearing. He waited 15 months to raise it. The DCA held that the “plain language of rule 1.140(g) provides for no” exception for curing waiver by amending the motion prior to the hearing. Under rules 1.140(g) and (h), when a party “makes a motion” under rule 1.140(b) and fails to join all rule 1.140(b) defenses then available to it, it cannot “thereafter make a motion” asserting the omitted defense and is deemed to have waived that defense. When a party fails to challenge personal jurisdiction or service in the first pleading, he cannot “thereafter make” another motion advancing it. The fact that [defendant] labeled its second motion an “amended motion” and filed it prior to hearing on the original motion does not matter insofar as the rule as worded is concerned.
THERE IS A HUGE CAVEAT TO THIS. THE FIRST AND SECOND DISTRICTS FOLLOW THIS RULE, BUT BOTH THE SECOND DCA OPINION FOLLOWED BY THE FIRST DCA IN THIS CASE AND THE FIRST DCA OPINION
acknowledged that the Third, Fourth, and Fifth Districts “have held that when a party files an amended motion under rule 1.140(b) before a hearing on an original motion under the rule, it may assert a previously omitted rule 1.140(b) defense in the amended motion and have it treated as timely.” See Cepero v. Bank of N.Y. Mellon Tr. Co., N.A., 189 So. 3d 204, 206 (Fla. 4th DCA 2016); Snider v. Metcalfe, 157 So. 3d 422, 424–25 (Fla. 4th DCA 2015); Re-Emp. Servs, Ltd. v. Nat'l Loan Acquisitions Co., 969 So. 2d 467, 470 (Fla. 5th DCA 2007); Waxoyl, A.G. v. Taylor, Brion, Buker & Greene, 711 So. 2d 1251, 1254 (Fla. 3d DCA 1998).
Bizarrely, the DCA just states that the Third, Fourth, and Fifth Districts are wrong, but then the DCA did not go on to certify conflict. And amazingly, there was no motion for rehearing to seek certification of conflict and no attempt to take the case to the Supreme Court of Florida. The mandate issued on July 3, 2023, and the case was closed. The DCA REVERSED AND REMANDED for further proceedings.
https://supremecourt.flcourts.gov/content/download/870955/opinion/download%3FdocumentV ersionID=60f87ed4-64b6-4b9e-84ea-2c87580cc38b
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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