Astra v. Colt Industries Operating Corp., 83-1395
| Decision Date | 05 July 1984 |
| Docket Number | No. 83-1395,83-1395 |
| Citation | 452 So.2d 1031 |
| Parties | ASTRA d/b/a Unceta and Company, Appellant, v. COLT INDUSTRIES OPERATING CORPORATION, The Garcia Corporation and T.G.C., Inc., Appellees. |
| Court | Florida District Court of Appeals |
Joseph P. Metzger of Horty, Springer & Metzger, West Palm Beach, for appellant.
Kathryn M. Beamer of Schuler & Wilkerson, P.A., West Palm Beach, for appellee-Colt Industries Operating Corp.
Shelley H. Leinicke of Wicker, Smith, Bolmqvist, Tutan, O'Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellees-The Garcia Corp. and T.G.C., Inc.
This litigation arises out of the untimely death of Walter B. Hadley, III, who was accidentally killed when struck by a bullet from a pistol in the handbag of a law enforcement officer while Hadley and the officer were present in the Boston Restaurant and Bar in Delray Beach. It appears the officer's handbag either fell or was knocked from a table to the floor and accidentally fired.
Hadley's personal representative sued the officer in question, the County Sheriff, Colt Industries Operating Corporation, and others. Colt filed a third party complaint against Astra d/b/a Unceta & Company, a foreign corporation domiciled in Spain, for negligent manufacture of the gun in question, and Garcia Corporation and T.G.C., Inc., the exclusive American importer and distributor of Astra handguns. Garcia and T.G.C. filed a crossclaim against Astra for negligent manufacture and for contribution. Astra filed a motion to dismiss Colt's third party complaint, attacking the claim for indemnification. The motion did not raise any question of personal jurisdiction over Astra. Five months later, but before the motion to dismiss was heard, Astra filed an amendment to its motion to dismiss alleging lack of jurisdiction over the person. Astra also filed a motion to strike Garcia's crossclaim as being premature because Garcia's liability to Colt had not been determined. Several months later, but before the motion was heard, Astra filed an amendment to the motion to strike asserting lack of personal jurisdiction. Subsequently, Astra filed a motion for leave of court to file the aforementioned amendments. The motions and amendments were considered by the trial court and both motions to dismiss and for leave to amend were denied. From that interlocutory order, Astra has perfected this appeal.
The record reflects that Astra manufactured the gun in question and sold it to Garcia's predecessor in interest in the early 1960's. Astra was served with process pursuant to Section 48.193, Florida Statutes (1981), the Florida Long Arm Statute. It also appears that Astra did nothing in the litigation that could constitute a waiver of its objection to personal jurisdiction other than its filing of the original motions to dismiss and strike.
Appellees contended that Astra made a general appearance when it initially filed its motions to dismiss and strike without including the jurisdictional issue. Astra argues that, since an attack on the personal jurisdiction of the court can be joined with a motion directed to the merits of the complaint pursuant to Rule 1.140, Florida Rules of Civil Procedure, the amendments to the motions prior to their being heard by the court save it from having waived the so-called special appearance attacking jurisdiction. Furthermore, Astra contends the service under the Long Arm Statute was defective because neither the pleadings nor the facts alleged were adequate to warrant resort to such service.
None of the cases cited by the parties answered the first issue presented. Appellees cite numerous cases which hold that the first step that a defendant takes in a proceeding, whether by motion or responsive pleading, must raise the issue of personal jurisdiction or the issue...
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