Babcock v. Whatmore

• Decision Date: 26 February 1998
• Docket Number: No. 89807,89807
• Citation: 707 So.2d 702
• Parties: 23 Fla. L. Weekly S97 Mary Areca BABCOCK, Petitioner, v. James Marvin WHATMORE, Respondent.
• Court: Florida Supreme Court

Page 702

707 So.2d 702

23 Fla. L. Weekly S97

Mary Areca BABCOCK, Petitioner, v. James Marvin WHATMORE, Respondent.

No. 89807.

Supreme Court of Florida.

Feb. 26, 1998.

James C. Cunningham, Jr. and Patricia M. Baloyra of Bailey & Jones, P.A., Miami, Florida, for Petitioner.

Hendrik G. Milne; Craig P. Kalil and Silvia M. Garrigo of Aballi, Milne, Kalil & Garrigo, P.A., Miami, for Respondent.

SHAW, Justice.

We have for review Whatmore v. Babcock, 685 So.2d 82 (Fla. 3d DCA 1996), which conflicts with Hubbard v. Cazares, 413 So.2d 1192 (Fla. 2d DCA 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Mary Areca Babcock's marriage to James Marvin Whatmore was dissolved on October 20, 1977, by a final judgment which also awarded Babcock $160,556.43 for her special equities in Whatmore's assets. The court awarded Babcock an additional judgment against Whatmore for $10,080 on February 17, 1980, which purportedly represented unpaid child support arrearages. Babcock sued Whatmore on October 18, 1995, alleging that the judgments remained unpaid and sought to have both judgments aggregated into a single judgment. She acknowledged in her complaint that Whatmore is a resident of Asheville, North Carolina, but invoked Florida's jurisdiction pursuant to section 48.193(1)(e) of Florida's "long arm" statute. ¹ Whatmore responded by filing a motion to dismiss based upon lack of personal jurisdiction. He simultaneously filed a separate motion to have the prior judgments declared void pursuant to Florida Rule of Civil Procedure 1.540(b). ² , ³

The trial court denied the motion to dismiss, determining that Whatmore had voluntarily submitted to the court's jurisdiction by seeking affirmative relief in his motion for relief from the prior judgments. The district court reversed, holding that the motion for relief did not request affirmative relief, but even if it had:

[T]he law in this district as well as in the Fourth and Fifth districts is clear that once an objection based upon lack of jurisdiction over the person is timely interposed, it is preserved for all purposes and is not waived because affirmative relief is also sought.

Whatmore, 685 So.2d at 84 (citations omitted). The court noted conflict with Hubbard, wherein the court held that "a timely objection to personal jurisdiction may nevertheless be waived ... [by] a defendant who goes beyond matters of defense and seeks affirmative relief." 413 So.2d at 1193. Whatmore argues that his jurisdictional defense was preserved even if he had sought affirmative relief. We disagree.

This Court has noted that the Florida rule governing defenses is patterned after rule 12(b) of the Federal Rules of Civil Procedure, and that "[t]he import of our rules is to a like effect." ⁴ State ex rel. Eli Lilly & Co. v. Shields, 83 So.2d 271, 272 (Fla.1955). Federal courts have held that the defense of personal jurisdiction "may be waived by formal submission in a cause, or by submission through conduct": ⁵

It is settled beyond peradventure that the requirement of personal jurisdiction is intended to protect a defendant's liberty interests. Because the defense is a personal right, it may be obviated by consent or otherwise waived. A defendant may manifest consent to a court's in personam jurisdiction in any number of ways, from failure seasonably to interpose a jurisdictional defense, to express acquiescence in the prosecution of a cause in a given forum, to submission implied from conduct.

General Contracting & Trading Co. v. Interpole, Inc., 940 F.2d 20, 22 (1st Cir.1991).

A number of Florida courts have similarly concluded that an otherwise timely asserted challenge to personal jurisdiction may be waived:

A defendant who timely asserts a challenge to the court's jurisdiction over the person of the defendant is not prejudiced by participation in the trial of the suit and defending the matter thereafter on the merits. His challenge is preserved and he may obtain a review of the question of personal jurisdiction upon appeal should he suffer an adverse final judgment in the cause. State ex rel. Eli Lilly and Co. v. Shields, 83 So.2d 271 (Fla.1955)....

However, a timely objection to personal jurisdiction may nevertheless be waived. In jurisdictions which follow the rule that a defense on the merits is not a waiver, the courts have long held that a defendant who goes beyond matters of defense and seeks affirmative relief waives a previously asserted objection to the personal jurisdiction of the court. Thus a majority of federal courts have held that the filing of a permissive counterclaim is a request for affirmative relief which waives an objection to personal jurisdiction notwithstanding that the objection is timely made.

Hubbard, 413 So.2d at 1193 (citations omitted). We agree with the above reasoning of the federal and Florida courts that adhere to its reasoning and hold that a defendant waives a challenge to personal jurisdiction by seeking affirmative relief--such requests are logically inconsistent with an initial defense of lack of jurisdiction. ⁶

In the present case, we conclude that Whatmore's motion for relief from judgments was not a plea for affirmative relief but rather was a defensive motion seeking to avoid the judgments. We approve the district court's reasoning on this point:

First and foremost, we do not believe that the former husband's motion for relief from judgments can be properly characterized as one seeking affirmative relief. In that motion, the former husband essentially sought to avoid the judgments being sued upon or negate their validity by asserting lack of due process notice and payment respectively. We think that these are affirmative defenses which can properly be joined or pled in the alternative with the former husband's jurisdictional challenge. Fla.R.Civ.P. 1.140(b) ("No defenses or objection is waived by being joined with other defenses or objections in a responsive pleading or motion.").

....

We therefore conclude that the trial court erred in its determination that the former husband's jurisdictional challenge was waived in this action.

Whatmore, 685 So.2d at 83.

Based on the foregoing, we approve the result in Whatmore as explained herein, but we disapprove the following language: "[O]nce an objection based upon lack of jurisdiction over the person is timely interposed, it is preserved for all purposes and is not waived because affirmative relief is also sought." Id. at 84. We approve Hubbard on this issue.

It is so ordered. ⁷

KOGAN, C.J., and OVERTON, HARDING and WELLS, JJ., concur.

ANSTEAD, J., concurs in result only.

GRIMES, Senior Justice, concurs in result with an opinion, in which WELLS, J., concurs.

GRIMES, Senior Justice, concurring in result.

Subject to the exceptions discussed below, I agree that a defendant waives a challenge to personal jurisdiction by seeking affirmative relief. Otherwise, a defendant could prosecute a claim for affirmative relief while at the same time reserving the right to contend the lack of personal jurisdiction if he lost. Plaintiffs who seek affirmative relief submit themselves to the jurisdiction of the court, and there is no reason why defendants should not also do so.

However, contrary to the majority opinion, I do not believe that the filing of a motion under Florida Rule of Civil Procedure 1.540(b) to declare the greater of the two judgments void was merely a defense. ⁸ The wording of the rule which permits the court to "relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding" belies the suggestion that such a motion does not seek affirmative relief. In this case, however, I do not think the defendant could have run the risk of not filing a pleading directed toward setting aside the judgment. In essence, he was in the position of having to file a compulsory counterclaim. Had he not done so and subsequently lost his jurisdictional argument, I am confident that he would have been precluded from later seeking relief in a separate action.

This point was explained in Cumberland Software, Inc. v. Great American Mortgage Corp., 507 So.2d 794 (Fla. 4th DCA 1987). In that case, the plaintiff sued the defendant over the performance of a contract. The defendant filed as answer and counterclaim which included as assertion that the court lacked personal jurisdiction over the defendant. Concluding that the substance of the counterclaim was compulsory in nature, the court held that the defendant had not waived its right to challenge the court's jurisdiction. The court explained:

Rule 1.140(b), Florida Rules of Civil Procedure, specifically states that every defense shall be asserted in a responsive pleading. Additionally, lack of jurisdiction over the person may, at the option of the pleader, be made by motion. Therefore, when CSI, in the instant case, chose to assert its defense in its answer, rather than by motion, it did not waive its right to challenge the court's jurisdiction. As to the counterclaim, because it was compulsory, it would have been waived, if it had not been raised at the time of the answer. Rule 1.170(a), Fla. R. Civ. P.

Id. at 796. See Dragor Shipping Corp. v. Union Tank Car Co., 378 F.2d 241 (9th Cir.1967); Hasse v. American Photograph Corp., 299 F.2d 666 (10th Cir.1962).

The procedure employed in the instant case was awkward. The defendant should have moved to dismiss the complaint for lack of jurisdiction over the person, and only if the motion was denied seek the affirmative relief of setting aside the judgment through the filing of a counterclaim. Notwithstanding, I concur in the result of the court's decision because to penalize the defendant in this case for "putting the cart before the horse" would place form over substance.

WELLS, J., concurs.

1 Section 48.193, Florida Statutes (1993), states in pertinent part:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does...