Community Federal Sav. and Loan Ass'n of Palm Beaches v. Wright, 83-1079

• Decision Date: 20 June 1984
• Docket Number: No. 83-1079,83-1079
• Citation: 452 So.2d 638
• Parties: COMMUNITY FEDERAL SAVINGS AND LOAN ASSOCIATION OF the PALM BEACHES, Appellant, v. Karen L. WRIGHT, Guardian of the Person and Property of Robert W. Olsker, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 638

452 So.2d 638

COMMUNITY FEDERAL SAVINGS AND LOAN ASSOCIATION OF the PALM BEACHES, Appellant, v. Karen L. WRIGHT, Guardian of the Person and Property of Robert W. Olsker, Jr., Appellee.

No. 83-1079.

District Court of Appeal of Florida Fourth District.

June 20, 1984.

Frederick M. Dahlmeier of Cromwell & Remsen, Riviera Beach, for appellant.

Charles L. Brown, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellee-Robert W. Olsker, Jr.

HERSEY, Judge.

Community Federal Savings and Loan Association of the Palm Beaches (the mortgagee) appeals from a non-final order setting aside a default and final judgment in a foreclosure proceeding.

Robert W. Olsker executed promissory notes and two mortgages encumbering the real property which ultimately became the subject matter of these foreclosure proceedings. Upon his death the property was set aside as homestead and the fee simple title vested in Robert W. Olsker, Jr., who was at all pertinent times a minor (the minor). Karen L. Wright, a step-sister of the minor, was appointed as guardian of his person and property (the guardian).

Although funds were available in a guardianship account the guardian failed to make mortgage payments, whereupon foreclosure proceedings were instituted by the mortgagee. The complaint and all subsequent pleadings named as sole defendant "Karen L. Wright as guardian of the person and property of Robert W. Olsker, Jr." Service of process was effected on the guardian and on her resident agent. Inexplicably, no responsive pleadings were filed and ultimately a default and final judgment were entered. In due course the property was sold at a foreclosure sale to the highest bidder for a price of $36,000, although it was stipulated that the property was worth in excess of $100,000. The mortgagee was paid in full from the proceeds of the sale. A certificate of title was duly issued by the clerk.

The minor and his step-sister (the guardian) were evicted by the sheriff. The minor then learned for the first time of the foreclosure proceedings and, indeed, of the default in making the mortgage payments. He successfully petitioned for the appointment of a guardian ad litem who filed the motion to set aside the default judgment and as well, the sale of the property, pursuant to Florida Rule of Civil Procedure 1.540.

Apparently because the trial court felt that the sale itself could not be set aside before joinder of the purchaser, an order was entered setting aside only the default and the final judgment of foreclosure.

The mortgagee appeals, advancing five points for our consideration.

First, it is contended that the purchaser at the foreclosure sale is an indispensible party to proceedings which result in setting aside the final judgment ordering such sale. We need not decide this point since, in any event, the purchaser became a party by virtue of his motion to set aside the notice of lis pendens filed by the guardian ad litem subsequent to the judicial sale.

The motion to set aside the notice of lis pendens did not question the jurisdiction of the court over the person of the purchaser. While it is true that it is no longer necessary to appear specially to contest the jurisdiction of the court in order to preserve the defense of lack of jurisdiction, it is also true that where some affirmative action is taken it must be coupled with an objection to the jurisdiction of the court over the person or such jurisdictional inadequacy is waived. Green v. Hood, 120 So.2d 223 (Fla. 2d DCA 1960); Fla.R.Civ.P. 1.140(h). Clearly, a motion to set aside a lis pendens subjects the movant to the jurisdiction of the court. Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966). In addition, the purchaser was given notice of all proceedings subsequent to the sale and the purchaser's attorney attended each of the two hearings on the motion to vacate the default. The fact that the purchaser's attorney chose to take no active part in those proceedings is of no consequence. For all practical purposes the purchaser was a party to the action upon the filing of the motion to set aside the notice of lis pendens.

Appellant's second point on appeal concerns the question of whether a minor is an indispensible party in an action "wherein his duly authorized and appointed guardian has been named and service of process is obtained upon such guardian in a manner provided by law." Fee simple title to the real property encumbered by the mortgages sought to be foreclosed was in the minor. It is well established that in an action to foreclose a mortgage the owner of the fee simple title is an indispensible party. See 37 Fla.Jur.2d Mortgages and Deeds of Trust § 296, at 262 n. 26. This is so even where the titleholder is a minor. See 39 C.J.S. Guardian and Ward § 179, at 359, 360 (A ward is a necessary party to a suit affecting his title to real property and cannot be bound by such an action brought against the guardian alone.) and 39 Am.Jur.2d Guardian and Ward § 153, at 119 ("[A]ll actions relating to the property of the ward ... must be brought against the ward himself, and not against the guardian."). Throughout appellant's brief the statement is made that the minor was not made a party. This concession is reinforced by the pleadings and the balance of the record from the trial court. We therefore conclude that the judgment of foreclosure is void because the minor was never made a party.

Parenthetically we note that the parties exchange arguments as to the necessity of "formal notice" under Florida Rule of Probate and Guardianship Procedure 5.040(a), and the type of service of process appropriate under the circumstances present in this case. The concept of "formal notice" is peculiar to probate and guardianship proceedings in the probate division of circuit court. It has no application to suits of a civil nature filed in other divisions of circuit court. Fla.R.P. & G.P. 5.010. The sufficiency of service of process in civil litigation is controlled by Florida Rule of Civil Procedure 1.070 and Chapter 48, Florida Statutes (1983), whether or not the party is a minor or other incompetent.

As to the type of service of process, appellant takes the position that, where a guardian has been appointed, service may be perfected on a minor by delivering a copy of the process, together with the complaint, petition or other initial pleading, to the guardian. §§ 48.041(2) and 48.031, Fla.Stat. (1983). However, appellant fails to read section 48.041(2) in pari materia with section 48.041(1). Section 48.041(1) states that service on incompetents is accomplished by reading the process to the minor and to the person in whose custody the minor is and by further serving said process on the guardian ad litem or other person if one is appointed by the court to represent the minor. Subsection 2 merely provides the method of service on the guardian by reference to section 48.031. The minor was never named in the instant suit much less read the process. The latter procedural deficiency would render the final judgment voidable on appeal, Smith v. Langford, 255 So.2d 294 (Fla. 1st DCA 1971); Williams v. Richardson, 432 So.2d 58 (Fla. 3d DCA 1983); however, here the judgment of foreclosure is void for the reasons previously indicated.

Further appellant argues that since the provisions for notice and virtual representation apply in guardianship, citing section 744.106, Florida Statutes (1983), then any judgment entered against a guardian binds the ward even if such judgment results from a default. This is clearly wrong. Although section 731.303(2)(b)(1) provides that, to the extent there is no conflict of interest between them, orders binding a guardian of the property bind the ward whose estate he controls, this hypothesis is limited to probate and guardianship proceedings in which a judgment has been entered in due course and with due process. Even this concession is more an exception than a rule. And it is clearly not the...