Cordoba v. Cordoba

• Decision Date: 21 January 1981
• Docket Number: No. 79-162,79-162
• Parties: Jaime CORDOBA, Appellant, v. Sandra CORDOBA, Appellee.
• Court: Florida District Court of Appeals

Page 589

393 So.2d 589

Jaime CORDOBA, Appellant, v. Sandra CORDOBA, Appellee.

No. 79-162.

District Court of Appeal of Florida, Fourth District.

Jan. 21, 1981.

Rehearing Denied Feb. 25, 1981.

Nancy Little Hoffman, Fort Lauderdale, and Jeffrey P. Wasserman, of Litman, Muchnick & Wasserman, Hollywood, for appellant.

Tobias Simon, Miami, for appellee.

HERSEY, Judge.

This is an interlocutory appeal by the defendant from an order denying a motion to quash and dismiss for lack of jurisdiction.

The parties were formerly married and in March of 1977 the wife filed a four-count complaint against the husband in Circuit Court in Broward County, Florida.

Count I complained of the husband's removal of the minor child from the State of Wyoming contrary to a Wyoming custody order and demanded compensatory and punitive damages for an intentional tort; to-wit, the intentional infliction of emotional distress. This count required in personam jurisdiction.

The remaining counts were in the nature of in rem or quasi in rem jurisdiction. Count II sought to invalidate a mortgage on real property in Broward County which was owned by the parties as tenants in common and the mortgagee was joined as a party defendant. Count III claimed a special equity in the husband's share in the Broward County property and in the alternative sought to obtain the husband's share as lump sum alimony. Count IV requested partition of the property as an alternative to the relief requested under Count III.

Jurisdiction was acquired by constructive service by publication against the husband who was not a resident of the State of Florida. Husband who was not personally served moved to dismiss the complaint for lack of jurisdiction of the parties and the subject matter.

The trial court granted the motion as to Count I and denied it as to Counts II, III, and IV. In a prior interlocutory appeal this Court affirmed without opinion. Cordoba v. Cordoba, 356 So.2d 393 (Fla. 4th DCA 1978).

The trial court subsequently granted a motion for summary final judgment in favor of the wife on Count II and proceeded to trial on the remaining Counts III and IV. After trial on the merits in which the defendant appeared, judgment was rendered in favor of wife. A separate consolidated appeal from the summary final judgment (as to Count II) and the final judgment (as to Counts III and IV) is presently pending before this Court.

While in attendance at the trial of Counts III and IV, the husband was served with an alias summons, attached to which was a photostatic copy of the initial complaint containing the previously dismissed Count I. The husband moved to quash and to dismiss for lack of jurisdiction over the subject matter and person and to quash service of process. The trial court denied the motion to quash and to dismiss for lack of jurisdiction and the husband seeks review of the jurisdictional finding by interlocutory appeal. The issue is whether husband was immune from personal service of process regarding Count I (tortious infliction of mental distress) while attending the trial of the in rem counts. We hold the husband was immune and reverse.

Formerly, a question of jurisdiction over the person would have been raised by a special appearance. Modernization of the rules of civil procedure has resulted in elimination of such appearances and a party may now assert lack of jurisdiction in a responsive pleading or by motion. Rule 1.140, Florida Rules of Civil Procedure.

The case of Rorick v. Chancey, 130 Fla. 442, 178 So. 112 (1937), established the rule that non-residents who voluntarily come into the jurisdiction to attend court as parties or witnesses, or in some other capacity related to the necessities of pending litigation, are immune from service of process during the period of their attendance. An exception to this rule exists where the process is issued in litigation incidental to or correlated with the subject matter of the proceeding during attendance upon which the non-resident is served. In such situations immunity from service has been denied. State ex rel. Ivey v. Circuit Court of the Eleventh Judicial Circuit, 51 So.2d 792 (Fla.1951). Our Supreme Court refined this concept in Lienard v. DeWitt, 153 So.2d 302 (Fla.1963), holding that the exception to the immunity rule would be applied where there is an identity of parties and subject matter. The Court rejected an additional requirement of substantial identity of result.

The history and rationale of the rule granting immunity from service of process are considered at length at 72 C.J.S. Process § 80. Suffice it to say that the basic reason for the rule is to aid in the orderly administration of justice. It is important to that process that any person having knowledge of the facts in issue before the court be motivated to appear and to make those facts known. The possibility of being served with process while so involved might well deter witnesses or parties from coming forward.

The possibility of conflict looms whenever it is alleged that the court has in rem or quasi in rem jurisdiction and a party appears to protect his interests and is then served with process in an attempt to establish in personam jurisdiction. Here we hold there was no subject matter identity between Count I and the remaining counts. Thus the rule of immunity applied and the exception noted in Lienard v. DeWitt, supra, was not called into play.

There would appear to be two points of departure between the majority opinion and Judge Downey's well-written and thoughtful dissent which we here note.

First the dissent concludes that we have here identity of parties and of legal issues. The identity of parties element is undeniably present. Identity of legal issues is not. Count I raises legal issues sounding in tort involving the intentional infliction of emotional distress. The remaining counts pertain to an encumbrance upon and appellee's entitlement to an interest in real property. There are simply no points of similarity between the respective legal issues. The mere fact that all of the causes of action arose out of the shambles of a marital relationship does not, in the opinion of the majority, supply the identity which is essential to the point-of-view taken by the dissent. This lack of identity, alone, would seem to be sufficient to refute the contention that the exception to the immunity rule applies.

The dissent, however, goes one step further and announces an additional distinguishing feature: The immunity rule does not apply, maintains the dissent, to suitors in the very cause for which they have entered the jurisdiction. If this were the sum and substance of the rule then the dissent would become the majority opinion. We suggest, however, that a more correct statement is that the immunity rule does not apply to suitors in the very cause for which they have entered the jurisdiction where there exists identity of parties and legal issues. The dissent disposes of appellants' reliance on Murphy & Jordan, Inc. v. Insurance Company of North America, 278 So.2d 296 (Fla.3d DCA 1973), by pointing out that in that case there was no identity of parties. So perhaps the dissent concedes that even where process issues in the same cause there must be identity of the parties to invoke the exception. What remains, then, is whether there must also be identity of legal issues. We read Lienard v. DeWitt (supra) as answering this question in the affirmative. If the rule were different then a party finding a non-resident defendant's vacant lot in Florida could commence litigation here joining as many causes of action as he might have against that defendant in a multi-count complaint and eventually perfect service as the appellee attempted to do in this case. The other side of the coin would be that if the dissent became the law of Florida the non-resident defendant might well decide that he could not afford to subject himself to liability on the other counts or the expense of litigating in a foreign state so that he would not make himself available to litigate the in rem count. Thus the fact-finding process would be stalled, the judicial process would not be well-served and, in fact, the plaintiff might well pirate the vacant lot by summary final judgment against his absent and silent adversary.

For these reasons we think that the rule of immunity rather than the exception is more appropriate under these circumstances.

Applying this rule to the case at bar, we reverse and remand with instructions to grant the motion to quash service of process and to dismiss Count I for lack of jurisdiction over the person of appellant.

REVERSED AND REMANDED.

BERANEK, J., concurs.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge, dissenting:

Jaime Cordoba appeared as a witness in his own behalf in the Circuit Court of Broward County to defend against his erstwhile wife's claims, which arose out of their marital relationship. Specifically, the claims were for: alimony, special equity in jointly held...