Faller v. Faller

• Decision Date: 14 January 2011
• Docket Number: No. 2D10-1930.,2D10-1930.
• Citation: 51 So.3d 1235
• Parties: Charles S. FALLER, III, as trustee, Appellant, v. Charles S. FALLER, Jr., Appellee.
• Court: Florida District Court of Appeals

51 So.3d 1235

Charles S. FALLER, III, as trustee, Appellant,
v.
Charles S. FALLER, Jr., Appellee.

No. 2D10-1930.

District Court of Appeal of Florida,
Second District.

Jan. 14, 2011.

51 So.3d 1236

Robert W. Goldman of Goldman Felcoski & Stone, P.A., Naples, for Appellant.

Gerald W. Pierce of Gerald W. Pierce, P.A., and C. Berk Edwards of Geraghty, Dougherty & Edwards, P.A., Fort Myers, for Appellee.

LaROSE, Judge.

A family squabble brings this case to us. Charles Faller, III, appeals a nonfinal order denying his motion to dismiss his parents' and siblings' lawsuit seeking to oust him as trustee of several family trusts. Mr. Faller, a Maryland resident, filed a motion to dismiss the complaint for lack of personal jurisdiction and improper venue. In the motion, he also sought a stay, based on comity, because of a similar lawsuit pending in Maryland federal court. See Faller v. Faller, No. DKC 09-0889, 2010 WL 1141202 (D.Md. March 22, 2010).

At the initial hearing on the motion, the parties recognized that there was insufficient time to address all issues. Mr. Faller asked and the trial court agreed to hear the stay argument first. The trial court denied Mr. Faller's request for a stay. Twenty days later, the trial court reconvened and heard Mr. Faller's personal jurisdiction arguments. The trial court ruled that Mr. Faller waived his personal jurisdiction defense by requesting a stay at the first hearing. Mr. Faller appeals. We have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(C)(i). We review the trial court's application of law to undisputed facts de novo. See Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010). We reverse.

Mr. Faller waived his personal jurisdiction defense only if he sought affirmative relief from the trial court. See Babcock v. Whatmore, 707 So.2d 702, 704 (Fla.1998). "[A]ffirmative relief [is] '[r]elief for which defendant might maintain an action independently of plaintiff's claim and on which he might proceed to recovery, although plaintiff abandoned his cause of action or failed to establish it.' " Heineken v. Heineken, 683 So.2d 194, 197 (Fla. 1st DCA 1996) (quoting Grange Ins. Assn. v. State, 110 Wash.2d 752, 757 P.2d 933, 940 (1988) (en banc) (quoting Black's Law Dictionary 56 (5th ed. 1979))). But, defending the case does not waive personal jurisdiction. Berne v. Beznos, 819 So.2d 235, 238 (Fla. 3d DCA 2002) ("[S]o long as the defending party makes a timely objection to personal jurisdiction, the defendant may defend the case without waiving the objection."); Heineken, 683 So.2d at 197 (stating that defensive actions do not constitute requests for...