Hubbard v. Cazares
| Decision Date | 14 December 1981 |
| Docket Number | No. 80-1199,80-1199 |
| Citation | 413 So.2d 1192 |
| Parties | Mary Sue HUBBARD, Appellant, v. Gabriel CAZARES and Margaret Cazares, Appellees. |
| Court | Florida District Court of Appeals |
Paul Antinori, Jr., Tampa, for appellant.
Walt Logan, St. Petersburg, Wagner, Cunningham, Vaughan, Genders & McLaughlin, Tampa, and Joel D. Eaton of Podhurst, Orseck & Parks, Miami, for appellees.
Gabriel and Margaret Cazares brought this suit against Mary Sue Hubbard and The Church of Scientology of California, Inc. (the Church) for damages based on alleged malicious prosecution, abuse of process, and invasion of privacy. Hubbard, a resident of California, was served with process in that state pursuant to section 48.193(1)(b), Florida Statutes (1979), which asserts "long arm" jurisdiction over a nonresident who, personally or through an agent, commits a tortious act within this state. By a timely motion to quash service of process and to dismiss, Hubbard challenged the trial court's personal jurisdiction over her under the Florida long arm statute. The trial judge denied the motion and Hubbard appeals. We affirm.
Subsequent to the filing of Hubbard's motion to quash and to dismiss, she and the Church each requested a change of venue under section 47.101(1)(b), Florida Statutes (1979). The trial judge responded with an order which Hubbard and the Church appealed to this court in a separate proceeding. We reversed with directions that venue be transferred. 1 Although the Cazareses did not raise the point in the trial court or before this court, it occurred to us that Hubbard's motion for change of venue was inconsistent with her earlier challenge of the trial court's jurisdiction of her person. 2 Upon consideration of the rules of law which apply in such a situation, we hold that Hubbard's action in requesting a change of venue constituted a waiver of her earlier filed objections to personal jurisdiction.
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). This court followed that rule in Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966), in holding that a corporate defendant did not waive its challenge to the personal jurisdiction of the court by joining with other defendants in a motion to dismiss a lis pendens and a motion to increase the bond posted by the plaintiff. A fortiori, while a general appearance in a cause prior to a challenge of personal jurisdiction waives the jurisdictional issue, a general appearance after a timely objection to personal jurisdiction does not. Compare Fulmer v. Northern Central Bank, 386 So.2d 856 (Fla. 2d DCA 1980), with White v. Nicholson, 386 So.2d 74 (Fla. 2d DCA 1980).
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. Receivers of Middlesex Banking Co. v. Realty Inv. Co., 104 Conn. 206, 132 A. 390 (1926); Shurden v. Thomas, 134 So.2d 876 (Fla. 1st DCA 1961). 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. Hook & Ackerman, Inc. v. Hirsh, 98 F.Supp. 477 (D.C.D.1951); Annot., 17 A.L.R.Fed. 388 (1973). The specific question in the case before us is whether Hubbard's request for change of venue constituted a request for affirmative relief within the meaning of this general rule. We have found no decision by any Florida court addressing that question.
In two modern cases from other jurisdictions, the courts held that where a request for change of venue preceded a timely objection to the trial court's personal jurisdiction, the movant waived the jurisdictional challenge. Killearn Properties, Inc. v. Lambright, Ind.App., 377 N.E.2d 417 (1978); Sangdahl v. Litton, 69 F.R.D. 641 (S.D.N.Y.1976). In the Killearn case, the court felt that the motion for change of venue was a request for affirmative relief by which the movant submitted himself to the personal jurisdiction of the court. In the Sangdahl case, the court observed that a motion for change of venue presupposes initial proper jurisdiction in the transferor court.
We hold that a request for change of venue following a timely asserted challenge to personal jurisdiction is a request for affirmative relief which constitutes a waiver of the jurisdictional challenge. In so holding, we perceive a distinction between the motions to dismiss lis pendens and to increase bond considered in Green v. Roth, and a motion for change of venue. In the former case, the motions were clearly matters of defense and the requested action of the court on the motions was the exercise of jurisdiction of the subject matter of the suit consistent with the challenged personal jurisdiction. Unlike those motions, a motion for change of venue requests the court to exercise its jurisdiction over the movant and is inconsistent with an objection by the movant to the existence of that jurisdiction. In our view, a motion for change of venue goes beyond a defense on the merits.
AFFIRMED.
The majority opinion holds that a party waives a previously filed objection to personal jurisdiction if...
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Heineken v. Heineken
...which hold that no affirmative relief is sought, and hence no waiver occurs, by requesting a change of venue, Hubbard v. Cazares, 413 So.2d 1192 (Fla. 2d DCA 1981); moving to quash a deposition subpoena, Banco de Costa Rica v. Rodriguez, 573 So.2d 833 (Fla.1991); moving for a protective ord......
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Banco De Costa Rica v. Rodriguez
...So.2d 537 (Fla. 2d DCA 1966); First Wisconsin National Bank of Milwaukee v. Donian, 343 So.2d 943 (Fla. 2d DCA 1977); Hubbard v. Cazares, 413 So.2d 1192 (Fla. 2d DCA 1981); McKelvey v. McKelvey, 323 So.2d 651 (Fla. 3d DCA However, when no affirmative relief is sought against an accorded rig......
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State v. Omega Painting, Inc.
...While we recognize that a "timely objection to personal jurisdiction may nevertheless [subsequently] be waived", Hubbard v. Cazares, (1981) Fla.App., 413 So.2d 1192, 1193, we do not agree with the Hubbard court's conclusion that a motion for change of venue, filed subsequent to the preserva......
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Williams v. Starnes, 87-3346
...petition for writ of prohibition followed. Initially, we observe that while personal jurisdiction may be waived, see Hubbard v. Cazares, 413 So.2d 1192 (Fla. 2d DCA 1981), rev. denied, 417 So.2d 329 (Fla.1982), subject matter jurisdiction cannot be waived or conferred upon a court by consen......