Zimmerman v. Weinberg, 88-2043
| Decision Date | 21 February 1990 |
| Docket Number | No. 88-2043,88-2043 |
| Citation | 557 So.2d 193 |
| Parties | 15 Fla. L. Weekly D481 Rex Daniel ZIMMERMAN, Appellant, v. Nathan WEINBERG, Appellee. |
| Court | Florida District Court of Appeals |
R. Fred Lewis of Magill & Lewis, P.A., Miami, and Kuvin & Denman, P.A., Fort Lauderdale, for appellant.
Marcia E. Levine of Fazio, Dawson, DiSalvo, Cannon, Levine & Abers, Fort Lauderdale, for appellee.
Appellant seeks review of the denial of his motion to vacate default. Appellee sued appellant for damages from a motorcycle accident. After substituted service, appellant did not respond and the clerk entered a default. After fourteen months, appellant filed a motion to dismiss for failure to prosecute, but at the hearing the trial judge found record activity and denied the motion. Later, appellant failed to get the pending trial continued so he could prepare the motion to vacate default raising insufficiency of the substituted service as its sole issue. The trial court eventually denied the motion to vacate default without written explanation, but the record indicates that the judge adopted appellee's argument that appellant had waived his claim of lack of jurisdiction by filing the various motions.
We affirm. Although filing a motion to continue in order to prepare an "answer or otherwise respond to the complaint" does not subject one to the jurisdiction of a court, Barrios v. Sunshine State Bank, 456 So.2d 590 (Fla. 3d DCA 1984), a waiver of a lack of jurisdiction claim does occur when a party makes an appearance and claims rights under available Rules of Civil Procedure. Joannou v. Corsini, 543 So.2d 308, 311 (Fla. 4th DCA 1989); Banco De Costa Rica v. Rodriguez, 550 So.2d 76, 77 (Fla. 3d DCA 1989). We believe our opinion also comports with this court's holding in Moo Young v. Air Canada, 445 So.2d 1102 (Fla. 4th DCA 1984), that motions which "go to the merits" 1 constitute a general appearance. Moo Young cited McKelvey v. McKelvey, 323 So.2d 651, 653 (Fla. 3d DCA 1976), which held "a general appearance ordinarily will be effected by making a motion involving the merits of plaintiff's claim and his right to maintain the suit and secure the relief sought."
Appellant's motion to dismiss for failure to prosecute acted as a waiver of his claim of lack of jurisdiction. The motion utilized Florida Rule of Civil Procedure 1.420(e) and involved substantial legal rights of the parties which affected the plaintiff's right to maintain the suit and secure the relief sought. 2
Although we find that the motion sub judice satisfies the Joannou and Rodriguez and Moo Young criteria, we certify the following question as one of great public importance:
DOES AN APPEARANCE BY THE FILING OF A MOTION TO...
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