Opinion
No. 2D21-1142
02-11-2022
COAST PUMP & SUPPLY CO., INC., Appellant, v. William MATHIS and Jered Mathis, d/b/a JV & P Farms, Appellees.
Gregg Horowitz, Sarasota, for Appellant. Cox Law, PLLC, Brandon, for Appellees.
Gregg Horowitz, Sarasota, for Appellant.
Cox Law, PLLC, Brandon, for Appellees.
KELLY, Judge.
Coast Pump & Supply Company, Inc., appeals from an order dismissing its complaint against William Mathis, an Alabama resident, for lack of personal jurisdiction. We reverse.
Coast Pump, a Florida corporation, sued Mathis and his grandson, Jered Mathis, d/b/a JV & P Farms, for breach of contract. After Coast Pump filed its complaint, Mathis wrote a letter to the court in which he admitted to conducting business with Coast Pump, claimed his debt was paid in full, and stated that he could "prove [his] statements" to the court. The day before Mathis's letter was filed with the court, defense counsel filed a limited notice of appearance on behalf of both men and later filed a motion to dismiss for lack of jurisdiction.
After a hearing on the motion dismiss, the court dismissed Jered from the action but reserved ruling on whether Mathis waived his personal jurisdiction defense by failing to raise it in his pro se letter. The court ordered the parties to submit written argument on the issue and thereafter granted the motion to dismiss. In its order, the court found that Mathis did not waive personal jurisdiction because defense counsel's notice of appearance was the first pleading filed in the action. We disagree. We have found no support in the rules of civil procedure for the trial court's treatment of defense counsel's notice of appearance as a "pleading," and in fact, case law holds otherwise. See Picchi v. Barnett Bank of S. Fla., N.A ., 521 So. 2d 1090, 1091 (Fla. 1988) (stating that a notice of appearance is a nonresponsive paper and citing with approval Trawick's Florida Practice and Procedure, § 8–1, Definitions (1985)); Robles v. Fed. Nat'l Mortg. Ass'n , 255 So. 3d 986, 989 (Fla. 3d DCA 2018) (noting that a notice of appearance constitutes "any paper" requiring notice prior to the entry of a default but stating that it is not a "responsive pleading"); Bowman v. Kingsland Dev., Inc ., 432 So. 2d 660, 662 n.1 (Fla. 5th DCA 1983) ("The filing of a 'notice of appearance' as a responsive pleading to a declaration (complaint) was a practice in Florida prior to 1950, but under Florida Rule of Civil Procedure 1.100 such a paper is not a responsive pleading and is no substitute for an answer or motion."). Thus, we conclude that Mathis's letter, which constituted an answer to the complaint, was the first pleading filed in the action.
The record does not contain a transcript of the hearing.
"A defendant wishing to contest personal jurisdiction must do so in the first step taken in the case, whether by motion or in a responsive pleading, or that issue is waived and [the] defendant has submitted himself to the court's jurisdiction." Century-Nat'l Ins. Co. v. Frantz , 320 So. 3d 929, 930 (Fla. 2d DCA 2021) (alteration in original) (quoting Consol. Aluminum Corp. v. Weinroth , 422 So. 2d 330, 331 (Fla. 5th DCA 1982) ). Because Mathis failed to raise the issue of personal jurisdiction in his answer, he waived his right to later assert that defense. See Fla. R. Civ. P. 1.140(b) ; Frantz, 320 So. 3d at 931. We therefore reverse the order dismissing Coast Pump's complaint against Mathis for lack of personal jurisdiction.
Reversed.
LUCAS and ATKINSON, JJ., Concur.