Opinion
Case No. 5D19-1115
10-11-2019
SHANNON EDWARD EWELL, Appellant, v. SUSAN A. TRAINOR, Appellee.
Gregory W. Eisenmenger and R. Scott Robinson, of Eisenmenger, Robinson, Blaue & Peters, P.A., Viera, for Appellant. No Appearance for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Appeal from the Circuit Court for Brevard County, Michelle Vitt Baker, Judge. Gregory W. Eisenmenger and R. Scott Robinson, of Eisenmenger, Robinson, Blaue & Peters, P.A., Viera, for Appellant. No Appearance for Appellee. PER CURIAM.
In 2017, Susan A. Trainor obtained a final judgment of injunction for protection against stalking violence against Shannon Edward Ewell. Although Ewell was served with process and appeared at the final hearing, unbeknownst to the trial court, several years earlier, a different division of the same circuit court had found Ewell to be incapacitated and appointed a limited guardian of his person. Among the rights removed from Ewell was the right to "make informed decisions regarding the right to sue, or assist in the defense of suits of any nature against him." In 2019, Ewell, through counsel, filed a motion for relief from the final judgment of injunction pursuant to Florida Family Law Rule of Procedure 12.540, contending that the final injunction was void as proper service was never perfected on the guardian. In an unelaborated order, the trial court denied the motion. We reverse and remand.
When a legal guardian has been appointed for the incompetent person, process against the incompetent person must be served on the legal guardian as provided in section 48.031, Florida Statutes. § 48.042(1)(a), Fla. Stat. (2017). That did not occur here. Proper service of process is indispensable for the court to have personal jurisdiction over the incompetent person, unless properly waived, even though the court may have subject matter jurisdiction. See Drake v. Wimbourne, 112 So. 2d 27, 29 (Fla. 2d DCA 1959) (explaining that statutes must be strictly complied with when service of process is to be effected on incompetent person). Until proper service of process is made on the incompetent person, there can be no determination of the parties' adverse claims. See Bussey v. Legislative Auditing Comm., 298 So. 2d 219, 221 (Fla. 1st DCA 1974).
The trial court never properly obtained personal jurisdiction over Ewell in this matter. As a result, the final injunction should have been set aside pending proper service of process. For these reasons, we reverse the trial court's order and remand for further proceedings.
REVERSED and REMANDED. ORFINGER, LAMBERT and EISNAUGLE, JJ., concur.