Opinion
No. 1D22-1351
06-14-2023
Kruis RETHERFORD, Appellant, v. Adolphus Levette "A.L." KIRKLAND, Appellee.
Michael P. Dickey and Connor D. Healey of Dunlap & Shipman, P.A., Panama City, for Appellant. Clayton R. Syfrett, Panama City; Stephen T. Etheredge of Buntin, Etheredge & Fowler, LLC, Dothan, AL, for Appellee.
Michael P. Dickey and Connor D. Healey of Dunlap & Shipman, P.A., Panama City, for Appellant.
Clayton R. Syfrett, Panama City; Stephen T. Etheredge of Buntin, Etheredge & Fowler, LLC, Dothan, AL, for Appellee.
Roberts, J.
Appellant, Kris Retherford, appeals the trial court's decision to quash service of process on Appellee, A.L. Kirkland. She argues she properly served Mr. Kirkland and even if not, he waived the defense. We find the court erred in quashing service because Mr. Kirkland waived the defense by failing to timely raise it.
Facts
Ms. Retherford and Mr. Kirkland were in a personal relationship for many years. They were also professionally involved in the operation and management of businesses that designed, manufactured, and sold outward powerboats in Florida under the name Glasstream, Inc., and in Alabama under the name Glasstream Powerboats, LLC. For years, they split their time between Florida and Alabama until 2018 when Hurricane Michael caused most of the business operations to shift to Alabama. In 2020, their personal relationship soured, which led to the demise of their professional relationship as well.
In May 2020, Glasstream, Inc., sued Mr. Kirkland in Bay County, Florida (hereinafter the Glasstream case). In June 2020, Ms. Retherford individually sued Mr. Kirkland in Bay County, Florida, for declaratory relief for ownership of the Glasstream entities, trespass, and declaratory relief that the parties did not have a common law marriage (hereinafter the individual case). Ms. Retherford's hired process server served the summons and complaints on Mr. Kirkland's adult daughter at a friend's home on Ricker Avenue in Santa Rosa Beach, Florida. In August 2020, Mr. Kirkland moved to dismiss or change the venue of the individual case based on the argument he was a resident of Alabama and the business primarily operated out of Alabama. The motion did not raise any issue with service of process.
While the Glasstream case and the individual case are very similar, they have separate plaintiffs. Ms. Retherford never obtained a ruling to consolidate the two cases. This appeal only concerns the individual case.
In December 2021, Mr. Kirkland filed a motion to dismiss for improper service of process of the individual complaint and motion for abatement of action and for dismissal for lack of personal jurisdiction (the amended motion to dismiss). The motion argued substituted service on Mr. Kirkland's daughter was improper under section 48.031(1)(a), Florida Statutes, because he was a resident of Alabama; Ricker Avenue was not his usual place of abode; and his daughter did not reside at Ricker Avenue. Ms. Retherford filed a memorandum of law in opposition, arguing service was proper and even if it was not, Mr. Kirkland had waived the defense by failing to raise it in his first motion to dismiss. After a hearing, the trial court granted Mr. Kirkland's motion to dismiss for improper service and quashed service.
Standard of Review
Ms. Retherford only appeals the portion of the trial court's order regarding service. We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i). She first argues service was proper. While we agree with the trial court's analysis that substituted service was improper under section 48.031(1)(a), that is of no import because the trial court should not have considered the defense as it was waived under the plain language of Florida Rule of Civil Procedure 1.140.
Interpretation and application of the Florida Rules of Civil Procedure involve questions of law that we review de novo . See Saia Motor Freight Line, Inc. v. Reid , 930 So. 2d 598, 599 (Fla. 2006). The rules "are construed in accordance with the principles of statutory construction." Id.
Analysis
Rule 1.140 allows for defenses like lack of personal jurisdiction and insufficiency of service of process to be made by motion. Fla. R. Civ. P. 1.140(b). Rule 1.140 further provides, in relevant part:
(g) Consolidation of Defenses. A party who makes a motion under this rule may join with it the other motions herein provided for and then available to that party. If a party makes a motion under this rule but omits from it any defenses or objections then available to that party that this rule permits to be raised by motion, that party shall not thereafter make a motion based on any of the defenses or objections omitted[.]
Ms. Retherford argued below that Mr. Kirkland waived his improper service defense because he did not raise it in his first motion to dismiss. The trial court rejected this argument. The court found Mr. Kirkland had raised the defense in a motion to dismiss in the Glasstream case, which was so intertwined that Ms. Retherford should have been on notice that service was defective in the individual case as well. The trial court further found Mr. Kirkland cured any waiver because he raised the defense in his amended motion to dismiss before the hearing. We disagree.
The defense of improper service was available to Mr. Kirkland at the time of the first motion to dismiss as he had already raised it in the Glasstream case. Instead, he waited fifteen months to raise it in the amended motion to dismiss. We disagree that the amended motion cured any waiver because it was filed before the hearing. The plain language of rule 1.140(g) provides for no such exception. The Second District recently considered this issue in Gannon v. Cuckler , 281 So. 3d 587 (Fla. 2d DCA 2019). In Gannon , the plaintiff challenged the dismissal of her complaint for lack of personal jurisdiction, arguing the defendant failed to include a personal jurisdiction defense in the original motion to dismiss, thus waiving the defense under the plain language of rule 1.140. Id. at 590–91. The defendant had not included the defense in its original motion, but had filed an amended motion raising the defense that was filed prior to the hearing. Id.
The Second District agreed with the plaintiff that the defendant's amended motion asserting personal jurisdiction did not preserve the issue as the defense was waived. Id. at 593. The Second District stated:
Under rules 1.140(g) and (h), when a party "makes a motion" under rule 1.140(b) and fails to join all rule 1.140(b) defenses then available to it, it cannot "thereafter make a motion" asserting the omitted defense and is deemed to have waived that defense. Thus, once [defendant] filed "a motion" under rule 1.140(b) and omitted a personal jurisdiction defense, it waived that defense and could not "thereafter make" another motion advancing it. The fact that [defendant] labeled its second motion an "amended motion" and filed it prior to hearing on the original motion does not matter insofar as the rule as worded is concerned.
Id. at 595.
The Second District acknowledged that the Third, Fourth, and Fifth Districts "have held that when a party files an amended motion under rule 1.140(b) before a hearing on an original motion under the rule, it may assert a previously omitted rule 1.140(b) defense in the amended motion and have it treated as timely." See Cepero v. Bank of N.Y. Mellon Tr. Co., N.A ., 189 So. 3d 204, 206 (Fla. 4th DCA 2016) ; Snider v. Metcalfe , 157 So. 3d 422, 424–25 (Fla. 4th DCA 2015) ; Re-Emp. Servs., Ltd. v. Nat'l Loan Acquisitions Co ., 969 So. 2d 467, 470 (Fla. 5th DCA 2007) ; Waxoyl, A.G. v. Taylor, Brion, Buker & Greene , 711 So. 2d 1251, 1254 (Fla. 3d DCA 1998). Gannon emphasized these opinions were not rooted in the plain language of the rule and certified conflict with the decisions:
A review of these opinions and others cited in them or that cite to them shows that they do not state a basis for an amendment-before-hearing exception that is at all grounded in the text of rule 1.140. That is unsurprising: As we have shown, an amendment-before-hearing exception to the consolidation and waiver provisions of rule 1.140(g) and (h) finds no support in the text of the rules. The most these decisions assert as reasoning is (1) that not allowing an exception in such circumstances would be "hypertechnical," Astra v. Colt Indus. Operating Corp ., 452 So. 2d 1031, 1032 (Fla. 4th DCA 1984), and (2) that the purpose of rule 1.140(g) and (h) is to discourage "dilatory tactics," a concern that is not present when a party amends before a hearing, Gross v. Franklin , 387 So. 2d 1046, 1049 (Fla. 3d DCA 1980).
Gannon , 281 So. 3d at 598.
As Gannon makes clear, the plain language of rule 1.140 does not allow the amended motion to "cure" the omission in this case. Under the plain language of rule 1.140, Mr. Kirkland waived the defense of improper service of process when he failed to include it in his first motion to dismiss. As such, the trial court erred in considering the merits of the defense.
Conclusion
The portion of the order on appeal granting the amended motion to dismiss for improper service and quashing service is REVERSED , and the case is REMANDED for further proceedings consistent with this opinion.
B.L. Thomas and M.K. Thomas, JJ., concur.