In Snider v. Metcalfe, 2015 Fla. App. LEXIS 1427 (Fla. 4th DCA 2015), the Fourth DCA held that filing an initial motion to dismiss (not asserting lack of personal jurisdiction), an amended motion to dismiss (which asserted lack of in personam jurisdiction) over two years apart, participating in discovery, and filing a notice of intent to use trust funds to pay for attorneys’ fees and costs did not amount to submission to jurisdiction of the court under Fla. R. Civ. P. 1.140(b). In the instant case, “Appellant,” son of the deceased Harrison Snider, “Decedent,” was the beneficiary of three testamentary trusts set up by the Decedent. Appellant filed a complaint in 2009 against the current co-trustees of the trusts, “Appellees”, primarily alleging breach of fiduciary duty and breach of trust.
Appellees moved to dismiss the complaint on the grounds of statute of limitations and laches in February 2010. The motion did not claim lack of personal jurisdiction over Appellees as a defense. A hearing was not set upon the motion. While the motion was pending, Appellees responded to Appellant’s interrogatory requests. Nothing else took place in the case until December 2011, when Appellees filed a notice of intent to use trust funds to pay for attorneys’ fees and costs. Appellees filed an amended motion to dismiss in July 2012 which requested dismissal of the action solely on the basis of lack of personal jurisdiction over Appellees. After several additional amendments to both the complaint and the motion to dismiss, the trial court granted Appellees’ motion and dismissed the complaint on the grounds of lack of personal jurisdiction.
On appeal, the Fourth DCA agreed with the trial court, holding that Appellees took no steps in the proceedings that would amount to submission to the court’s jurisdiction. The Fourth DCA stated that “[l]ack of personal jurisdiction is a waivable defense that must be raised at the ‘first opportunity’ and before the defendant takes any steps in the proceeding constituting submission to the court’s jurisdiction.” The Fourth DCA reasoned in the action before them that Appellees only filed the initial and amended motion to dismiss, the notice of intent to use trust funds to pay for attorneys’ fees and costs pursuant to §736.0802(10), Fla. Stat., and responses to two discovery requests from Appellant. These actions by Appellees were not sufficient to amount to submission to the court’s jurisdiction nor did they constitute requests for affirmative relief. The court distinguished the instant case on the facts from those cited by Appellant on appeal, noting that in the instant case Appellees did not seek affirmative relief nor did they receive a ruling on their initial motion prior to their challenge to personal jurisdiction. In the cases cited by Appellant, the defendants waived their challenges to personal jurisdiction by 1) filing initial motions to dismiss without asserting the defense, obtaining a ruling on their motions, and then filing an amended motion asserting lack of jurisdiction for the first time; and 2) by seeking affirmative relief through filing their own pleadings and actively litigating the case in federal court for three years before asserting a jurisdictional challenge.
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