Byers v. FIA Card Services, N.A.
82 So. 3d 1166
Fla. Dist. Ct. App.2012Background
- FIA filed a complaint against Byers; Byers appealed a trial court denial of his motion to quash service of process.
- Byers, pro se, sought extension of time to respond; FIA agreed and the court granted the extension.
- Within the extension period, Byers filed a motion to quash service (stating it was by special appearance) with reasons why service was improper.
- Byers amended the motion to quash adding another basis for relief; the trial court denied the motion, citing waiver by filing pleadings and limited appearance.
- The court did not address the merits of Byers's motion to quash.
- The appellate court held that Byers did not waive lack of service by filing an extension; the merits must be addressed on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does extension of time constitute a general appearance? | Byers | FIA | No waiver; extension not a general appearance |
| Did Byers' extension-related actions submit to jurisdiction and waive lack of service? | Byers | FIA | No submission to jurisdiction; remand to address merits |
Key Cases Cited
- Solmo v. Friedman, 909 So.2d 560 (Fla. 4th DCA 2005) (submission to jurisdiction waives challenge)
- Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So.2d 794 (Fla. 4th DCA 1987) (foundation for waiver principle)
- Barrios v. Sunshine State Bank, 456 So.2d 590 (Fla. 3d DCA 1984) (motion for enlargement of time not a general appearance)
- Evans v. Thornton, 898 So.2d 151 (Fla. 4th DCA 2005) (participation may waive defense if no objection to service)
- Bush v. Schiavo, 871 So.2d 1012 (Fla. 2d DCA 2004) (active trial-court participation can waive objections)