Faller v. Faller, 51 So. 3d 1235

Faller appeals a nonfinal order denying his motion to dismiss his parents’ and siblings’ suit seeking to oust him as trustee of family trusts.
Faller, a Maryland resident, moved to dismiss for lack of personal jurisdiction and improper venue and to stay the action on comity due to a similar Maryland federal case.
At the initial hearing, the stay argument was heard first; the court denied the stay and later reconvened to hear personal jurisdiction issues.
The trial court held that Faller waived his personal jurisdiction defense by requesting a stay at the first hearing.
On appeal, the Florida appellate court reviews de novo and reverses, holding that seeking a stay was defensive and did not waive lack of personal jurisdiction.
The court explains that Rule 1.140(b) allows certain defenses by motion and that joining defenses does not constitute a waiver.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the stay request waive lack of personal jurisdiction?	Faller argues the stay was defensive and not affirmative relief.	Faller contends stay implicitly sought to advance jurisdictional defense and thus waived it.	No waiver; stay defensive and not affirmative relief.
Was the trial court's waiver ruling correct under Rule 1.140(b)?	Rule 1.140(b) defenses may be joined and no waiver arises from combined motions.	Waiver occurred because a stay was sought in the same proceeding as the jurisdiction issue.	Incorrect; defenses may be joined and waiver did not occur.
Does Florida law recognize defenses that do not waive personal jurisdiction?	There are several recognized defenses that do not waive lack of jurisdiction.	Rule 1.140(b) covers only seven defenses, implying waivers when combining defenses.	Florida recognizes nonwaiver defenses; listing is not exhaustive for waiver purposes.
Did Sprint v. Telimagine misstate the impact of a stay on waiver?	Sprint involved arbitration rights, not a general stay or waiver.	Sprint supports that some stays may be treated as affirmative relief.	Sprint does not establish that a general stay equates to affirmative relief causing waiver.

Babcock v. Whatmore, 707 So.2d 702 (Fla. 1998) (affirmative relief not necessary to waive jurisdiction defense)
Heineken v. Heineken, 683 So.2d 194 (Fla. 1st DCA 1996) (defensive actions do not constitute waiver)
Grange Ins. Assn. v. State, 757 P.2d 940 (Wash. 1988) (definition of affirmative relief and waiver scope)
Sprint Corp. v. Telimagine, Inc., 923 So.2d 525 (Fla. 2d DCA 2005) (arbitration-related stay not equivalent to waiver of jurisdiction)
Sun-Sentinel Co. v. DCF, 865 So.2d 1278 (Fla. 2004) (change of venue not waiving jurisdiction defenses; rule-based analysis)
Babcock v. Whatmore, 707 So.2d 702 (Fla. 1998) (affirmative relief concept in waiver analysis)
Heineken v. Heineken, 683 So.2d 194 (Fla. 1st DCA 1996) (defensive actions may be nonwaiving)
Berne v. Beznos, 819 So.2d 235 (Fla. 3d DCA 2002) (defense may be raised without waiving jurisdiction)
Two Worlds United v. Zylstra, 46 So.3d 1175 (Fla. 2d DCA 2010) (nonwaiver of jurisdiction defenses in various contexts)
Parker v. George S. Heilpern, Trust, 637 So.2d 295 (Fla. 4th DCA 1994) (objection to co-defendant’s proceedings as a nonwaiving action)
Oy v. Carnival Cruise Lines, Inc., 632 So.2d 724 (Fla. 3d DCA 1994) (protective orders and related defenses)
Permenter v. Feurtado, 541 So.2d 1331 (Fla. 3d DCA 1989) (stay litigation context and waiver considerations)
Cumberland Software, Inc. v. Great Am. Mortg. Corp., 507 So.2d 794 (Fla. 4th DCA 1987) (defenses joined with others do not waive jurisdiction)