Rubin on Probate Litigation

Romanoff v. Lazarus , 267 So.3d 33 (Fla. 4th DCA 2019) Failure to raise a defense of lack of personal jurisdiction at the right time can constitute a waiver of the defense altogether. The timing of the defense has to be exactly right or the defense will often be waived. Here, the defendant did not raise the defense in her first motion to dismiss, but did raise it in a second motion to dismiss which was filed before the court heard her first motion to dismiss. Lack of personal jurisdiction is a defense that must be raised at the first opportunity and before the defendant takes any steps in the proceeding which would constitute submission to the court's jurisdiction. However, a waiver will not occur if the initial motion is amended to include the defense before the motion is heard. The Court held that while an answer which fails to raise the defense may constitute a waiver of the defense, a motion to dismiss that fails to raise the defense and is amended before it is heard w...

Snider v. Metcalfe , 157 So.3d 422 (Fla. 4th DCA 2015), 2015 WL 444497 While part of a trust dispute, this case involved the procedural question of when one must raise a defense of lack of personal jurisdiction in a proceeding.  Here, the Court held that even though the trustee of the trust at issue did not assert her defense of lack of personal jurisdiction in her original motion to dismiss a beneficiary's complaint for breach of trust, because she raised it in a subsequent amended motion to dismiss, she did not waive the defense.  Interestingly, the Court held that neither filing a notice of intent to use trust funds to pay the trustee's attorney's fees nor the filing of two responses to discovery requests amounted to "submission to the court's jurisdiction" or requests for affirmative relief sufficient to waive the defense of lack of personal jurisdiction  The Court distinguished these facts from situations where the party asserting the defense obtaine...