Cummings v. Palm Beach Marble & Tile, Inc.

497 So. 2d 711, 11 Fla. L. Weekly 2345, 1986 Fla. App. LEXIS 10497

• Court: District Court of Appeal of Florida
• Decided: November 12, 1986
• Docket: No. 4-86-0307
• Status: Published

Opinion

DOWNEY, Judge.

This is a timely appeal from a non-final order denying appellant’s motion to dismiss a cross-claim for insufficiency of service of process and to quash service of process.

Appellee, Palm Beach Marble & Tile, Inc., (P.B. Marble) sued Appellant, Alan Cummings, and appellees, Helene Cummings and R.S. Black, Inc., (Black). Thereafter, Black filed a cross-claim against Alan Cummings, which Cummings answered, including a defense of insufficiency of service of process. Alan Cummings then filed a cross-claim against Black. Finally, Alan Cummings filed a motion to dismiss for insufficiency of service of process and motion to quash service of process, which the court heard and denied. This appeal is to review that order.

The trial court denied Cummings’ motion to dismiss and quash, based upon insufficiency of service of process, because Cummings had waived his objection to service of process by himself filing a cross-claim against Black. This was a correct ruling by the trial court. Had Cummings not invoked the jurisdiction of the trial court by himself filing a cross-claim asking for affirmative relief, he could have maintained his defensive posture and required Black to serve him with a summons to obtain jurisdiction over Cummings regarding Black’s cross-claim. By filing his own cross-claim Cummings waived that right. Shurden v. Thomas, 134 So.2d 876 (Fla. 1st DCA 1961). See also Hubbard v. Cazares, 413 So.2d 1192 (Fla.2d DCA 1981).

Accordingly the order appealed from is affirmed.

GLICKSTEIN and GUNTHER, JJ., concur.