MARIANA FIUZA AQUINO DE OLIVEIRA v. GREGORY CHARLES SIM

• Court: District Court of Appeal of Florida
• Decided: February 9, 2022
• Docket: 21-1255
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 9, 2022. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-1255 Lower Tribunal No. 20-12852 ________________

Mariana Fiuza Aquino de Oliveira, Appellant,

vs.

Gregory Charles Sim, Appellee.

An appeal from non-final orders from the Circuit Court for Miami-Dade County, Victoria del Pino, Judge.

Law Office of Kimberly H. Schultz, P.A., and Kimberly H. Schultz (Plantation), for appellant.

Gregory Charles Sim, in proper person.

Before EMAS, MILLER, and BOKOR, JJ.

MILLER, J. In this paternity action, appellant, Mariana Fiuza Aquino de Oliveira,

the mother, challenges two non-final orders, the first of which entered default

in favor of appellee, Gregory Charles Sim, the father, while the second

denied a motion to quash service of process. Under well-settled precedent,

we lack jurisdiction to review the propriety of the default at this juncture in

the proceedings. See Fascetti v. Fascetti, 795 So. 2d 1094, 1095 (Fla. 4th

DCA 2001) (holding that clerk’s defaults are not independently appealable).

Because no summons was issued, however, let alone served upon the

mother, we are constrained to reverse the order denying the motion to quash.

See Fla. Fam. L. R. P. 12.070(a)(1) (“On the commencement of the action,

... summons or other process authorized by law must be issued

immediately by the clerk or judge under the clerk’s or the judge’s signature

and the seal of the court and delivered for service.”); Ingenieria Y

Exportacion De Tecnologia S.L. v. Freytech, Inc., 210 So. 3d 211, 213 (Fla.

3d DCA 2016) (“Because no summons was ever served on . . . the foreign

defendant in this case, [the plaintiff] failed to comply with Florida’s service

requirements.”); State ex rel. Merritt v. Heffernan, 195 So. 145, 147 (Fla.

1940) (“[T]he real purpose of the service of summons ad respondendum is

to give proper notice to the defendant in the case that he is answerable to

the claim of plaintiff and, therefore, to vest jurisdiction in the court

2 entertaining the controversy . . . .”); Bay City Mgmt., Inc. v. Henderson, 531

So. 2d 1013, 1016 (Fla. 1st DCA 1988) (“When [the plaintiff] failed to issue

summons to the [defendants], they were not advised that they were

individually being called upon to answer the complaint and defend the suit.

Thus, they were not obliged to serve any paper.”); see also Sierra v. U.S.

Bank Tr., N.A. as Tr. for LSF9 Master Participation Tr., 299 So. 3d 402, 403

(Fla. 4th DCA 2020) (“A defensive motion that challenges personal

jurisdiction and that does not seek affirmative relief does not subject the

movant to the court’s jurisdiction.”).

Reversed and remanded.