IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
REYNALDO FRADERA,
Appellant,
v. Case No. 5D22-53 LT Case No. 2018-DR-4198 EVELYN FRADERA,
Appellee. ________________________________/
Opinion filed November 4, 2022
Nonfinal Appeal from the Circuit Court for Seminole County, Susan Stacy, Judge.
Brandon M. Tyson, of Tyson Law Firm, LLC, Winter Park, for Appellant.
Christopher V. Carlyle, of The Carlyle Appellate Law Firm, Orlando, for Appellee.
WOZNIAK, J.
In this marriage dissolution proceeding, Reynaldo Fradera appeals the
trial court’s order determining that it had personal jurisdiction over Mr.
Fradera. Mr. Fradera argues the trial court erred when it found that his motion requesting appointment of a special magistrate to conduct the sale of
marital property at issue in Evelyn Fradera’s partition claim subjected him to
personal jurisdiction. We agree and therefore reverse.
Background
In 2018, Ms. Fradera filed a petition for dissolution of marriage in the
trial court. Mr. Fradera responded by filing a motion to quash service and
dismiss the petition for lack of personal jurisdiction and a supporting affidavit.
He asserted that he was a New York resident and was served with the
petition in New Jersey and that the trial court did not possess personal
jurisdiction over him.
Ms. Fradera then filed an amended petition for dissolution of marriage,
adding a claim seeking partition of real property owned by Mr. Fradera and
Ms. Fradera as tenants by the entirety located in Seminole County. Shortly
thereafter, Mr. Fradera and Ms. Fradera jointly stipulated that the trial court
did not possess personal jurisdiction over Mr. Fradera and that Mr. Fradera
would withdraw his motion to quash service; Ms. Fradera also “agreed that
she will not seek any relief that would require the court to assume personal
jurisdiction over [Mr. Fradera].” The trial court ratified the joint stipulation by
order.
2 Mr. Fradera later filed a motion for appointment of special magistrate
pursuant to section 64.061(4), Florida Statutes (2021), to conduct a private
sale in order to partition the property at issue, stating, “It is undisputed in this
case that the Real Property is indivisible and cannot be divided without
prejudice to the parties.” Ms. Fradera then filed a motion to determine
personal jurisdiction, asserting that by seeking materially beneficial
affirmative relief, i.e., appointment of a special magistrate, Mr. Fradera had
subjected himself to personal jurisdiction.
After a hearing, the trial court granted Ms. Fradera’s motion. Citing to
the Second District Court of Appeal’s decision in First Wisconsin National
Bank of Milwaukee v. Donian, 343 So. 2d 943 (Fla. 2d DCA 1977), the trial
court held that Mr. Fradera’s motion for appointment of special magistrate
requested affirmative relief from the trial court that would be materially
beneficial to Mr. Fradera, and therefore Mr. Fradera was subject to personal
jurisdiction.
Analysis
We review a trial court’s determination of personal jurisdiction de novo.
France v. France, 90 So. 3d 860, 862 (Fla. 5th DCA 2012). The question
before this Court is whether Mr. Fradera’s request for appointment of a
special magistrate to sell the marital property stepped beyond in rem
3 jurisdiction and constituted a request for affirmative relief, thereby subjecting
him to personal jurisdiction. We hold that it did not.
“Personal jurisdiction refers to whether the actions of an individual or
business entity as set forth in the applicable statutes permit the court to
exercise jurisdiction in a lawsuit brought against the individual or business
entity in this state.” Borden v. E. European Ins. Co., 921 So. 2d 587, 591
(Fla. 2006) (citing Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 500
(Fla. 1989)). In contrast, in rem jurisdiction is “jurisdiction over a thing or a
piece of property” rather than a person. Springbrook Commons, Ltd. v.
Brown, 761 So. 2d 1192, 1193 (Fla. 4th DCA 2000). “If the cause of action
has the object of requiring the court to act directly on property or on the title
to property, it is an in rem action.” Seven Hills, Inc. v. Bentley, 848 So. 2d
345, 350 (Fla. 1st DCA 2003) (citing State, Dep’t of Nat. Res. v. Antioch
Univ., 533 So. 2d 869, 872 (Fla. 1st DCA 1988)). “[A] partition judgment is
unquestionably in rem,” Sammons v. Sammons, 479 So. 2d 223, 225 (Fla.
3d DCA 1985), and in dissolution proceedings, both the dissolution of the
marriage and the division of property rights may be conducted through in rem
jurisdiction. Montano v. Montano, 520 So. 2d 52, 53 (Fla. 3d DCA 1988)
(citing Davis v. Dieujuste, 496 So. 2d 806, 808 (Fla. 1986)). Because the
4 action below dealt exclusively with the dissolution of the marriage and the
parties’ property interests, the action was subject to in rem jurisdiction.
In an in rem action, a “court is not required to acquire in personam
jurisdiction over the landowner as a prerequisite to a valid court action.”
Miccosukee Tribe of Indians of Fla. v. Dep’t of Env’t Prot., 78 So. 3d 31, 33
(Fla. 2d DCA 2017). However, personal jurisdiction may be conferred by
consent or waived by a non-resident defendant if the defendant seeks
affirmative relief. Ge v. Swearingen & Assocs., Inc., 328 So. 3d 58, 60 (Fla.
5th DCA 2021) (quoting Sowden v. Brea, 47 So. 3d 341, 343 (Fla. 5th DCA
2010)); Empire Beauty Salon v. Com. Loan Sols. IV, LLC, 159 So. 3d 136,
140 (Fla. 5th DCA 2014) (citing Babcock v. Whatmore, 707 So. 2d 702, 704
(Fla. 1998)). “‘Affirmative relief’ has been defined as ‘relief sought by a
defendant by raising a counterclaim or cross-claim that could have been
maintained independently of the plaintiff’s action.’” Empire, 159 So. 3d at
140 (quoting Affirmative Relief, Black's Law Dictionary 1482 (10th ed. 2014)).
“[T]hose who participate in litigation by moving the court to grant requests
materially beneficial to them, have submitted themselves to the court’s
jurisdiction.” Ge, 328 So. 3d at 61 (quoting Inglis v. Casselberry, 137 So. 3d
389, 393 Fla. 2d DCA 2013)); see also Mason v.
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
REYNALDO FRADERA,
Appellant,
v. Case No. 5D22-53 LT Case No. 2018-DR-4198 EVELYN FRADERA,
Appellee. ________________________________/
Opinion filed November 4, 2022
Nonfinal Appeal from the Circuit Court for Seminole County, Susan Stacy, Judge.
Brandon M. Tyson, of Tyson Law Firm, LLC, Winter Park, for Appellant.
Christopher V. Carlyle, of The Carlyle Appellate Law Firm, Orlando, for Appellee.
WOZNIAK, J.
In this marriage dissolution proceeding, Reynaldo Fradera appeals the
trial court’s order determining that it had personal jurisdiction over Mr.
Fradera. Mr. Fradera argues the trial court erred when it found that his motion requesting appointment of a special magistrate to conduct the sale of
marital property at issue in Evelyn Fradera’s partition claim subjected him to
personal jurisdiction. We agree and therefore reverse.
Background
In 2018, Ms. Fradera filed a petition for dissolution of marriage in the
trial court. Mr. Fradera responded by filing a motion to quash service and
dismiss the petition for lack of personal jurisdiction and a supporting affidavit.
He asserted that he was a New York resident and was served with the
petition in New Jersey and that the trial court did not possess personal
jurisdiction over him.
Ms. Fradera then filed an amended petition for dissolution of marriage,
adding a claim seeking partition of real property owned by Mr. Fradera and
Ms. Fradera as tenants by the entirety located in Seminole County. Shortly
thereafter, Mr. Fradera and Ms. Fradera jointly stipulated that the trial court
did not possess personal jurisdiction over Mr. Fradera and that Mr. Fradera
would withdraw his motion to quash service; Ms. Fradera also “agreed that
she will not seek any relief that would require the court to assume personal
jurisdiction over [Mr. Fradera].” The trial court ratified the joint stipulation by
order.
2 Mr. Fradera later filed a motion for appointment of special magistrate
pursuant to section 64.061(4), Florida Statutes (2021), to conduct a private
sale in order to partition the property at issue, stating, “It is undisputed in this
case that the Real Property is indivisible and cannot be divided without
prejudice to the parties.” Ms. Fradera then filed a motion to determine
personal jurisdiction, asserting that by seeking materially beneficial
affirmative relief, i.e., appointment of a special magistrate, Mr. Fradera had
subjected himself to personal jurisdiction.
After a hearing, the trial court granted Ms. Fradera’s motion. Citing to
the Second District Court of Appeal’s decision in First Wisconsin National
Bank of Milwaukee v. Donian, 343 So. 2d 943 (Fla. 2d DCA 1977), the trial
court held that Mr. Fradera’s motion for appointment of special magistrate
requested affirmative relief from the trial court that would be materially
beneficial to Mr. Fradera, and therefore Mr. Fradera was subject to personal
jurisdiction.
Analysis
We review a trial court’s determination of personal jurisdiction de novo.
France v. France, 90 So. 3d 860, 862 (Fla. 5th DCA 2012). The question
before this Court is whether Mr. Fradera’s request for appointment of a
special magistrate to sell the marital property stepped beyond in rem
3 jurisdiction and constituted a request for affirmative relief, thereby subjecting
him to personal jurisdiction. We hold that it did not.
“Personal jurisdiction refers to whether the actions of an individual or
business entity as set forth in the applicable statutes permit the court to
exercise jurisdiction in a lawsuit brought against the individual or business
entity in this state.” Borden v. E. European Ins. Co., 921 So. 2d 587, 591
(Fla. 2006) (citing Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 500
(Fla. 1989)). In contrast, in rem jurisdiction is “jurisdiction over a thing or a
piece of property” rather than a person. Springbrook Commons, Ltd. v.
Brown, 761 So. 2d 1192, 1193 (Fla. 4th DCA 2000). “If the cause of action
has the object of requiring the court to act directly on property or on the title
to property, it is an in rem action.” Seven Hills, Inc. v. Bentley, 848 So. 2d
345, 350 (Fla. 1st DCA 2003) (citing State, Dep’t of Nat. Res. v. Antioch
Univ., 533 So. 2d 869, 872 (Fla. 1st DCA 1988)). “[A] partition judgment is
unquestionably in rem,” Sammons v. Sammons, 479 So. 2d 223, 225 (Fla.
3d DCA 1985), and in dissolution proceedings, both the dissolution of the
marriage and the division of property rights may be conducted through in rem
jurisdiction. Montano v. Montano, 520 So. 2d 52, 53 (Fla. 3d DCA 1988)
(citing Davis v. Dieujuste, 496 So. 2d 806, 808 (Fla. 1986)). Because the
4 action below dealt exclusively with the dissolution of the marriage and the
parties’ property interests, the action was subject to in rem jurisdiction.
In an in rem action, a “court is not required to acquire in personam
jurisdiction over the landowner as a prerequisite to a valid court action.”
Miccosukee Tribe of Indians of Fla. v. Dep’t of Env’t Prot., 78 So. 3d 31, 33
(Fla. 2d DCA 2017). However, personal jurisdiction may be conferred by
consent or waived by a non-resident defendant if the defendant seeks
affirmative relief. Ge v. Swearingen & Assocs., Inc., 328 So. 3d 58, 60 (Fla.
5th DCA 2021) (quoting Sowden v. Brea, 47 So. 3d 341, 343 (Fla. 5th DCA
2010)); Empire Beauty Salon v. Com. Loan Sols. IV, LLC, 159 So. 3d 136,
140 (Fla. 5th DCA 2014) (citing Babcock v. Whatmore, 707 So. 2d 702, 704
(Fla. 1998)). “‘Affirmative relief’ has been defined as ‘relief sought by a
defendant by raising a counterclaim or cross-claim that could have been
maintained independently of the plaintiff’s action.’” Empire, 159 So. 3d at
140 (quoting Affirmative Relief, Black's Law Dictionary 1482 (10th ed. 2014)).
“[T]hose who participate in litigation by moving the court to grant requests
materially beneficial to them, have submitted themselves to the court’s
jurisdiction.” Ge, 328 So. 3d at 61 (quoting Inglis v. Casselberry, 137 So. 3d
389, 393 Fla. 2d DCA 2013)); see also Mason v. Hunton, 816 So. 2d 234,
235 (Fla. 5th DCA 2002).
5 Because Mr. Fradera’s motion is wholly reliant on Ms. Fradera’s
petition for partition and could not be maintained without it, we agree with Mr.
Fradera that the trial court incorrectly characterized his motion to appoint
magistrate as one seeking affirmative relief materially beneficial to him. Mr.
Fradera simply sought to initiate the next procedural step for the trial court in
the partition action pursuant to section 64.061(4), which states that once the
parties have agreed that dividing the property at issue would cause prejudice
to one or both of the parties (as Ms. and Mr. Fradera did in both the partition
petition and the motion to appoint magistrate), the trial court may, “on motion
of any party and notice to the others[,] . . . appoint a special magistrate or
the clerk to make sale of the property either at private sale or as provided by
s. 64.071.” § 64.061(4), Fla. Stat. (2022). Following the statutory procedural
steps to protect an interest in the property, as Mr. Fradera did, does not
amount to seeking affirmative relief; rather, it is the simple exercise of a
party’s due process right to be heard before the property rights at issue are
decided. Doersam v. Brescher, 468 So. 2d 427, 428 (Fla. 4th DCA 1985).
As such, Mr. Fradera’s request did not waive personal jurisdiction by seeking
affirmative relief or material benefit, but rather the request was to move the
in rem proceedings forward and finalize the partition pursuant to section
64.061(4).
6 The sole case cited by the trial court in its order, First Wisconsin, is
distinguishable from the instant case. In First Wisconsin, a bank “sought to
foreclose on a mortgage where the Donians (appellees herein) were
guarantors of the underlying note obligation signed by other defendants.”
343 So. 2d at 944. Prior to a hearing on a motion for summary judgment, all
parties filed a joint motion seeking the trial court’s approval of a stay
agreement. 1 Id. The trial court granted the stay agreement, but ultimately
the defendants—including the appellees—failed to fulfill their obligations. Id.
Final judgment was entered, and after the foreclosure sale, the bank moved
for a deficiency judgment against the defendants. Id. The appellees then
moved to abate the proceedings for lack of personal jurisdiction, and the trial
court granted the motion. Id. The Second District Court of Appeal held that
the appellees’ act of seeking the trial court’s approval of the stay agreement
amounted to a motion for materially beneficial relief. Id. at 945. The court
reasoned that the joint motion seeking the trial court’s approval of the stay
agreement was not merely a motion extending time for an answer—which
would not waive jurisdictional defenses—but rather was an attempt to “have
a respite of six to nine months during which the borrower and [the appellees]
1 Phyllis Donian, an appellee and one of the guarantors, did not sign the stay agreement but she did sign the joint motion seeking approval of the agreement. Id.
7 could attempt to refinance the obligation being foreclosed by the Bank.” Id.
The court also noted that the appellees did not make an explicit challenge to
personal jurisdiction prior to or within the joint motion. Id.
Unlike the appellees in First Wisconsin, Mr. Fradera did not seek to
stay the proceedings to give himself a material benefit or to substantially
delay the proceeding; rather, he merely moved for the trial court to proceed
in accordance with the statutory process for partition. Further, Mr. Fradera
previously raised the issue of personal jurisdiction in the action, and Ms.
Fradera stipulated—ratified by the trial court—that the trial court did not have
personal jurisdiction and that she would not seek any relief requiring personal
jurisdiction over Mr. Fradera. Therefore, we find that the trial court erred in
determining that it had personal jurisdiction over Mr. Fradera.
REVERSED.
WALLIS and EDWARDS, JJ., concur.