Banco De Costa Rica v. Rodriguez

BARKDULL, Judge. The plaintiff filed a cause of action against Banco De Costa Rica, a non-resident. Prior to service, Rodriguez served a notice of taking deposition and subpoena duces tecum pursuant to the provisions of Rule 1.310(a), Florida Rules of Civil Procedure on Citizens and Southern International Bank, the holder of the defendant’s correspondent bank account. Thereafter the defendant purported to appear specially and moved for a protective order prohibiting the taking of said deposition. No attack was made on personal jurisdiction. The trial court denied the protection order. Thereafter the defendant moved to dismiss the complaint for lack of personal jurisdic [77] tion due to the failure of the plaintiff to obtain service of process on the defendant. The motion to dismiss was denied. This appeal ensued. We affirm. Rule 1.310(a), Florida Rules of Civil Procedure permit the taking of any depositions by party plaintiff immediately upon filing suit, except that of the defendant within the first thirty days after service of process. The plaintiff in the instant action availed himself of rights accorded under the rule. The defendant, not attacking personal jurisdiction, moved only to prohibit the depositions, because it had not been served. This was a seeking of affirmative relief and waived a subsequent jurisdictional objection. It has been held that when a request is made to use the power and authority of a court to prevent the plaintiff from exercising a right accorded by the applicable rules of procedure, or statutes, such a request, or motion, will constitute a general appearance. Joannou v. Corsini, 543 So.2d 308 (Fla. 4th DCA 1989); Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966); First Wisconsin National Bank of Milwaukee v. Donian, 343 So.2d 943 (Fla. 2d DCA 1977); Hubbard v. Cazares, 413 So.2d 1192 (Fla. 2d DCA 1981); McKelvey v. McKelvey, 323 So.2d 651 (Fla. 3d DCA 1976). However, when no affirmative relief is sought against an accorded right, but a rule or statute is involved such as an appearance or an extension of time for filing a pleading, in these instances a motion requesting such relief has been held not to constitute a general appearance. Public Gas Company v. Coletti, 409 So.2d 1026 (Fla.1982); Barrios v. Sunshine State Bank, 456 So.2d 590 (Fla. 3d DCA 1984). Therefore, for the reasons above stated, the order under review is affirmed. Affirmed. McNULTY, JOSEPH P., Associate Judge, concurs.