Kelly v. Torres , 260 So. 3d 410 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed November 28, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-1595
Lower Tribunal No. 15-251
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Angela Kelly,
Petitioner,
vs.
Vivian Torres, etc., et al.,
Respondents.
A Case of Original Jurisdiction – Prohibition.
Tammi A. Calarco, P.A., and Tammi A. Calarco, for petitioner.
Xander Law Group, P.A., and Wayne R. Atkins, for respondent Vivian
Torres.
Before SUAREZ, SALTER, and SCALES, JJ.
SUAREZ, J.
Angela Kelly petitions for a writ of prohibition against the Eleventh Judicial
Circuit Court judge presiding over the case of Vivian Torres, as plenary guardian
of Manuel Rosario Romero v. Ana R. Romero and Angela F. Kelly, et al., case no.
2015-00251-CA01. We deny the petition.
In her efforts to recover $423,607.91 alleged to have been wrongfully
obtained by Ana Romero [“Romero”] and Angela Kelly [“Kelly”] from Manuel
Romero, his plenary guardian Vivian Torres [“Torres”] brought a complaint
against Romero and Kelly to recover the funds. The circuit court entered a default
judgment against Romero for the full amount. Romero no longer had the funds,
which apparently had been transferred to Kelly. After significant effort, Torres
located Kelly and attempted to have her served, but was unable to complete service
because Kelly sought to evade service of process and to avoid every attempt at
bringing her to court.
Kelly filed a motion to dismiss the initial complaint for alleged insufficient
service of process; the trial court denied the motion and ordered Kelly to answer
the complaint. Kelly then filed a petition for certiorari in this Court seeking to
quash that order. The petition was denied. Subsequently, the trial court entered an
“Agreed Order” granting Torres leave to amend the complaint against Kelly. Kelly
then filed this petition for a writ of prohibition to prevent the trial court from
continuing the suit against her, claiming lack of both subject-matter and personal
jurisdiction.
A discretionary writ of prohibition may issue only where a petitioner
demonstrates that the circuit court acted without jurisdiction or in excess of its
jurisdiction. English v. McCrary, 348 So. 2d 293, 296 (Fla.1977). Here, where the
trial court has both subject matter jurisdiction and personal jurisdiction over the
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defendant, prohibition is not the appropriate mechanism to test the correctness of
the order below. See State ex rel. Eli Lilly & Co. v. Shields, 83 So. 2d 271 (Fla.
1955) (holding prohibition is not available to prohibit a court from exercising
personal jurisdiction over a party when the court has subject-matter jurisdiction
over the case); Cruz v. Citimortgage, Inc., 197 So. 3d 1185 (Fla. 4th DCA 2016).
Kelly argues that the trial court lost jurisdiction over her when it issued the
default judgment against her co-defendant Romero because Kelly had not been
served at the time that judgment issued. A default judgment against one co-
defendant, however, is not effective to terminate the cause of action against a co-
defendant who was not served with process until after the judgment was rendered.
Calhoun v. Lee, 405 So. 2d 1067 (Fla. 2d DCA 1981). Further, the mere entry of a
default is not the equivalent of a judgment, nor is it a final disposition: “a default
does not affect the status, rights, or liability of a codefendant.” 49 C.J.S.
Judgments § 272 (Sep. 2018 update). In fact the record shows that Kelly was not
served with the initial complaint because she strenuously evaded service of
process. In any event, the trial court determined that the 2015 default judgment
was, in effect, a partial judgment against Romero, and Kelly was a named
defendant. Now that there is service of process against Kelly and an agreed order
granting Torres leave to amend the complaint, Torres can proceed against Kelly.1
Kelly has the option to seek a remedy on appeal from a final judgment.
1 The record reflects that the theft of $423,607.91 from the elderly ward meets the
jurisdictional $15,000 subject-matter threshold of the circuit court.
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We find no basis for prohibition in any of the points raised and deny the
petition.
ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN
DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE
FILED WITHIN FIVE DAYS THEREAFTER.
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