DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SUSAN ROMANOFF,

Appellant,

v.

JOY LAZARUS,

Appellee.

No. 4D18-2161

[ March 27, 2019 ]

Appeal of non-final order from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Karen M. Miller, Judge; L.T. Case 

No. 502016CP003787XXXNB.

Shlomo Y. Hecht of Shlomo Y. Hecht, P.A., Miramar, for appellant.

Robert A. Wight of Downey McElroy, P.A., Palm Beach Gardens, for 

appellee.

PER CURIAM.

Susan Romanoff appeals a non-final order denying her motion to 

dismiss a personal representative’s (“PR”) Amended Petition to Recover 

Estate Assets in an underlying probate action. She argues the trial court 

erred in denying her motion because she did not waive her right to assert 

a personal jurisdiction challenge. She acknowledges that she did not raise 

the defense in her initial motion to dismiss, but she filed a second motion 

to dismiss wherein she raised the defense prior to a trial court ruling on 

the jurisdictional issue. We reverse and conclude that she did not waive 

her right to assert a personal jurisdiction defense.

The procedural posture of this case is as follows. In July 2017, the PR 

filed a petition to recover assets against Romanoff. On October 26, 2017, 

Romanoff moved to dismiss the petition, challenging multiple pleading 

deficiencies. She did not raise a personal jurisdiction challenge. The PR 

moved to amend the petition.

Romanoff then filed a motion to stay discovery and an amended motion 

to include a stay based on a personal jurisdiction challenge. The court 
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held a hearing to decide: (1) The PR’s motion for leave to file its amended 

petition; and (2) Romanoff’s motion to stay discovery. The court granted 

the PR’s motion for leave to file its amended petition and granted 

Romanoff’s motion to stay discovery pending the motion to dismiss.

On December 6, 2017, Romanoff filed a second motion to dismiss that 

challenged personal jurisdiction. In support, she filed an affidavit stating 

she is a New Jersey resident with insufficient Florida contacts.

The PR filed a response, arguing that Romanoff waived the right to 

assert a personal jurisdiction defense because it was not raised in her 

initial motion to dismiss. The court held a non-evidentiary hearing on the 

motion to dismiss. At the hearing, the court clarified that it had not ruled 

on the personal jurisdiction issue at the last hearing but had deferred 

ruling until Romanoff’s motion to dismiss was heard.

Following arguments of counsel regarding personal jurisdiction, the 

trial court denied the motion to dismiss by written order. From this order, 

Romanoff appeals.

“Lack of personal jurisdiction is a waivable defense that must be raised 

at the ‘first opportunity’ and before the defendant takes any steps in the 

proceeding constituting submission to the court’s jurisdiction.” Snider v. 

Metcalfe, 157 So. 3d 422, 424 (Fla. 4th DCA 2015) (citations omitted); see 

also Fla. R. Civ. P. 1.140(b) and (h).

A waiver does not occur “if the initial motion to dismiss is amended to 

include the defense before the motion is heard.” Snider, 157 So. 3d at 424

(citations omitted).

“Whether a defendant has waived the defense of lack of personal 

jurisdiction is a pure question of law, which we review de novo.” Id. 

(citation omitted).

In Snider, we affirmed a trial court’s order granting a motion to dismiss 

based on lack of personal jurisdiction where the appellee filed an initial 

motion to dismiss based on other grounds but, before obtaining a ruling, 

filed a motion to dismiss based on lack of personal jurisdiction two years 

later. Id. at 425; see also Astra v. Colt Indus. Operating Corp., 452 So. 2d 

1031, 1032-33 (Fla. 4th DCA 1984) (reversing the trial court’s order 

denying a motion to dismiss where defendant filed a motion to dismiss 

attacking the claim on the merits, but then five months later filed an 

amended motion to assert personal jurisdiction before the initial motion 

was heard); Cepero v. Bank of N.Y. Mellon Tr. Co., N.A., 189 So. 3d 204, 
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206 (Fla. 4th DCA 2016) (explaining that if an initial motion to dismiss 

does not include a claim of lack of jurisdiction, the claim is not waived if 

the defendant amends the motion to assert the defense prior to a ruling 

on the initial motion).

Here, the PR contends that at the time Romanoff filed her original 

motion to dismiss, “the defense of lack of personal jurisdiction existed and 

was available for Romanoff to assert.” The PR maintains that Romellotti v. 

Hanover Amgro Insurance Co., 652 So. 2d 414 (Fla. 5th DCA 1995), is 

controlling because of the “identical procedural posture” here.

In Romellotti, the appellant filed a complaint for a declaratory judgment 

seeking personal injury protection benefits against an insurance company. 

Id. at 414. The insurance company filed an answer, and the appellant 

filed an amended complaint. Id. The insurance company then filed a 

motion to dismiss for lack of personal jurisdiction. Id. The appellant 

responded to the motion by arguing that the insurance company had 

waived the defense of personal jurisdiction due to its failure to raise the 

defense “in its initial responsive pleading or in a motion directed at his 

initial complaint.” Id.

The Fifth District reversed the trial court’s order granting the motion to 

dismiss based on lack of personal jurisdiction. Id. The court determined 

that the insurance company should have asserted the defense in its 

answer to the appellant’s initial complaint. Id. at 415.

We do not find the procedural posture in Romellotti identical to the 

posture here, because Romanoff did not file an answer at any point in the 

litigation. Romanoff did file a motion to stay discovery prior to filing her 

second motion to dismiss; however, a request for stay is defensive and 

does not constitute a waiver of a lack of jurisdiction defense. See Faller v. 

Faller, 51 So. 3d 1235, 1237 (Fla. 2d DCA 2011).

Based on Snider, Astra, and Cepero, we find that Romanoff did not 

waive the defense of lack of personal jurisdiction, because she raised it in 

the second motion to dismiss filed less than two months after her first 

motion. More important, the second motion was filed before the trial court 

ruled on the issue. We therefore reverse and remand for further 

proceedings consistent with this opinion.

Reversed and Remanded.

GROSS, TAYLOR and CIKLIN, JJ., concur.
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* * *

Not final until disposition of timely filed motion for rehearing.