ROBERT DOLAN v. KIM DOLAN, A/K/A KIM D. FERGUSON, 37 Fla. L. Weekly D453a (Fla. 3d DCA Feb. 22, 2012) – insufficiency of service waived if not asserted in first motion to dismiss

In this child support reduction case, the ex-wife filed a motion to dismiss addressing only the merits of the ex-husband’s complaint.  The court denied the motion.  A year later, the ex-wife hired another lawyer, who moved to dismiss on the basis of insufficient service of process.  The court ordered the ex-husband to serve an amended complaint on the ex-wife within five days.  The ex-husband was unable within the prescribed five days to serve the ex-wife, who apparently was evading service.  The court then dismissed the ex-husband’s lawsuit with prejudice.  The appellate court reversed, holding that the ex-wife had no basis to raise the issue of service of process in her second motion because she failed to do so in her first motion.  As a result, she waived the issue under Rule 1.140(b) and (h).

ROBERT DOLAN v. KIM DOLAN, A/K/A KIM D. FERGUSON, 37 Fla. L. Weekly D453a (Fla. 3d DCA Feb. 22, 2012)