The Non-Resident Witness Immunity Rule – More Info to Help You

This article covers the non-resident witness immunity rule, its exceptions, a rule illustration, support from other decisions, and tips to avoid confusion with other jurisdictional issues.

Bernhard Law FirmIf you have any questions as to the non-resident witness immunity rule, witness testimony, depositions, or service of process and summonses, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

 

The Non-Resident Witness Immunity Rule, Again

Under well-established Florida law, non-resident corporate officers are immune from service of process on claims against them personally while at corporate officer depositions; this is the non-resident witness immunity rule. Murphy & Jordan, Inc., v. Insurance Company of N. Am., 278 So. 2d 296, 297 (Fla. 3d DCA 1973) (holding where co-defendants/nonresidents were deposed as corporate officers of co-defendant corporation, they were immune from process on personal claims in same case, as identity of parties was lacking).

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The Florida Supreme Court long ago established this rule; that non-residents who come into this jurisdiction to attend proceedings as parties or witnesses, or in some other capacity related to the necessities of pending litigation, are immune from service of process during the period of their attendance. Rorick v. Chancey, 130 Fla. 442, 178 So. 112 (Fla. 1937); Higgins v. Garcia, 522 So. 2d 95, 96 (Fla. 3d DCA 1988) (holding where nonresident corporate officer was deposed as corporate rep and not as an individual, officer was immune from process while attending deposition); Cordoba, 393 So. 2d at 590.

The purpose of this rule is to prevent a chilling effect on non-resident attendance at depositions and other proceedings, and to incentivize voluntary attendance of these proceedings by non-residents. Lee v. Stevens of Fla., Inc., 578 So. 2d 867, 868 (Fla. 2d DCA 1991) (policy of the rule); Munsell v. Bludworth, 474 So. 2d 1286, 1288 (Fla. 4th DCA 1985) (policy of the rule); Cordoba v. Cordoba, 393 So. 2d 589, 591 (Fla. 4th DCA 1981) (policy of the rule).

The Exceptions to the Non-Resident Witness Immunity Rule

The only exception to this immunity occurs when there is both identity of the parties and identity of the issues, causes of action, and subject matter between the matter in attendance and the matter served. Id. at 590 (citing Lienard v. DeWitt, 153 So. 2d 302 (Fla. 1963)). Because Florida law governing service of process must be strictly construed and enforced, so too must the exception to the non-resident witness immunity rule. See Shurman v. Atlantic Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001) (holding inmate’s “usual place of abode” for service of process was prison, not home where inmate had lived with his wife, and thus substitute service through wife must be quashed).

When analyzing this immunity exception, identity of parties means that the person must have appeared for deposition/examination in the exact same name and capacity as that for which he is then served with new process. Murphy & Jordan, 278 So. 2d at 297. Thus, there is no identity of parties if a witness appears in his corporate capacity but is served in his individual capacity. Id.

Identity of issues means that the person must have appeared for deposition/examination on the exact same issue, cause of action, and subject matter as that for which he is then served process. Francini v. Int’l Marble Trades, Inc., 546 So. 2d 777, 778 (Fla. 3d DCA 1989). Thus, there is no identity of issues if a witness appears to testify on his corporation’s failure to pay a debt (one cause of action), but is served on a derivative claim against him personally for failure to pay the same debt (a distinct cause of action). Id. at 777–78. There is no identity of issues even when claims are “incidental to or correlated with the pending action against [a] corporation.” Id. Given the rarity of complete identity, the exception to immunity “is strictly limited.” Munsell at 1287.

Any application of the immunity rule and its strictly limited exception must be made in accordance with the rule’s policy and purpose: to avoid deterring witnesses or parties from coming forward for fear of being served with process on new claims or in different capacities. Munsell at 1288; Cordoba, 393 So. 2d at 591; Lee v. Stevens, 578 So. 2d at 868.

Rule Illustration Through Murphy & Jordan v. Insurance Co. of North America

The Third District Court of Appeal’s per curiam decision in Murphy & Jordan, Inc., v. Ins. Co. of N. Am., 278 So. 2d 296 (Fla. 3d DCA 1973), is a strong case to illustrate application of the non-resident witness immunity rule. In Murphy & Jordan, the Court held that where non-resident co-defendants/corporate officers come to Florida to be deposed as officers of a co-defendant company, the officers are immune from process on the claims against them individually and personally in the same case. 278 So. 2d at 297. The facts in Murphy & Jordan are as follows:

  • Plaintiff filed a complaint against a Florida company (Murphy & Jordan, Inc. of Florida) and its non-resident owners and corporate officers individually (William Murphy and Thomas Jordan.) Murphy at 296.
  • William Murphy was a resident of New Jersey and Thomas Jordan was a resident of New York. Murphy at 297.
  • Plaintiff did not serve Murphy or Jordan individually with summonses at their residences. Murphy at 296
  • Plaintiff was able to serve process on the Florida company (M&J of Fla.) by serving its agent with a summons. Murphy at 296.
  • Plaintiff then served notices of deposition to the Florida company (M&J of Fla.) to take the corporate officer depositions of Jordan as president and Murphy as secretary, in their corporate capacity only. Murphy at 296.
  • When Murphy and Jordan arrived in Florida for their corporate officer depositions, Plaintiff served them with summonses in their individual capacities on personal claims that were different causes of action in that same lawsuit. Murphy at 296
  • The individual officers (Murphy and Jordan) moved to quash the service of process with the trial court. Murphy at 297.
  • The trial court denied that motion and Murphy and Jordan appealed. Murphy at 297.
  • Murphy and Jordan contended that a non-resident named in the complaint as an individual party-defendant is immune from service of process in the same action while appearing as an officer witness for deposition of the co-defendant company. Murphy at 297.
  • Plaintiff argued that Murphy and Jordan were not immune from service at corporate deposition because the parties were the same and the issues were the same, as it was all in the same case. Murphy at 297.

When addressing these facts and posture in Murphy & Jordan, the Court reiterated the well-established rule that witnesses attending deposition outside the territorial jurisdiction of their residence are immune from service of process while attending deposition and for a reasonable time before and after going to deposition and in returning to their homes, even when this all occurs in the same case between co-defendants. Id. at 297. The Court considered and rejected application of the limited exception to immunity, as there was no identity of parties and issues:

In the case sub judice the witnesses, William Murphy and Thomas Jordan, were deposed as corporate officers only and not in their capacity as individuals. It would appear that they were to testify also as corporate witnesses. It follows then that the necessary element of identity of parties is lacking and, therefore, the general rule of immunity from service of process, rather than the exception, applies.

Id. at 297 (emphasis added).

The Court held that there was no identity of parties to sustain the exception to immunity, and thus immunity applied, as Murphy and Jordan were appearing in their corporate capacity as to claims against the company party, but served in their individual capacity as to claims against them as individual parties. Id. at 297. This Court reversed the trial court’s denial of the motion to quash service on the corporate officers at the co-defendant corporate deposition. Id. at 297. This Court remanded the cause with directions to quash process and service. Id. at 297.

Immunity under Murphy & Jordan is well supported by other decisions

The Court’s decision in Murphy & Jordan is well supported by other decisions providing immunity under these circumstances.

In Francini v. Int’l Marble Trades, Inc., 546 So. 2d 777 (Fla. 3d DCA 1989), this Court held that a nonresident corporate officer from London, who was attending deposition as a witness in a case against his corporation, was immune from service of process for derivative claims against him through the same corporation. In Francini, the derivative claims against the officers directly arose from the officers’ failure to settle the underlying suit. Id. at 777–78. This Court held it was not enough that the derivative suit “was incidental to or correlated with the pending action against the corporation.” Id. at 778. As this Court’s Judge Ferguson held, there was no identity of parties: “In this case, service of process on the nonresident witness with a complaint naming him as a defendant in a different cause of action was invalidated by the immunity rule.” Id. at 778. Judge Ferguson also held there was no identity of subject matter, as one claim was for the corporation’s failure to pay the debt, while the other was to hold officer individually responsible for that debt. Id. at 778.

In Higgins v. Garcia, 522 So. 2d 95 (Fla. 3d DCA 1988), this Court held per curiam that where nonresident corporate officer was deposed as corporate representative and not as an individual, officer was immune from process while attending deposition. 522 So. 2d at 96. There, the plaintiff brought an action against Solimar Corp. and its officer, Philip Higgins, alleging breach of contract and fraud. Id. That plaintiff could not obtain service on Higgins, so instead served notice of corporate representative deposition on the corporate defendant (Solimar). Id. The officer (Higgins) appeared for the limited purpose of attending deposition as officer of the corporation, at which point the plaintiff served Higgins in his individual capacity to answer the claims against him personally. Id. The trial court refused to quash the service and this Court reversed, citing Murphy & Jordan, 278 So. 2d 296. This Court also noted that any agreement between counsels that the corporate officer would answer personal questions for broad discovery “was not a waiver of the prior written understanding that he was appearing solely as a corporate representative.” Id.

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In Pomerantz v. Hollowell, 502 So. 2d 1314 (Fla. 3d DCA 1987), this Court held per curiam that a Georgia resident, who entered Florida only to provide deposition testimony in a suit to which he was not a party, was immune from service of process when he was served immediately following deposition. 502 So. 2d at 1314. This Court made this ruling because the deponent was a resident of Georgia who entered Florida to provide testimony on a cause of action wherein he was not a party, and as such he was immune. Id.

In Mallin v. Sunshine Kitchens, Inc., 314 So. 2d 203 (Fla. 3d DCA 1975), this Court held per curiam that process served upon a defendant, who entered the jurisdiction for the purpose of discussing settlement, was invalid after plaintiff served him during the good-faith settlement conference. 314 So. 2d at 204. This Court reversed the trial court’s denial of motion to quash, with directions to quash service. Id.

In Lawson v. Benson, 136 So. 2d 353 (Fla. 3d DCA 1962), this Court held per curiam that a nonresident who was in Florida as a party and a witness in his child custody proceeding against his former wife was immune from service of process in an action by his former attorney for fees in an unsuccessful, prior custody proceeding. 136 So. 2d at 353. This Court held the defendant was immune even though the newly served claims were connected with the cause of action for which the witness was appearing. Id.

In Cordoba v. Cordoba, 393 So. 2d 589 (Fla. 4th DCA 1981), the Fourth District Court held there was immunity from service where a nonresident husband was served with process in Florida on Count I of his wife’s four-count complaint, after appearing to defend on Count II and Count IV. 393 So. 2d at 590–92. Count I raised legal issues sounding in tort (infliction of emotional distress), and the remaining Counts raised issues on a real property encumbrance and the wife’s entitlement to property. That plaintiff was able to achieve service of process on Counts II–IV through constructive service (publication) on her husband, because those claims were in rem. Id. at 590. However, Count I was a claim against her husband personally and individually, which required in personam jurisdiction through personal service. Id. at 590. That plaintiff attempted to get personal service on Count I by serving the husband at trial for Counts II–IV. The Fourth District Court held that there was no identity of legal issues and the husband was immune from service of process on Count I. Id. at 591–92. That Court’s Judge Hersey held that immunity applied even though the parties were the same on all counts in the same case. Id.

In Lee v. Stevens of Fla., Inc., 578 So. 2d 867 (Fla. 2d DCA 1991), the Second District Court held per curiam that two claims did not possess identity of parties, subject matter, or issues, where a plaintiff served a Canadian resident individually on a promissory note claim when he appeared to testify as a representative of a Florida corporation on a related condo construction claim by the same plaintiff. Id. at 868. The Second District reiterated the policy for applying immunity, to encourage the voluntary attendance of witnesses, and ordered service be quashed. Id.

In sum, myriad appellate decisions support Murphy & Jordan. These decisions show that the immunity rule applies across any circumstance or proceeding unless plaintiff shows there is complete identity of parties and causes of action to obtain the strictly construed exception.

Avoid Confusion with Long-Arm Jurisdiction Under Fla. Stat. § 48.193 with Vesting of Personal Jurisdiction Through Non-Immune Service of Due Process

It should be beyond peradventure that a trial court’s jurisdiction over a person does not vest until the plaintiff performs a valid, perfect, and non-immune service of process. Shurman, 795 So. 2d at 953 (holding the fundamental purpose of service of process is to vest jurisdiction in the trial court entertaining the controversy); Klinger v. Milton Holding Co., 136 Fla. 50, 61 (Fla. 1938) (where the court has no jurisdiction over person of a defendant by reason of a defective service, any action of the court against defendant based upon such service is without authority of law); Ingenieria Y Exportacion De Tecnologia S.L. v. Freytech, Inc., 210 So. 3d 211, 212 (Fla. 3d DCA 2016) (strict construction/compliance with statutes on service of process required; only by properly served summons does court acquire jurisdiction over defendant); Opella v. Bayview Loan Servicing, LLC, 48 So. 3d 185, 187 (Fla. 3d DCA 2010) (holding judgment void for lack of proper service of process); Alvarado v. Cisneros, 919 So. 2d 585, 588 (Fla. 3d DCA 2006) (holding judgment entered without valid service of process is void for lack of personal jurisdiction, attackable at any time); Honegger v. Coastal Fertilizer & Supply, Inc., 712 So. 2d 1161, 1162 (Fla. 2d DCA 1998) (holding constructive service was insufficient to confer in personam jurisdiction over nonresident as necessary for judgment of money damages).

It should also be beyond peradventure that vesting of jurisdiction through service of process is distinct from long-arm jurisdiction under Florida Statutes § 48.193—both long-arm jurisdiction and proper service of process are required to confer and vest jurisdiction over a non-resident’s person. Bedford, 484 So. 2d at 1227 (Fla. 1986) (holding personal service upon nonresident defendant was only way to obtain valid enforceable in personam judgment against nonresident defendant, despite long-arm jurisdiction and actual notice); Drury v. Nat’l Auto Lenders, Inc., 83 So. 3d 951, 952–53 (Fla. 3d DCA 2012) (holding service by publication to enforce a personal guaranty is not statutorily authorized); Gulf Atlantic Transp. Co. v. Offshore Tugs, Inc., 740 F. Supp. 823 (M.D. Fla. 1990) (holding jurisdiction could not have been acquired over nonresident defendants under Fla. Stat. § 48.193 where defendants were not personally served); Jackson v. Cedars of Lebanon Hosp. Corp., 399 So. 2d 542, 543 (Fla. 3d DCA 1981) (holding jurisdictional requirement of service of process, under the long-arm statute or otherwise, was not waived by mere filing of a motion); Kimbrough v. Rowe, 479 So. 2d 867, 868 (Fla. 5th DCA 1985) (holding mere fact that personal service was made on nonresident defendant in his home state was insufficient to subject him to jurisdiction under long-arm statute); § 48.193(3), Fla. Stat. (2016) (statute itself contemplates that service of process is necessary in every case to vest jurisdiction).

Nevertheless, some litigants adopt flawed argument that the trial court’s jurisdiction automatically vests under Florida Statutes § 48.193 (long-arm jurisdiction) regardless of immunity from service of process. Yet, immunity invalidates service of process at proceedings and thus the trial court’s jurisdiction does not vest over the witness individually. See supra.

If There Is an Appeal, Remember the Standards of Review

A trial court’s ruling on a motion to quash service of process consists of a question of law subject to a de novo standard of review. Mecca Multimedia, Inc. v. Kurzbard, 954 So. 2d 1179, 1181 (Fla. 3d DCA 2007) (reversing order denying motion to quash and dismiss). A trial court’s ruling imposing an award of fees as sanctions is subject to a de novo standard of review to the extent that it is based on an issue of law or interpretation of statute. Global Xtreme, Inc. v. Advanced Aircraft Ctr., Inc., 122 So. 2d 487, 490 (Fla. 3d DCA 2013) (reversing sanctions order on non-compliance with frivolous filings statute). The appellate court may treat an appeal of orders entered simultaneously with a motion to quash as a petition for writ of prohibition for lack of jurisdiction. Fla. R. App. P. 9.040(c). Prohibition applies where the trial court has exceeded its jurisdiction as to the order under review. Renovaship, Inc. v. Quatremain, 208 So. 3d 280, 287 and n.1 (Fla. 3d DCA 2016); Weiss v. Berkett, 949 So. 2d 1092, 1092 (Fla. 3d DCA 2007). Thus, de novo review applies as the trial court’s rulings are on law and jurisdiction.

If you have any questions as to the non-resident witness immunity rule, witness testimony, depositions, or service of process and summonses, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

Bernhard Law Firm

 

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