Florida's third species of jurisdiction.

• Author: Stephens, Scott

The most common (1) use of the word "jurisdiction" in Florida practice is curiously lacking in definition. Trial courts "lack jurisdiction" until proper pleadings are filed. (2) They exceed "jurisdictional" limits if they order relief outside the scope of the pleadings. (3) They lose ("are divested of ") jurisdiction if a voluntary dismissal is taken or when a judgment is entered, unless "jurisdiction" is specifically reserved. (4) These notions of "jurisdiction" depend on a case's procedural posture, and thus cannot be subject matter jurisdiction (SMJ) or jurisdiction in personam. Subject matter jurisdiction is the power allocated to a court by constitution or statute, (5) a fixture of the legal landscape that procedural events in a specific case are unlikely to change. Personal jurisdiction depends on a person's contacts with the forum state, typically not on the pleadings. (6) The concept of "jurisdiction" that is dependent on pleadings or other procedural events, therefore, must constitute a distinct third species of jurisdiction, which could be called procedural jurisdiction, or more colorfully, "greenlight jurisdiction." Despite its importance as a principle of procedural law, its actual meaning and legal significance have yet to be confronted conclusively. Understanding the different types of jurisdiction is crucial to the practitioner because each has "its own legal significance." (7)

This article finds a logical consistency in the law of "jurisdiction" in the cases despite significant confusion over the years. It observes that the bare word "jurisdiction" has been used to mean a court's exclusive authority to enter orders in a particular case at a particular time. It is a legal conclusion dependent on the presence of three elements--the familiar requirements of subject matter and personal jurisdiction must, of course, be present in every case, but in addition the court's legal authority must be activated according to procedural requirements of pleading and process. The contention that a trial court lacks "jurisdiction" can be made if any one of the three elements is missing, but in practice "jurisdictional" attacks rarely implicate subject matter jurisdiction or personal jurisdiction. When they do, they say so explicitly. When "jurisdiction" is used without identifying the specific jurisdictional concept being employed, it almost always refers to the third, procedural element of jurisdiction.

Attaining consistency is an accomplishment, because the forces for confusion have been remarkably tenacious. Because a failure of subject matter jurisdiction trumps res judicata and all other timeliness requirements, litigants with unpreserved arguments naturally seek to cast them as "jurisdictional," either by expanding the concept of subject matter jurisdiction explicitly, or by confusing it with other concepts of jurisdiction. The venerable case of Lovett v. Lovett, 112 So. 768, 776 (Fla. 1927), offered hope of rescue to the untimely for many years.

Lovett stated that "jurisdiction" in Florida was a legal conclusion dependent on three elements, not just two. It intimated that "jurisdiction" derives from--indeed would appear to be shorthand for--the traditional recitation that the court "has jurisdiction of the subject-matter and the parties." Under Lovett, even when a court undoubtedly had subject matter jurisdiction and jurisdiction over the persons involved, it did not have "jurisdiction of the subject-matter and the parties" unless the pleadings had properly "invoked" the court's power. For those propositions, Lovett remains good law today (indeed they constitute the thesis of this article), but the court went further. It permitted the appellants to challenge the trial court judgment based on a pleading defect not raised below on the theory that the pleading defect was "jurisdictional." How a pleading defect could change the type of case before the court, thus defeating its subject matter jurisdiction, the court did not say.

It has taken 80 years, and the process remains incomplete, but the confusion wrought by Lovett is waning. The Florida Supreme Court has restored the original meaning of subject matter jurisdiction, and the district courts for the most part decline to extend subject matter jurisdiction treatment to unpreserved "jurisdictional" defects arising from procedural events. In the process, the cases have implicitly fleshed out a law of jurisdiction which requires three elements, and separately identifies the legal significance of each one.

The practitioner needs to be aware that the legal consequence of a jurisdictional error depends on which element is involved and when the error was first raised. Arguing that a court lacks "jurisdiction" is meaningless if one is not prepared to identify the specific class of jurisdictional defect and the applicable legal result. Expecting all errors of "jurisdiction" to be treated the same is a recipe for failure.

The legally significant difference between three jurisdictional elements is the degree of waivability. The requirement of subject matter jurisdiction is never waivable; judgments rendered without SMJ are void ab initio, and can be successfully attacked at any time. Judgments unsupported by in personam jurisdiction, by contrast, are not inherently void. Instead, they are voidable by the specific persons affected, and the objection is waived if not asserted at the first opportunity. (8) The waivability of defects of procedural jurisdiction is more controversial, with some ancient cases and a few modern ones holding them unwaivable, with the bulk of more recent authority holding them waived if not timely raised. Even though the word "jurisdiction" has traditionally been attached to them, they remain principles of procedural law, and should be treated accordingly.

The primary thesis of this article is that there are three elements to the legal conclusion that a Florida court has "jurisdiction" and the legal consequence of a defect of jurisdiction depends on which element is defective and when it was raised. An important corollary is that subject matter jurisdiction generally cannot be created, suspended, or terminated by procedural events in a case, and any "jurisdiction" that can be so intermittent must be procedural and hence waivable. Whether a court has power to hear and decide a given type of case is a different question from whether the case itself is in a procedural posture that authorizes the court to proceed. The following sections explain and support this conclusion in greater depth, first defining procedural jurisdiction, and then articulating its logical separation from subject matter jurisdiction. The concluding sections show how recent cases have acknowledged the existence of a third element of jurisdictional analysis in Florida.

Three Species of Jurisdiction

Each of the three concepts of jurisdiction has its distinct legal source, functional definition, and set of legal consequences. The first two are well-defined; the third is familiar, but so far lacking in systematic definition.

The first and most fundamental requirement is subject matter jurisdiction (SMJ). A court's power derives from either constitutional or statutory provisions specifying the class of cases the court is granted authority to hear. (9) It has SMJ only over those types of cases, and may not proceed in any fashion in any other type of case. (10) A court proceeding in absence of SMJ is subject to writ of prohibition, and an order rendered without SMJ is unwaivably void. As a practical matter, this means the order has no res judicata effect, and is not entitled to full faith and credit. The error can successfully be raised for the first time on appeal or on collateral attack years later. The requirement of subject matter jurisdiction is so fundamental that it prevails over the otherwise essential (11) principle of finality of judgments.

The second jurisdictional requirement is a reasonable connection between the court and the parties (or properties) involved. A court may not enter orders affecting individuals unless they have some legally meaningful contact with the territorial extent of the court's authority, known as jurisdiction over the person (JOP). (12) While a defect of JOP does not stop a court from proceeding altogether, it has no power to bind a party over whom it lacks personal jurisdiction. 13 An order lacking JOP is not inherently void, but rather voidable, and the error can be waived if not asserted at the first opportunity.

Procedural jurisdiction has nothing to do with the scope of the court's constitutional or statutory power, or the status of the parties. Instead, it is a matter of compliance with applicable procedural principles, some codified in rules, but more often products of case law. These principles can correctly be characterized as "jurisdictional," in that they address a particular court's authority to proceed in a specific direction at a defined time. Even when a court has subject matter jurisdiction and personal jurisdiction--hence the power to proceed--the procedural equivalents of traffic signals regulate when it is permissible to proceed. For example, a case must be commenced by pleadings before a court can enter an order. Until that occurs, the court is like a motorist facing a red light: Proceeding is physically possible but is deterred by the prospect of undesirable consequences. The light turns green once proper pleadings are filed, but directional signals (rules confining actions to the scope of the pleadings) still limit where the court may permissibly go. When a final judgment is entered, the court faces another red signal.

Whether these procedural rules should be called "jurisdictional" is questionable, but that use of the term is firmly entrenched in the tradition of Florida law and it is semantically defensible. The term "jurisdiction" means a court's authority to hear and decide a dispute, and procedural...