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Date: 07-15-2022
Case Style:
DEXX MEDICAL INDUSTRIES, CA, etc., vs FITESA NAOTECIDOS S.A.
Case Number: Nos. 3D21-2295, 3D21-2361 Lower Tribunal No. 15-14286
Judge:
Monica Gordo
Court:
Third District Court of Appeal State of Florida
On Appeal From The Circuit Court for Miami-Dade County
David C. Miller
Judge
Plaintiff's Attorney:
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Defendant's Attorney: Damian & Valori LLP, Peter F. Valori and Johnny P. ElHachem
Description:
Miami, Florida - Business Law lawyer represented Appellants with seeking to recover payment due for products sold.
Fitesa filed a complaint against Dexx and the Marinonis seeking to
recover payment due for products sold by Fitesa. The operative complaint
asserted Dexx and the Marinonis were subject to both general and personal
jurisdiction because they were engaged in substantial activity within Florida
and committed a tortious act within the state.
Fitesa served Dexx and the Marinonis via substitute service of process
by leaving a copy of the amended complaint and summons with the
Marinonis’ daughter at an Aventura condominium owned by the Marinonis.
The Marinonis moved to quash service of process and filed sworn affidavits
asserting insufficiency of service of process. The Marinonis averred they
reside in Venezuela, only travel to Florida for vacation and claimed copies of
the summons and complaint were not served at their usual place of abode.
3
Fitesa filed a motion to strike Dexx’s and the Marinonis’ pleadings and
defenses or alternatively strike the Marinonis affidavits, arguing they
knowingly committed fraud on the court by making false statements in their
sworn affidavits. Specifically, Fitesa alleged it was fraud upon the court to
swear they only vacation in Florida, when they have been managing their
business and raising their daughter in Florida for over five years.
The trial court conducted an evidentiary hearing on Fitesa’s motion to
strike. The Marinonis’ each testified under oath and were cross-examined.
Fitesa provided a slew of evidence, including that the Marinonis’ daughter
had attended school in Florida since she was about 13 years old and
continuously since 2015, the Marinonis own a condominium in Florida, they
obtained and used Florida driver’s licenses, obtained and used multiple
credit cards and personal checking accounts in Florida, and their immigration
status in the United States was based on sworn E-2 visa applications
describing duties and activities that required them to manage and direct daily
operations of the Marinonis’ yogurt shop in Aventura, Florida.
At the conclusion of the hearing, the trial court found by clear and
convincing evidence that Dexx and the Marinonis willfully and consciously
set into motion an unconscionable scheme to perpetuate fraud on the court.
The trial court further found Dexx through its president, Massimo Marinoni,
4
and the Marinonis individually, intentionally filed false statements designed
to prevent the court from exercising jurisdiction and they pursued a course
of conduct that substantially interfered with the administration of justice.
These consolidated appeals followed.
LEGAL ANALYSIS
Our appellate jurisdiction to review non-final orders is limited to only
those orders specifically listed in rule 9.130(a)(3). See Keck v. Eminisor, 104
So. 3d 359, 363–64 (Fla. 2012). Dexx and the Marinonis rely on rule
9.130(a)(3)(C)(i) to vest this Court with jurisdiction to hear the otherwise nonreviewable interlocutory orders. Rule 9.130(a)(3)(C)(i) provides: “(3)
Appeals to the district courts of appeal of nonfinal orders are limited to those
that: (C) determine: (i) the jurisdiction of the person.” Fla. R. App. P.
9.130(a)(3)(C)(i) (emphasis added). “Under rule 9.130(a)(3)(C)(i),
‘jurisdiction of the person’ has been interpreted as referring to whether the
service of process was proper or whether the long-arm statute has been
correctly applied.” Cole v. Posada, 555 So. 2d 367, 368 (Fla. 3d DCA 1989);
see also Strauss v. Gorman, 471 So. 2d 1303, 1304 (Fla. 3d DCA 1985);
Page v. Ezell, 452 So. 2d 582, 583 (Fla. 3d DCA 1984).
A plain reading of rule 9.130(a)(3)(C)(i) demonstrates “the requirement
that we are to construe narrowly the categories of non-final orders subject to
5
interlocutory appeal.” Citizens Prop. Ins. Corp. v. Calonge, 246 So. 3d 447,
450 (Fla. 3d DCA 2018).1 The rule requires that an interlocutory order on
appeal must actually adjudicate and determine the personal jurisdiction
issue. “Nothing in the rule suggests that we may adduce or surmise such a
determination by reviewing documents in the record apart from the trial
court’s written order. Such a search for jurisdiction within the record would
lead to imprecise and even presumptuous conclusions.” Id. “The presence
of the word ‘determine’ in the rule is significant.” Id.
We find the challenged non-final orders do not make the necessary
determination of jurisdiction to trigger rule 9.130(a)(3)(C)(i)’s applicability.
The trial court explicitly provided it was not making such a determination
stating: “[t]he core issue here is whether the Marinonis filed statements under
oath that were patently and knowingly false that were made to prevent this
Court from exercising jurisdiction over this case and to prevent the
administration of justice and they should not have done so. The Court is not
1 In 2020, “the Florida Supreme Court created a new subdivision (F) to rule
9.130(a)(3) regarding several species of non-final order related to
governmental immunity that had previously been included under subdivision
9.130(a)(3)(C).” Truist Bank v. De Posada, 307 So. 3d 824, 826 (Fla. 3d
DCA 2020); In re Amends. to Fla. R. of App. P. 9.130, 289 So. 3d 866, 867
(Fla. 2020); Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1186 (Fla.
2020). “These recent Supreme Court cases, though, left intact the Florida
Supreme Court’s holding in Hastings, as well as the analysis we employed
in Pozos and Calonge.” Truist Bank, 307 So. 3d at 826.
6
making a finding on where the Marinonis’ regular place of abode is because
that is not the core issue here.”
It is clear the issue before the trial court was whether Dexx and the
Marinonis committed fraud by their sworn affidavits, not personal jurisdiction.
Thus, we dismiss the consolidated appeals for lack of jurisdiction. See Cole,
555 So. 2d at 368 (dismissing an appeal of a non-final order under rule
9.130(a)(3)(C)(i) because “[t]he question before the trial court was not
whether the court had the jurisdiction or power to bind the appellants to its
ultimate decision”).
We are bound by this Court’s precedent, the relevant rule and the four
corners of the trial court’s order when making a jurisdictional inquiry. We
therefore must dismiss a non-final order that does not determine the issue
of jurisdiction. See DCA of Hialeah, Inc. v. Lago Grande One Condo. Ass’n,
Inc., 559 So. 2d 1178, 1179 (Fla. 3d DCA 1990) (dismissing appeal because
“the issue before the trial court was the timeliness of the service of the initial
process and pleading and not whether the service of process was itself
valid”); Page, 452 So. 2d at 583 (“Without dispute, the instant appeal does
not involve service of process or long arm statute issues . . . we have no
jurisdiction to entertain this appeal under Fla. R. App. P. 9.130(a)(3)(C)(i).”)
Outcome: Dismissed
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