Deblois v. Dominguez

390 So.3d 51

Mirna J. DEBLOIS, etc., et al., Appellants,

v.Jose DOMINGUEZ, Appellee.

No. 3D23-1186

District Court of Appeal of Florida, Third District.

Opinion Filed September 13, 2023

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Carlos Lopez, Judge. Lower Tribunal No. 20-8626

Fitzsimmons, Hewitt, Stranzl & Spaid, P.A., and Nicolas E. Ferreiro, Kevin J. Fitzsimmons and Benjamin S. Stranzl (Tampa), for appellants.

Douglas H. Stein, P.A., and Douglas H. Stein, for appellee.

Before SCALES, HENDON and GORDO, JJ.

ON MOTION TO DISMISS APPEAL

SCALES, J.

In this personal injury action against Dennis Deblois ("Deblois"), appellants Mima J. Deblois and Carolyn D. Johnson, as the co-personal representatives of Deblois’s estate ("Personal Representatives"), seek appellate review of a non-final, trial court order granting appellee, plaintiff below, Jose Dominguez’s late-filed motion to amend his complaint to substitute Personal Representatives for Deblois as party defendants. While we lack appellate jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)i to review the challenged order, we treat the appeal as a petition for writ of certiorari under Florida Rule of Appellate Procedure 9.100 and, as more specifically outlined below, direct the parties to file supplemental briefing under this case number.

I. Relevant Background and Proceedings Below

In April 2020, Dominguez filed this personal injury action against Deblois. On December 1, 2022, pursuant to Florida Rule of Civil Procedure 1.260(a)(1), Deblois’s attorney filed and served a notice in this action that Deblois had died.¹ Under the rule, Dominguez had ninety days after this notice in which to substitute Deblois’s successors or representatives for Deblois as party defendants.² On March 3, 2023, after the expiration of ninety days and without Dominguez having filed the requisite substitution motion, Deblois’s attorney, acting on behalf of the deceased Deblois,³ filed a motion to dismiss Dominguez’s lawsuit. That same day, Dominguez filed a motion seeking leave both to substitute Personal Representatives as the party defendants and to file an amended complaint against them. Dominguez attached a copy of his proposed amended complaint to his motion.

The trial court conducted a hearing on the competing motions and, on June 2, 2023, entered the challenged order that: (i) denied Deblois’s motion to dismiss the complaint upon finding excusable neglect for Dominguez’s failure to timely file his substitution motion; and (ii) granted Dominguez’s late-filed motion to substitute Personal Representatives as party defendants and to file the amended complaint against them. Personal Representatives seek appellate review of the trial court’s June 2, 2023 order.⁴

II. Dominguez’s motion to dismiss, Personal Representatives’ response, and review of this District’s case law

After Personal Representatives filed their initial brief in this Court, Dominguez moved to dismiss Personal Representatives’ appeal, arguing that the challenged order is a non-final, non-appealable order. Personal Representatives responded by asserting that the challenged order is reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)i as an appealable non-final order that "determine[s] … the jurisdiction of the person." As support, Personal Representatives cite to this Court's decisions in Mutual of Omaha Insurance Co. v. White, 554 So. 2d 12 (Fla. 3d DCA 1989), and Canter v. Hyman, 363 So. 2d 29 (Fla. 3d DCA 1978). In our effort to discern whether rule 9.130(a)(3)(C)i provides a basis for this Court to exercise appellate jurisdiction to review the challenged non-final order, we analyze each case below.

A. Canter

In Canter, the defendant sought appellate review in this Court of "the trial court’s order substituting personal representative as plaintiff and denying [the defendant’s] motion to dismiss the cause of action pursuant to Florida Rule of Civil Procedure 1.260." 363 So. 2d at 30. Without citing any appellate rule or stating the basis for this Court’s jurisdiction, the Canter court engaged in plenary appellate review of the interlocutory order and reversed the trial court’s order with remand directions. Id. The facts in Canter indicate that the defendant filed the notice of appeal either immediately prior to or immediately following the Florida Supreme Court’s adoption of the 1977 revisions of the Florida Rules of Appellate Procedure that, effective March 1, 1978, replaced former rule 4.2 with rule 9.130. See In re Proposed Fla. Appellate Rules, 351 So. 2d 981 (Fla. 1977). It is unclear, though, what rule of appellate procedure (i.e., former rule 4.2 or the newly enacted rule 9.130) applied to the appellate proceedings in Canter. See Fla. R. App. P. 9.010 ("These rules … shall take effect at 12:01 a.m. on March 1, 1978. They shall govern all proceedings commenced on or after that date in … the district court of appeal …. [A]ny appellate proceeding commenced before March 1, 1978, shall continue to its conclusion in the court in which it is then pending in accordance with the Florida Appellate Rules, 1962 Amendment.").

Thus, not only does Canter not squarely address the basis upon which we exercised jurisdiction in that case, but the opinion is also unclear as to what, if any, appellate rule was invoked for us to exercise appellate jurisdiction to review the non-final order challenged in the case.

B. Mutual of Omaha

In Mutual of Omaha, the defendant sought "review of orders granting a motion to substitute the personal representative in place of the deceased plaintiff, and denying defendant’s motion to dismiss under Rule 1.260(a), Florida Rule of Civil Procedure." 554 So. 2d at 13. The Mutual of Ohama decision reflects that the defendant not only sought appellate review pursuant to Canter, but also sought review by petitions for writ of certiorari and prohibition. Id. at 13, n.1. Without stating the basis for this Court’s jurisdiction, the Mutual of Omaha court - seemingly because the defendant was not entitled to relief regardless of how the Court treated the appellate proceedings - denied relief on all three bases. Id. That is, this Court both affirmed the challenged orders and denied the petitions for prohibition and certiorari. Id. The Mutual of Omaha decision did not squarely address whether this Court, under rule 9.130(a)(3), will engage in plenary review of an interlocutory order that, premised on compliance with rule 1.260(a), denies a party’s motion to dismiss a complaint and/or grants a motion to substitute party.

III. Analysis

A. Appellate jurisdiction under rule 9.130(a)(3)(C)i

[1, 2] Because our Canter and Mutual of Omaha decisions failed to directly address whether, and on what basis, this Court had appellate jurisdiction to review the non-final orders challenged in those cases, they are of no significant precedential value to this Court in adjudicating Dominguez’s motion.⁵ But this Court’s ju- risprudence that does squarely address the parameters of our appellate jurisdiction under rule 9.130 provides us with clear guidance such that we have little difficulty concluding that the challenged order is not reviewable under rule 9.130(a)(3)(C)i.

The challenged order denied Deblois’s dismissal motion that was premised entirely on Dominguez’s failure to comply with rule 1.260(a). The order also granted Dominguez’s late-filed motion to substitute Personal Representatives as party defendants and allowed the filing of Dominguez’s amended complaint against them. The challenged order, though, did not mention, much less decide, whether the trial court had "personal jurisdiction" over Personal Representatives, and it certainly did not make the "determination" which we have held is required for us to exercise jurisdiction to review an order under rule 9.130(a)(3)(C)i. See Skybus Jet Cargo, Inc. v. Aca Int’l, LLC, 365 So. 3d 467, 467 n.1 (Fla. 3d DCA 2023) ("In determining whether we have appellate jurisdiction to review a nonfinal order under rule 9.130(a)(3), ‘this Court looks to the four corners of the challenged order[.]’ " (quoting Truist Bank v. De Posada, 307 So. 3d 824, 826 (Fla. 3d DCA 2020))); Cole v. Posada, 555 So. 2d 367, 368 (Fla. 3d DCA 1989) ("We conclude the trial court order denying appellants’ motions to dismiss is a nonappealable, non-final order because it does not relate to a true ‘jurisdiction of the person’ issue. 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."). Hence, consistent with modern rule 9.130(a)(3) jurisprudence,⁶ we conclude that rule 9.130(a)(3)(C)i does not provide us with appellate jurisdiction to review the challenged non-final order.⁷,⁸

B. Certiorari jurisdiction

[3] Although we lack appellate jurisdiction over the challenged non-final order, our inquiry is not at an end as to whether this order is otherwise reviewable. Recognizing that more recent Florida appellate court decisions have concluded that non-final orders similar to the one challenged here are reviewable by petition for common law certiorari, we likewise treat the instant appeal as a petition for writ of certiorari. See Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy."); Kash N’ Karry Food Stores, Inc. v. Smart, 814 So. 2d 530, 532 (Fla. 2d DCA 2002) ("Orders effectively denying motions to dismiss for failure to substitute party have been reviewed by common law certiorari."); see also R.J. Reynolds Tobacco Co. v. Lacey, 276 So. 3d 103, 104 (Fla. 3d DCA 2019) (citing Kash N’ Karry Food Stores with approval, and denying a petition for writ of certiorari directed at an order denying a motion to dismiss a lawsuit "for failure by the...