Lorena Mariani De Landa v. Carlos Eduardo Chalbaud Briceno

• Court: District Court of Appeal of Florida
• Decided: January 15, 2025
• Docket: 3D2024-0543
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 15, 2025. Not final until disposition of timely filed motion for rehearing.

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No. 3D24-0543 Lower Tribunal No. 18-2461-CA-01 ________________

Lorena Mariani de Landa, Appellant,

vs.

Carlos Eduardo Chalbaud Briceno, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Charles Kenneth Johnson, Judge.

Quintero Broche P.A., and Jessica Fonseca-Nader, for appellant.

Cuevas, Garcia & Torres, P.A., and Ravindra Patel and Andrew Cuevas, for appellee.

Before SCALES, LINDSEY, and BOKOR, JJ.

SCALES, J. Appellant Lorena Mariani de Landa, plaintiff below, seeks appellate

review of a series of orders entered after the trial court, on August 11, 2023,

dismissed Appellant’s lawsuit “without prejudice” for failure to timely

effectuate service on appellee Carlos Eduardo Chalbaud Briceno, defendant

below. Appellant also seeks to appeal one interlocutory order entered before

the dismissal. Because the trial court’s jurisdiction ended with its dismissal

order, it was without jurisdiction to enter all subsequent orders; and because

the dismissal order was not timely appealed, we lack jurisdiction to review

the challenged interlocutory order. We, therefore, are compelled to dismiss

the appeal.

I. Relevant Background

In January 2018, Appellant initiated this action in the circuit court

alleging Appellee owed Appellant sums due on a promissory note. Appellant

encountered significant difficulty serving process on Appellee, a resident of

Venezuela with a business in Florida. In 2019, Appellant appeared to have

obtained constructive service on Appellee in Florida. Subsequently,

Appellant obtained a default judgment against Appellee; however, Appellee’s

counsel made a limited appearance to file a motion to quash service and

vacate the default judgment. After an evidentiary hearing, the trial court on

2 June 10, 2020, quashed service and vacated the default judgment (“the June

10, 2020 order”).

Appellant then hired a Venezuelan attorney to assist Appellant in

obtaining service on Appellee. After the Venezuelan attorney reported to

Appellant that service was obtained on April 16, 2021, in Venezuela,

Appellant filed a motion in the circuit court seeking an order finding that

service had been perfected in Venezuela (“Appellant’s service motion”).

Appellee’s counsel filed another limited appearance in the circuit court

to oppose Appellant’s service motion. The trial court conducted an

evidentiary hearing on Appellant’s service motion over four days1 and found

that Appellant had failed to obtain proper service on Appellant in Venezuela.

On August 11, 2023, the trial court entered a written order that denied

Appellant’s service motion (the “dismissal order”). The dismissal order also

contained the following adjudication of Appellant’s case: “This case is

Dismissed without prejudice.”

Appellant did not seek rehearing of the dismissal order, nor did she

appeal it. Rather, without leave of the court, Appellant filed an amended

complaint against Appellee, and then filed a motion for reissuance of the

1 The hearing commenced on April 21, 2023, continued on June 2nd and July 12th, and concluded on August 9, 2023.

3 summons (“Appellant’s summons motion”). Appellee, again through counsel

making a limited appearance, filed a motion to strike Appellant’s summons

motion and to declare Appellants’ amended complaint a nullity.

The trial court held a November 6, 2023 hearing, and on November 8,

2023, and again on November 9, 2023, entered orders denying Appellant’s

summons motion along with Appellant’s ore tenus motion for an extension of

time to effectuate service on Appellee. The purpose of the November 9th

order was to add language reiterating that the case was dismissed. Appellant

filed a motion for rehearing directed toward both the November 8th and 9th

orders, which the trial court denied via written order on March 21, 2024.

Appellant seeks to appeal the June 10, 2020 order, the November 8

and 9, 2023 orders, and the March 21, 2024 order denying rehearing.

II. Analysis

Appellee argues that we lack jurisdiction to adjudicate Appellant’s

appeal because the trial court was without jurisdiction to enter orders in this

case after the dismissal order.2 Appellant counters that the dismissal order

was nonfinal because it contained the words “without prejudice,” and

therefore, this Court has jurisdiction to review all the challenged orders.

2 Appellee does not address the June 10, 2020 order; see infra.

4 While the dismissal order states that the case was dismissed “without

prejudice,” this language does not subvert the finality of this order. The

language simply means that the dismissal was not on the merits and that

Appellant could therefore file a new lawsuit. Carnival Corp. v. Sargeant, 690

So. 2d 660, 661-62 (Fla. 3d DCA 1997) (“In order to avoid the consequences

of the dismissal, the Respondents were obligated to timely seek rehearing,

appeal or file a new lawsuit. They did none of these. As a result, the trial

court did not have jurisdiction[.]”); see Anderson v. Estate of Quintero, 374

So. 3d 67, 69-70 (Fla. 3d DCA 2022); see also Philip J. Padovano, Florida

Appellate Practice, § 23:2 (2024 ed.) (“An order dismissing an entire case

without prejudice is likely to be treated as final if it concludes the litigation in

that case and merely leaves open the right to assert the claim in another

case.”). Indeed, an order dismissing a case for failure to timely effectuate

service is a final order, even if it is without prejudice, because the dismissal

order ends the judicial labor in that action. See Carlton v. Wal-Mart Stores,

Inc., 621 So. 2d 451, 452 (Fla. 1st DCA 1993). Once the period elapses for

the filing of a rehearing motion, a trial court (subject to exceptions not

relevant in this case) loses jurisdiction to continue to adjudicate matters after

a final order has been entered. See Aurora Bank v. Cimbler, 166 So. 3d 921,

927 (Fla. 3d DCA 2015).

5 Thus, the trial court was without jurisdiction to enter either the

November 8th or November 9th order, and similarly lacked jurisdiction to

enter the March 21, 2024 order denying rehearing of the November 8th and

November 9th orders. We dismiss the appeal of these orders because we

lack appellate jurisdiction to undertake a plenary review of an order entered

by the trial court without jurisdiction. See McKenna v. Camino Real Vill.

Ass’n, 8 So. 3d 1172, 1174 (Fla. 4th DCA 2009).

Because the dismissal order was a final order, Appellant had thirty

days from August 11, 2023 to appeal it and any interlocutory orders

subsumed into it. See Fla. R. App. P. 9.110(b), (h). Because Appellant did

not timely appeal the dismissal order, we lack jurisdiction to review the June

10, 2020 order subsumed into the dismissal order and dismiss the appeal of

this order as well.

Appeal dismissed.