MASSIMO MARINONI AND EUDES MARINONI v. FITESA NAOTECIDOS S.A.

• Court: District Court of Appeal of Florida
• Decided: May 11, 2022
• Docket: 21-2295
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 11, 2022. Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D21-2295, 3D21-2361 Lower Tribunal No. 15-14286 ________________

Dexx Medical Industries, CA, Massimo Marinoni and Eudes Marinoni, Appellants,

vs.

Fitesa Naotecidos S.A., Appellee.

Appeals from non-final orders from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

Kula & Associates, P.A., Elliot B. Kula and W. Aaron Daniel, for appellants.

Damian & Valori LLP, Peter F. Valori and Johnny P. ElHachem, for appellee.

Before LOGUE, HENDON and GORDO, JJ.

GORDO, J. In these consolidated cases, Dexx Medical Industries, CA, (“Dexx”),

Massimo Marinoni and Eudes Marinoni (collectively, “the Marinonis”) appeal

two non-final orders in favor of Fitesa Naotecidos S.A. (“Fitesa”) asserting

they are appealable pursuant to Florida Rule of Appellate Procedure

9.130(a)(3)(C)(i). We find the non-final orders did not determine jurisdiction

of the person as required by rule 9.130(a)(3)(C)(i), and therefore dismiss the

appeals for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

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.

2 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,

3 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 non-

reviewable 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

4 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. 5 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).”).

Dismissed.