Mirna J. DeBlois, etc. v. Jose Dominguez

• Court: District Court of Appeal of Florida
• Decided: September 13, 2023
• Docket: 2023-1186
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed September 13, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1186 Lower Tribunal No. 20-8626 ________________

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

vs.

Jose Dominguez, Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Carlos Lopez, Judge.

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 Mirna 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

1 See Fla. R. Civ. P. 1.260(a) (governing substitution upon the death of a party); Scutieri v. Miller, 584 So. 2d 15, 17 (Fla. 3d DCA 1991) (“[T]he suggestion of death was filed by defendant’s attorney, rather than defendant’s personal representative. . . . The text of Rule 1.260(a)(1) does not contain a limitation on who may file a suggestion of death. Since there is a public interest in the prompt resolution of decedents’ estates, we conclude that such a limitation should not be read into the Rule.”).

2 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

2 Rule 1.260(a)(1) provides:

(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be filed and served on all parties as provided in Florida Rule of General Practice and Judicial Administration 2.516 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after a statement noting the death is filed and served on all parties as provided in Rule of General Practice and Judicial Administration 2.516, the action shall be dismissed as to the deceased party.

(Emphasis added). 3 See Martin v. Hacsi, 909 So. 2d 935, 937 (Fla. 5th DCA 2005) (“[I]f the attorney for a party, who dies during the course of litigation, were not allowed to file a motion to dismiss in the absence of a timely motion for substitution of a party until a party had been substituted, then dismissal could never occur and the rule would be meaningless.”).

3 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

4 While Personal Representatives’ notice of appeal of this order indicates that the challenged order is “nonfinal,” it identifies no basis for this Court’s jurisdiction.

4 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

5 (“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

6 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

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 jurisprudence that does squarely address the

5 The general rule is that “[i]ssues, even jurisdictional issues, lurking in the record but not addressed do not bind the court in later cases.” R.R. Donnelley & Sons Co. v. FTC, 931 F.2d 430, 433 (7th Cir. 1991); see also Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996) ( “[W]e have repeatedly held that the existence of unaddressed jurisdictional defects has no precedential effect.”); Kershaw v. Shalala, 9 F.3d 11, 13 n.3 (5th Cir. 1993) (noting that the Court’s exercise of jurisdiction in a prior decision did not “constitute a binding precedent . . . because the jurisdictional issue was neither raised by the parties nor addressed by the Court”); Brooks v. Flagg Bros., Inc., 553 F.2d 764, 774 (2d Cir. 1977) (observing that “such a sub silentio jurisdictional ruling is not binding precedent in this court . . . .”), rev’d on other grounds, 436 U.S. 149 (1978); Shattuck v. Hoegl, 523 F.2d 509,

7 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”

514 n.8 (2d Cir. 1975) (“[T]he precedential value of a per curiam exercise of jurisdiction noting an affirmance in open court is at best doubtful where the issue of jurisdiction apparently was not raised but passed Sub silentio.”); Ass’n of Westinghouse Salaried Emps. v. Westinghouse Elec. Corp., 210 F.2d 623, 628-29 (3d Cir. 1954) (noting that where “the question of federal jurisdiction was passed sub silentio” it does not amount to “binding precedent on the issue of jurisdiction”), aff'd, 348 U.S. 437 (1955). Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986) (“[D]ecisions that fail to remark a jurisdictional issue are not assumed to have resolved it by their silence.”); Cf; Dep’t of Children & Families v. Feliciano, 259 So. 3d 957, 972 (Fla. 3d DCA 2018) (Luck, J., concurring in result) (“[A] ruling on the merits of a case in which the court’s jurisdiction wasn’t challenged or assumed doesn’t constitute precedent on the question whether the court has jurisdiction over such a case.” (quoting Bryan A. Garner et al., The Law of Judicial Precedent 121 (Thomas Reuters, 2016))).

8 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

6 See, e.g. Truist Bank, 307 So. 3d at 826 (“[W]e are reminded that, when deciding whether we have appellate jurisdiction to review a non-final order under Florida Rule of Appellate Procedure 9.130(a)(3), we narrowly construe the rule and its enumerated categories of orders subject to interlocutory appellate review.”); Jenne v. Maranto, 825 So. 2d 409, 413 (Fla. 4th DCA 2002) (“The enumerated categories of permissible nonfinal review stated in rule 9.130 must be limited to their plain meaning. The rule does not authorize judges to enlarge its provisions to permit review of nonfinal orders not specified within its provisions.”) (citation omitted).

9 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

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

7 Of course, had the trial court granted Deblois’s dismissal motion and dismissed the action with prejudice, such an order would most likely have been an appealable final order over which we presumably would have had appellate jurisdiction to review. See Feller v. R.J. Reynolds Tobacco Co., 240 So. 3d 61, 63 (Fla. 3d DCA 2018). 8 We note that, in a somewhat similar context, where the decedent co- defendant had died intestate, the Fourth District determined that it lacked appellate jurisdiction under rule 9.130 to review the trial court’s non-final order denying the plaintiffs’ motion that sought to substitute the decedent with a representative to be appointed by the trial court. See Gomez v. Fradin, 199 So. 3d 554, 555 (Fla. 4th DCA 2016) (dismissing the appeal and determining that the appellate court would not treat the appeal as a petition for writ of certiorari because the proper remedy for appellants, as unliquidated creditors of the deceased’s estate, was to petition the probate court for administration).

10 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 plaintiff’s widow to

comply with Florida Rule of Civil Procedure 1.260”); Olympus Ins. Co. v.

Hernandez, 171 So. 3d 831, 831 (Fla. 4th DCA 2015) (granting certiorari and

quashing a trial court order that “granted the motion for substitution of party

and denied the motion to dismiss”); but see Gomez, 199 So. 3d at 555

(declining to treat non-final appeal as a certiorari petition). Appropriate

certiorari briefing, though, is necessary for this Court to determine whether

certiorari lies in this case to afford Personal Representatives relief from the

challenged order.

Indeed, at this juncture, this Court cannot determine (i) whether the

trial court departed from the essential requirements of law by entering the

challenged order, or (ii) if such a departure did occur, whether the resulting

injury to Personal Representatives is irreparable and cannot be remedied on

11 plenary appeal. 9 Thus, if Personal Representatives wish for this Court to

consider whether Personal Representatives are entitled to certiorari relief,

then, within thirty days of the issuance of this opinion, Personal

Representatives shall file a supplemental brief, not to exceed twenty pages

in length, arguing why they are entitled to certiorari relief. After Personal

Representatives file their supplemental brief, Dominguez shall then have

twenty days thereafter to file a response brief that also shall not exceed

twenty pages in length. Within ten days thereafter, Personal Representatives

may, but are not required to, file a reply brief that shall not exceed ten pages

in length. 10

So ordered.

9 See Stockinger v. Zeilberger, 152 So. 3d 71, 73 (Fla. 3d DCA 2014) (“To invoke this court’s power to issue a writ of certiorari, a petitioner for the writ must show that the challenged non-final order (1) departs from the essential requirements of law, (2) results in material injury for the remainder of the case, and (3) such injury is incapable of correction on postjudgment appeal. These last two elements are sometimes referred to as irreparable harm. The establishment of irreparable harm is a condition precedent to invoking certiorari jurisdiction.”) (citations omitted); see also Damsky v. Univ. of Miami, 152 So. 3d 789, 792 (Fla. 3d DCA 2014) (“Unless the petitioner establishes irreparable harm, the court must dismiss the petition for lack of jurisdiction.”). 10 We express no opinion as to whether Personal Representatives are entitled to certiorari relief.