final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County Lower Tribunal No. 13-25126, Gisela
Cardonne Ely, Judge, and Dennis J. Murphy, Judge.
Burlington, P.L., and David A. Freedman and Frances E. Blake,
E. Acuña, P.A., and Albert E. Acuña, for
LAGOA, SCALES, and LUCK, JJ.
Brown ("Brown"), a non-Florida resident, appeals
from the trial court's order dismissing BNB Investment
Holdings, LLC's ("BNB") Amended Verified
Complaint (the "Amended Complaint") for lack of
personal jurisdiction. Specifically, Brown appeals that
portion of the order which, after dismissing the Amended
Complaint for lack of personal jurisdiction, directed him to
respond to BNB's second amended complaint within fifteen
days of its filing without requiring BNB to effectuate new
service of process upon Brown. For the reasons discussed
below, we reverse.
FACTUAL AND PROCEDURAL HISTORY
October 16, 2013, BNB filed its Amended Complaint against
several defendants including Brown. In May 2014, BNB obtained
a default judgment against Brown. After his bank account was
garnished, Brown moved to vacate the default judgment on the
basis that he had never been served with process of service.
At the conclusion of a January 17, 2017, evidentiary hearing,
where Brown personally appeared and testified, the trial
court vacated the default judgment for lack of service of the
Amended Complaint on Brown. At the conclusion of that
hearing, BNB served Brown with the Amended Complaint while
Brown was at the courthouse.
February 6, 2017, Brown moved to quash BNB's service of
process and to dismiss the Amended Complaint for lack of
personal jurisdiction. In response to Brown's motion to
quash, BNB purportedly effectuated substitute service of
process on April 29, 2017, by serving the Amended Complaint
on Kevin Hsu ("Hsu"), an individual residing at a
San Francisco address associated with Brown.
19, 2017, Brown filed an amended motion to dismiss pursuant
to Florida Rule of Civil Procedure 1.140(b)(2), arguing that
dismissal was proper because the Amended Complaint: (1)
alleged no jurisdictional facts satisfying Florida's
long-arm statute; (2) failed to track the language in the
long-arm statute; and (3) failed to allege minimum contacts
by Brown that satisfied constitutional due process
requirements. On July 12, 2017, the trial court held a
hearing on Brown's motion to dismiss for lack of personal
jurisdiction and orally granted Brown's motion to
dismiss. The trial court allowed BNB thirty days to amend its
Amended Complaint to remedy the jurisdictional deficiencies
and further ordered Brown to file a responsive pleading to
that second amended complaint within fifteen days after
did not contemporaneously object to the trial court's
oral ruling at the hearing, but on July 19, 2017, prior to
the trial court entering a written order, Brown sent a letter
to the trial court, along with a proposed written order,
stating that because the court granted Brown's motion to
dismiss for lack of personal jurisdiction, it seemed
"contradictory for Mr. Brown to be required to file a
responsive pleading until he has been properly served."
Brown's proposed written order to the trial court,
therefore, omitted the requirement that Brown file a
responsive pleading within fifteen days of BNB's second
amended complaint. In response, BNB sent a letter to the
trial court arguing that Brown's motion to dismiss only
attacked the sufficiency of its Amended Complaint and that
the trial court did not substantively discuss or rule upon
whether the service upon Brown was proper.
August 3, 2017, the successor trial court judge entered
BNB's proposed written order requiring Brown to file a
response to BNB's second amended complaint. On August 10,
2017, BNB filed its Second Amended Verified Complaint (the
"Second Amended Complaint"). BNB sent a copy of the
Second Amended Complaint to Brown accompanied with a request
for Brown ...