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Brown v. BNB Investment Holdings, LLC

Florida Court of Appeals, Third District

July 25, 2018

Thomas Brown, Appellant,
v.
BNB Investment Holdings, LLC, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An 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.

          Coffey Burlington, P.L., and David A. Freedman and Frances E. Blake, for appellant.

          Albert E. Acuña, P.A., and Albert E. Acuña, for appellee.

          Before LAGOA, SCALES, and LUCK, JJ.

          LAGOA, J.

         Thomas 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.[1]

         I. FACTUAL AND PROCEDURAL HISTORY

         On 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.

         On 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.

         On May 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 its filing.[2]

         Brown 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.[3]

         On 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.[4] 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 ...


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