Lynette Deshotels v. Don Stewart, registered agent of Gulf View Beach Service and Sun Chasers Inc ResortQuest Northwest Florida, LLC and Wyndham Vacation Rentals North America, LLC

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D21-1170
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LYNETTE DESHOTELS,
Appellant,
v.
DON STEWART, registered agent
of Gulf View Beach Service and
SUN CHASERS, INC;
RESORTQUEST NORTHWEST
FLORIDA, LLC; and WYNDHAM
VACATION RENTALS NORTH
AMERICA, LLC,
Appellees.
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On appeal from the Circuit Court for Escambia County.
Linda L. Nobles, Judge.
September 14, 2022
PER CURIAM.
AFFIRMED.
ROBERTS and MAKAR, JJ., concur; TANENBAUM, J., dissents with
opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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TANENBAUM, J., dissenting.
Lynette Deshotels purports to directly appeal two court orders
granting motions to dismiss for her failure to effectuate timely
service of process under Florida Rule of Civil Procedure 1.070(j).
This rule allows dismissal of an action or of unserved defendants,
without prejudice, if service of process is not accomplished within
120 days. Each order dismissed two defendants from the suit. At
the prompting of this court (presumably), Deshotels obtained from
the trial court a mistitled “Final Judgment,” which simply
finalized the defendants’ dismissal “from this action without
prejudice.”
We have jurisdiction under the Florida Constitution to
conduct direct appellate review of two types of trial court orders:
“final judgments or orders,” and non-final orders as specified by
the Florida Supreme Court by rule. Art. V, § 4(b)(1), Fla. Const.
Dismissal of a complaint because a plaintiff fails to accomplish
service of process within 120 days is an administrative
mechanism. Totura & Co., Inc. v. Williams, 754 So. 2d 671, 678
(Fla. 2000) (explaining that “technical defenses” are not to be “the
centerpiece of the litigation,” obscuring or wholly overshadowing
the merits, and this “bedrock principle supports the proposition
that rule 1.070(j) is intended to be a case management tool, not an
additional statute of limitations cutting off liability of a tortfeasor”
(internal quotation and citation omitted)). The dismissal does not
operate as an adjudication on the merits. Fla. R. Civ. P. 1.070(j). If
there otherwise is no rule that lists this type of dismissal as an
appealable non-final order, please answer this: How possibly could
there be jurisdiction for this court to review the dismissal without
prejudice we find in this appeal as if it were a final order?
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Well, if I may speak frankly, a previous panel of this court got
it wrong when it concluded that we did. See Carlton v. Wal-Mart
Stores, Inc., 621 So. 2d 451, 452 (Fla. 1st DCA 1993). That panel
made a distinction between a dismissal “‘without prejudice’ to file
another, separate, [sic] action” and a dismissal “‘without prejudice’
to file an amended complaint in the first action.” Id. According to
that panel: “We believe that, because the dismissal ends the
judicial labor in the first action, the dismissal is sufficiently ‘final’
to permit an appeal.” Id. Really? When it comes to determining our
jurisdiction, this purely administrative distinction makes no
difference.
The panel in Carlton misconstrued the nature of such a “final”
order. Regardless of whether a plaintiff can re-file her complaint
under the same case number or must file the same complaint
under a new case number in the same court, one cannot fairly say
that the judicial labor has come to an end. Under the
circumstances of this case, where the defendants apparently were
not served with process, there has been no judicial labor at all to
adjudicate the rights of the parties. Because there has not been a
start to the judicial labor in the case, there could be no end. The
trial court’s orders on review decide nothing as between the
plaintiff and the defendants—no rights determined, no
controversy conclusively disposed of. There can be no res judicata;
there is no executable judgment and no preclusive order. There is
no order for us to review for whether it is supported by competent,
substantial evidence, and there is no legal question to review de
novo. The “final judgment” is not recordable in the official records,
and an affirmance here will do nothing to affect the legal
relationship between the parties. Making the purported exercise
of jurisdiction here particularly silly is this: The day after this
court’s affirmance becomes final and the mandate issues,
Deshotels can turn around and file a motion to reinstate the suit
under the same case number, or she could file the exact same suit
against the identical defendants in a new action.
Carlton also overlooks early decisions of the supreme court
that described the judicial action necessary to make an order
constitutionally “final” for appellate review. In one case, the court
explained that the judicial labor in a case is brought to an end by
an order when it “finally disposes of every question involved in the
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case. It certainly leaves nothing open for future decision, nor does
it contemplate that any further action is to be had in the cause,
other than to enforce the decree rendered.” State v. White, 24 So.
160, 165 (Fla. 1898); see also State Rd. Dep’t v. Crill, 128 So. 412,
414 (Fla. 1930) (defining “a final judgment, order, or decree” as
“one that puts an end to the action or cause and leaves nothing to
be determined”). Put another way, an order cannot be “final or
appealable unless it determines the merits of the controversy or the
rights of the parties” conclusively. Id. (emphasis supplied); see also
Hillsboro Plantation v. Plunkett, 55 So. 2d 534, 536 (Fla. 1951) (“A
judgment is ‘final’ for the purposes of an appeal when it terminates
a litigation between the parties on the merits of the case and leaves
nothing to be done but no enforce by execution what has been
determined.” (emphasis supplied)).
Put simply, the Carlton panel went astray because it looked
only at whether the proceeding was “closed,” not at whether the
order on review effected conclusively a change in the rights or legal
relationship existing between the parties. In fact, an order can be
“final” (and therefore appealable) as to the adjudication of rights
or relationships between the parties on one discrete claim or issue,
even though the case does not close because there is more judicial
labor required to adjudicate other questions of rights and
relationships. Cf. S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99
(Fla. 1974) (explaining that an order can be final and appealable,
even if there are issues or causes remaining in the case, provided
the order on review “adjudicates a distinct and severable cause of
action, not interrelated with remaining claims pending in the trial
court”); Fla. R. App. P. 9.110(k).
We should look qualitatively at the nature of a trial court
order on review—rather than simply at whether the case has been
“closed” (administratively or otherwise)—to determine whether it
is constitutionally “final.” Such a qualitative look in this case
reveals that the “final judgment”—and the underlying orders
ostensibly being appealed—do nothing conclusively on the merits
of anything. Under any historic definition of a final order set out
by the supreme court, the order on appeal is not final in the
constitutional sense. That means we do not have jurisdiction to
conduct direct review, and we should dismiss the appeal.
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Adam K. Jarvis of Jarvis Law Firm, PC, Mobile, Alabama, for
Appellant.
Mark D. Tinker of Cole, Scott & Kissane, P.A, Tampa; Randall G.
Rogers and Aaron T. McCurdy of Cole, Scott & Kissane, P.A.,
Pensacola, for Appellees Don Stewart and Sun Chasers, Inc.
Benjamin C. Patton of McRae & Metcalf, P.A., Tallahassee, for
Appellees ResortQuest Northwest Florida, LLC and Wyndham
Vacation Rentals North America, LLC.
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