Khandjian v. Compagnie Financiere Mediterranee Cofimed, S.A.
| Decision Date | 21 May 1993 |
| Docket Number | No. 92-04332,92-04332 |
| Citation | 619 So.2d 348 |
| Court | Florida District Court of Appeals |
| Parties | 18 Fla. L. Week. D1295 Berge O. KHANDJIAN and Tuula Khandjian, Appellants, v. COMPAGNIE FINANCIERE MEDITERRANEE COFIMED, S.A., Appellee. |
The order from which the appeal has been initiated denies a motion to dismiss. The appellee has filed a motion to dismiss this appeal, which we grant. Contrary to the appellants' view, the trial court's order is not an order determining jurisdiction of the person reviewable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i).
The appellee filed this mortgage foreclosure action and sought to have the individual appellants, Berge O. Khandjian and Tuula Khandjian (the Khandjians), served with process at their place of residence in England. Service of process was not effected until a year after the complaint was filed. The Khandjians filed a motion to dismiss to contest service based solely on the appellee's failure to comply with Florida Rule of Civil Procedure 1.070(j). 1 The court denied the Khandjians' motion to dismiss, presumably finding that good cause had been shown why service had not been made within 120 days. In this appeal, the Khandjians challenge the trial court's finding of good cause.
In the motion to dismiss filed in this court, the appellee argues that this court lacks jurisdiction to review a nonfinal order denying a motion to dismiss. To constitute an appealable nonfinal order, the order must fall within one of the enumerated categories under rule 9.130(a)(3). The only category within which the appealed order might fit is "jurisdiction of the person." See Fla.R.App.P. 9.130(a)(3)(C)(i). If the order does not fall into this category or is not reviewable by certiorari, then we have no jurisdiction.
Prior to the supreme court's decision in Morales v. Sperry Rand Corp., 601 So.2d 538 (Fla.1992), it was consistently held that an order denying a motion to dismiss based on rule 1.070(j) is not an appealable nonfinal order. See Hondorat v. Genova, 579 So.2d 286 (Fla. 3d DCA 1991); LeClaire v. Schneider, 579 So.2d 925 (Fla. 4th DCA 1991); DCA of Hialeah, Inc. v. Lago Grande One Condominium Ass'n, Inc., 559 So.2d 1178 (Fla. 3d DCA 1990); Macke Laundry Services, Inc. v. Saintil, 568 So.2d 541 (Fla. 4th DCA 1990); Cole v. Posada, 555 So.2d 367 (Fla. 3d DCA 1989). After the Morales decision, the only opinion that has passed upon the jurisdictional issue is Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1992).
In Austin, the plaintiff failed to effectuate service within 120 days on the state attorney because of failure to serve the Department of Insurance. The court reasoned that the validity, and not just the timeliness, of the service of process was involved and therefore the order was appealable as one determining jurisdiction of the person. The court further reasoned that the district court cases that denied review antedated Morales. Moreover, the court noted that the plaintiff had admitted noncompliance with the statutory requirement of serving the Department of Insurance.
The only other post-Morales decision we have found in which the court reviewed a nonfinal order denying a motion to dismiss is Gondal v. Martinez, 606 So.2d 490 (Fla. 3d DCA 1992). In Gondal, the court reviewed an order denying a motion filed pursuant to rule 1.070(j). Although the court did not comment on its jurisdiction to review the order of denial, the facts provided indicate that service on the secretary of state was considered ineffective to obtain jurisdiction over ...
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