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IN THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA


SECOND DISTRICT, P O BOX 327
LAKELAND, FL 33802-0327

CASE NO. : 2D14-4156


L.T. No.: GC 2010-288

6 MARCH 2015 - FRIDAY


PAUL J. THORNTON,
Appellant/Defendant,
v.
HSBC BANK USA, N.A.,
Appellee/Plaintiff.
___________________________/
APPELLANT'S MOTION TO REHEAR AND CLARIFY
THIS COURT'S DECISION TO DISMISS THE APPEAL
Pursuant to Florida Rules of Appellate Procedure (FRAP) 9.330, Appellant,
Paul J. Thornton, moves this Court to rehear and clarify the issue of this Court's
jurisdiction to review the order being appealed on the grounds that this Court has
overlooked or misapprehended the facts and the pertinent law. On its face, the
record shows that this appeal presents the Court with a textbook example of a case
that is suitable for appellate review under FRAP 9.030(b)(1)(B) and 9.130(a)(3)(C)
(i). This appeal appears to be a case of "first impression," because none of the
cases referenced by opposing counsel or by this Court have been on point for any
of the five (5) persons over whom the lower court determined it had in personam
jurisdiction. This Court's decision to dismiss the instant appeal appears to be such a
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drastic departure from the requirements of the written law, that it nullifies the law
and it denies the Appellant his right to due process and the equal protection of the
law.
1.

This Court appears to have misunderstood my verified motion requesting

the lower court to determine whether it had in personam jurisdiction over five (5)
persons. Only one of those persons was the purported Plaintiff, HSBC USA, N.A.
The Appellee's argument for dismissal is based solely upon the idea that my motion
was (contrary to the words written in the motion) only a challenge to the Plaintiff,
to wit: a challenge to Plaintiff's "right to maintain the action," which--according to
Appellee and this Court--makes the nonfinal order a non-appealable one.
2.

Please, answer this question: Did the lower court ever determine that it

had personal jurisdiction over: HSBC, the substituted plaintiff; the alleged trust;
Smith, the alleged verifier of the amended complaint; Turina, the alleged certifier
of possession; and Wells Fargo, a non-party employer of the complaint's verifier?
3.

If the lower court did determine that it had personal jurisdiction over

these five persons, then that determination had to have been manifestly confirmed
by the order being appealed herein. The one fact that we ALL AGREE on, is that
the order being appealed is non-final. The fact that it is non-final, means that the
Court absolutely determined it had jurisdiction over the subject persons. Other-

wise, the lower court, having determined that it did not have personal jurisdiction,
would have been bound to dismiss the action, not continue it to trial.
4.

"Jurisdiction over the person is the power to determine an action because

the parties are lawfully before the court."1 [underlining added] Plaintiff never
showed on the record that it was "lawfully before the court."
5.

It appears that this Court does not understand that by denying my

motion, the lower court partially granted my verified motion to determine whether
it had personal jurisdiction over these persons. The lower court's decision to deny
my motion was a determination that it had in personam jurisdiction over all five
persons. However, the lower court ignored my motion to determine on what
authority the [lower] court has any in personam jurisdiction over each of the five
persons. A remand for a determination of what authority seems appropriate.
6.

The lower court's jurisdiction over a plaintiff is a threshold issue. If the

plaintiff does not exist, or does not have the right to come into the court, then the
court has no in personam jurisdiction over the plaintiff. Without in personam
jurisdiction of the plaintiff, the court has no subject matter jurisdiction and all of its
judgments, except to dismiss, are void.
7.
1

The lower court has no sua sponte, or arbitrary, power to grant any

6 Nova L.J. 593 1981-1982, at p. 18, Appellate Review of Class Standing


Orders in Florida, by Janice Seamon.
3

jurisdiction it never had. The circuit courts derive their power to determine judicial
controversies between two adversaries who are both properly before the court,
from two sources: 1) the written law; and 2) a written pleading that sufficiently
invokes that power.
The rule that jurisdiction of the subject matter in the general abstract
sense -- the power of the Court to adjudicate the class of cases to
which the particular case belongs -- cannot be conferred by the
acquiescence or consent of the parties is so universally recognized as
to require no citation of authority. The kind of jurisdiction referred to
by this rule is the power conferred on the Court by the sovereign -which means with us the Constitution or statute, or both -- to take
cognizance of the subject matter of a litigation and the parties brought
before it, and to hear and determine [***18] the issues and render
judgment upon the issues joined. Brown on Jurisdiction, Sec. 2, 2nd
Ed.; 35 C.J. 426; 16 C.J. 723, 734. [HN3] "The power to hear and
determine a cause is jurisdiction; it is coram judice whenever a case is
presented which brings this power into action." United States v.
Arrodondo. 6 Peters 709. "Jurisdiction of the subject [*630] matter is
the power to deal with the general abstract question, to hear the
particular facts in any case relating to this question, and to determine
whether or not they are sufficient to invoke the exercise of that
power." Foltz v. St. Louis, etc. R. Co., 60 Fed. 316, 8 C.C.A. 635. But
before this potential jurisdiction of the subject matter -- this power to
hear and determine -- can be exercised, it must be lawfully invoked
and called into action -- the parties and the subject matter of the
particular case must be brought before the Court in such a way that it
acquires the jurisdiction and the power to act. There must be a right in
dispute between two or more parties; a proceeding commenced under
the proper rules of law; process must be served on the opposite party
or parties in order that they may have an opportunity to [***19] be
heard, or the property, if that be the subject matter of the action, must
be within such jurisdiction, and the owner or person having the right
to claim it, or to be heard, must be notified as required by law of the
pendency of the proceeding. Brown on Jurisdiction, Secs. 2 and 9; 15
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C.J. 734, 797. [HN4] The jurisdiction and power of a Court remain at
rest until called into action by some suitor; it cannot by its own action
institute a proceeding sue sponte.2 [underlining added]
8.

This Court appears to have misunderstood the United States Supreme

Court when it declared:


[A] court must have the power to determine whether or not it has
jurisdiction of the person of a litigant 3.... Every court in rendering a
judgment ... determines its jurisdiction over the parties and the subject
matter."4
9.

When any court renders judgment (other than dismissal for lack of

jurisdiction), it thereby--according to the U.S. Supreme Court--determines that it


has jurisdiction over the plaintiff, the defendant and the subject matter. Otherwise,
its judgment is void.
10.

In the case below, Appellant specifically raised the issue of the court's in

personam jurisdiction over five (5) persons.


11.

This Court misapprehends the appellate rules adopted by the Florida

Supreme Court which clearly say that district courts shall review, by appeal, the
non-final orders of circuit courts that determine the jurisdiction of the person.
12.

The Appellee, some district courts, and this Court misapprehend the

2 Lovett v. Lovett, Lexsee 93 Fla. 611, March 29, 1927, 17 19; 629 630.
3 Litigant = "any party to a lawsuit. This means plaintiff, defendant, petitioner,
respondent, cross-complainant, and cross-defendant, but not a witness or
attorney." --http://legal-dictionary.thefreedictionary.com/litigant
4 Stoll v. Gottlieb, 305 U.S. 165, 171-172 (1938).
5

appellate rules by mis-interpreting the rules to mean that only a non-final order
determining in personam jurisdiction of the defendant" is allowed.
13.

The Third District ruled that a trial judge was:

without authority to nullify a rule promulgated by the Supreme Court


of this state. The Supreme Court is vested with the sole authority to
promulgate, rescind and modify the rules, and until the rules are
changed by the source of authority, they remain inviolate. This is not
to say that a trial court is without authority to construe the rules in
applying them to given cases, but this authority does not extend to
nullification of the rules.5
14.

The Appellee and this Court misapprehend my motion as one that only

challenged the lower court's jurisdiction over one person. Appellee further
attempted to twist my motion into one challenging the Plaintiff's right to maintain
an action. My motion asked the lower court to determine whether it had in
personam jurisdiction over five (persons), only one of which was a purported
plaintiff. The alleged right to maintain an action has nothing to do with the other
four persons. Which indicates that Appellee has only requested that this Court
dismiss the appeal as to HSBC only.
15.

Appellee has not argued that it is either harmed or prejudiced by this

appeal. Below is a chart to show how the law, my motion and the lower court's
order have been wrongfully twisted:
5 Ser-Nestler, Inc. v. General Finance Loan Co. of Miami NW, 167 So. 2d 230,
232 (Fla. 3d DCA 1964).
6

Sources

Literal Language

Twisted Version

FRAP
9.030(b)(1)(B),
and
9.130

Appellate Review Is
Mandatory:
District courts of appeal shall
review, by appeal, non-final
orders of circuit courts as
prescribed by rule 9.130.

Appellate Review is not


mandatory:
"permits an appeal..."
(Page 2, 4 of Appellee's
Motion to Dismiss Appeal for
Lack of Jurisdiction.)

FRAP
9.130(a)(3)(C)(i)

Appeals to the district courts


of appeal of non-final orders
are limited to those that
determine the jurisdiction of
the person.

Appeals to the district courts


of appeal of non-final orders
are limited to those that
determine the jurisdiction of
the person of defendants only.

Motion's TITLE, "...Verified Motions ... to


A:184, A:228;
Determine In Personam
A:229; and
Jurisdiction ..."
A:231, lines 19-21

???

Motion's Content, Defendant MOVES the Court


A:184.
to DETERMINE whether the
Court has in personam
jurisdiction over ... five (5)
persons.

Defendant MOVES the Court


to DETERMINE whether one
person, the alleged Plaintiff,
has the right to "maintain an
action." (Appellee's Motion to
Dismiss... at p. 2, 5.)

Motion's Content, Defendant moves the Court to


A:215, 149
determine whether, and on
what authority, the Court has
any in personam jurisdiction
over said Trust [a non-party].

Defendant moves the Court to


determine whether the trust
has the right to maintain this
action.

Motion's Content, Defendant moves the Court to


A:215, 150
determine whether, and on
what authority, the Court has
any in personam jurisdiction
over said Trustee [the
purported Plaintiff, HSBC].

Defendant moves the Court to


determine whether HSBC, the
alleged Plaintiff, has the right
to maintain this action.

Sources

Literal Language

Twisted Version

Motion's Content, Defendant moves the Court to


A:216, 152
determine whether, and on
what authority, the Court has
any in personam jurisdiction
over Turina [a non-party, nonattorney].

Defendant moves the Court to


determine whether Turina, has
the right to maintain this
action.

Motion's Content, Defendant moves the Court to


A:216, 153
determine whether, and on
what authority, the Court has
any in personam jurisdiction
over Wells Fargo [a nonparty].

Defendant moves the Court to


determine whether Wells
Fargo, has the right to
maintain this action.

Motion's Content, Defendant moves the Court to


A:216, 154
determine whether, and on
what authority, the Court has
any in personam jurisdiction
over Smith [a non-party, nonattorney, non-resident].

Defendant moves the Court to


determine whether Smith has
the right to maintain this
action.

The Non-Final
Order's TITLE,
A:257

Order on Defendant's Motion ???


to Determine In Personam
Jurisdiction

The Non-Final
Order's Content,
A:257

THIS CAUSE having come


before the Court on August
21, 2014, on Defendant's
Motion to Determine in
Personam Jurisdiction ..., it is
ORDERED AND
ADJUDGED as follows:
1. Defendant's Motion to
Determine in Personam
Jurisdiction is hereby Denied.

This non-final Order does not


determine the lower court's
jurisdiction over anyone's
person.

Sources

Literal Language

Twisted Version

Keehn, 420 So. 2d


398, 400 quoting
Nat'l Lake Dev.,
417 So. 2d 655,
657

[I]nterlocutory orders relating


to the right of plaintiffs to
maintain an action generally
do not determine the court's
jurisdiction over the
plaintiffs."

[I]nterlocutory orders relating


to the right of plaintiffs to
maintain an action always do
not determine the court's
jurisdiction over the
plaintiffs."

16.

With all due respect, the First District's conclusion in Fisher is not

logical.
The Court's appellate jurisdiction to review nonfinal orders is limited
to those categories of orders identified in Florida Rule of Appellate
Procedure 9.130. Nonfinal orders that determine "the jurisdiction of
the person" are one category of appealable nonfinal orders. See Fla.
R.App. P. 9.130(a)(3)(C)(I). "The term `jurisdiction of the person'
refers to service of process or to the applicability of the long arm
statute to nonresidents." Warren v. Southeastern Leisure Systems, Inc.,
522 So.2d 979, 980 (Fla. 1st DCA 1988). Therefore, only those
interlocutory orders that determine issues involving service of process
or the applicability of the long arm statute are appealable under this
section of Florida Rule of Appellate Procedure 9.130.6
17.

To say that red and green are colors and then to conclude that they are,

therefore, the only colors is illogical. The same thing applies to Fisher: to
state that jurisdiction of the person refers to service of process and the
applicability of the long arm statute to nonresidents is quite alright, but to
conclude, based solely upon that premise, that only those two issues are included,
is to make an illogical, unsupported and erroneous conclusion.
6 Fisher v. International Longshoremen's Association, 827 So. 2d 1096, 1097 (Fla.
1st DCA. 2002).
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18.

The Fisher court ruled that a nonfinal order relating to federal

preemption was not appealable, because it did not determine the jurisdiction of
the person. This instant appeal is very distinguishable from Fisher, because I,
specifically, raised the issue of the lower court's jurisdiction of the person
regarding five persons, and the lower court did determine said jurisdiction.
19.

Florida Rules of Civil Procedure 1.140(b) lists these defenses,

separately: the following defenses may be made by motion at the option of the
pleader: lack of jurisdiction over the person; insufficiency of process; and
insufficiency of service of process. This rule indicates that jurisdiction over the
person is something different from process and service. It is different because
it subsumes process and service, and it includes the court's jurisdiction over any
person involved in a court proceeding, not just the parties. To say otherwise would
not be correct.
20.

I am not seeking to turn the intent of Rule 9.130 on its head by alleging

that the trial court lacks jurisdiction over the plaintiff....7 I am seeking a literal
reading of the text and a proper understanding of its plain meaning. As the Fourth
District said, relating to plaintiffs: It follows that an order determining a class is a
non-final order which determines jurisdiction of the person, appealable under Rule

7 General Dev. Corp. v. Stanislaus, 544 So.2d 306, 307 (Fla. 3d DCA 1989)
10

9.130, Florida Rules of Appellate Procedure.8


21.

The fact is that the lower court did determine that it had personal juris-

diction over five persons. The order being appealed, certified that determination.
The law, as adopted by the Florida Supreme Court, says that this Court shall
review a nonfinal order that determines the jurisdiction of the person. Therefore, it
would be a departure from the essential requirements of the law for this Court to
dismiss my appeal.
22.

This issue applies to every plaintiff in every action filed in Florida. If it

is ignored, the Court will just be 'kicking the can down the road. The Plaintiff
below has been accused of committing unlawful acts in Florida. Such acts should
be stopped as soon as possible.
WHEREFORE, Appellant moves the Court to rehear and to vacate its
decision to dismiss my appeal, to deny Appellee's motion to dismiss the appeal, to
clarify its decision in this matter, to make a written decision, or in the alternative to
remand the matter to the lower tribunal for written findings of fact and conclusions
of law, and for such other, further and different relief as this Court deems proper.
Respectfully submitted by Paul J. Thornton, Appellant/Defendant, self-represented
3916 Craig Avenue
Sebring, FL 33870-1196
Telephone: (863) 385-3639

_______________________________

8 Kohl v. Bay Colony Club Cond, Inc., 385 So. 2d 1028, 1029 (Fla. 4th DCA 1980).
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CERTIFICATE OF SERVICE
I, the undersigned, certify that a true copy of the foregoing document was
mailed on Friday, the 6th day of March 2015 to:
Amy K. Recla
arecla@Wolfelawfl.com
Ronald R. Wolfe & Associates, P.L.
Telephone: (813) 251-4766 x3461
4919 MEMORIAL HWY STE 2008*
FAX: (813) 251-1541
TAMPA, FL 33634-7509*
*Physical Address
P O BOX 25018
mailing address
TAMPA, FL 33622-5018
Electronic Service: eservice@wolfelawfl.com
CERTIFIED BY:
___________________________

Paul J. Thornton
3916 Craig Avenue
Sebring, FL 33870-1196
Telephone: (863) 385-3639

[NOTE: Placed address label over crossed-out address above. New label reads:]
DEAN A MORANDE
CARLTON FIELDS JORDEN B P.A.
525 OKEECHOBEE BLVD STE 1200
WEST PALM BEACH FL 33401-6350

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