Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

January 29, 2016 by admin

Jurisdiction — Non-residents — Tortious conduct in state — Evidentiary hearing required on jurisdictional issues where plaintiff alleged that defendant committed tortious conduct through communications with decedent in Florida and defendant denied any such communications

41 Fla. L. Weekly D213aTop of Form

Jurisdiction
— Non-residents — Tortious conduct in state — Evidentiary hearing required
on jurisdictional issues where plaintiff alleged that defendant committed
tortious conduct through communications with decedent in Florida and defendant
denied any such communications

TERUGOSHI KOTOURA a/k/a KATSURA KAN, Appellant, v. TIBOR
STERN, as Personal Representative of the Estate of SHARON STERN, Appellee. 4th
District. Case No. 4D15-1321. January 20, 2016. Appeal of a non-final order
from the Circuit Court for the Seventeenth Judicial Circuit, Broward County;
Mily Rodriguez Powell, Judge; L.T. Case No. 13-010284 CACE (03). Counsel:
Terugoshi Kotoura a/k/a Katsura Kan, Sakyou-ku Kyoto, Japan, pro se. Ronnette
Gleizer of Gleizer Law, P.A., Hallandale Beach, for appellee.

(PER CURIAM.) We reverse in part the trial court’s order
denying appellant’s motion to dismiss for lack of personal jurisdiction and
remand for the trial court to conduct a limited evidentiary hearing on
jurisdictional issues.

Appellant, the defendant below, is a Japanese national, who
has never been to the Florida. In the amended complaint, plaintiff has alleged
long arm jurisdiction based on defendant’s communications with the decedent
while she was in Broward County. See § 48.193(1)(a)2., Fla. Stat.
(2015). The law is clear that a defendant need not be physically present in
Florida for long arm jurisdiction to exist. Wendt v. Horowitz, 822 So.
2d 1252, 1260 (Fla. 2002). A defendant can commit a tortious act in Florida
through “telephonic, electronic, or written communications into Florida.
However, the cause of action must arise from the communications.” Id.
(emphasis supplied).

Appellant filed an affidavit in support of his motion to
dismiss asserting that he never spoke with decedent while she was in Florida
and denying that he committed any tortious conduct in Florida. Plaintiff
responded and filed affidavits with conflicting allegations, asserting that
decedent’s parents observed defendant communicating with the decedent while she
was in Florida. Plaintiff also submitted a number of e-mails. While a few of
the e-mails appear to be from defendant to the decedent, the communications in
those e-mails do not constitute the commission of tortious conduct in Florida
for purposes of long arm jurisdiction. There was no showing that any of the
causes of action in the amended complaint arose from those communications.

Pursuant to the procedure announced in Venetian Salami
Co. v. Parthenais
, 554 So. 2d 499, 503 (Fla. 1989), when the affidavits
submitted by the parties cannot be reconciled, the trial court is required to
hold a limited evidentiary hearing to determine the jurisdictional issues. E.g.,
Balboa v. Assante
, 958 So. 2d 573, 575 (Fla. 4th DCA 2007).

The affidavits submitted by the parties in this case cannot
be reconciled. Plaintiff alleges that defendant committed tortious conduct
through communications with the decedent in Florida, and defendant denies any
such communications. Accordingly, we reverse and remand for the court to
conduct a limited evidentiary hearing on the jurisdictional issues.

We decline to reach appellant’s argument that he lacks
sufficient minimum contacts with Florida under the second prong of the Venetian
Salami
analysis. The trial court should consider the evidence presented at
the hearing, including the extent, nature and timing of defendant’s alleged
communications with decedent in Florida, in deciding this issue. The inquiry
should focus on whether the defendant’s “conduct and connection with the forum
State are such that he should reasonably anticipate being haled into court
there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980). We affirm as to the other issues argued in this appeal without
discussion.

Affirmed in part, reversed in part, and remanded. (CIKLIN,
C.J., GROSS and MAY, JJ., concur.)

* *
*

Filed Under: Articles

Primary Sidebar

Blog Archives

  • January 2021
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982