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

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.)

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