author: Levine, J. May, J. dissenting.

text:
    Joseph FOX, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D18-914
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    A. Randall Haas, Fort Lauderdale, for appellant.
    Edmund M. Haskins, Fort Lauderdale, for appellee Department of Children and Families.
   Levine, J.

The issue presented for our review is whether the Department abused its discretion in denying appellant's request for an exemption to work at an in-home daycare following his plea to charges of soliciting a prostitute, a disqualifying offense. The Department has a statutory right to deny an application for exemption, as the applicable statute provides that the Department "may" grant an exemption. Because we cannot say, considering the facts as found by the ALJ, that the Department abused its discretion in denying the exemption, we affirm.

Appellant and his wife owned and operated an in-home daycare. Appellant's wife was the main caretaker and appellant was the designated substitute. In 2003, appellant was arrested for procuring a prostitute after he offered an undercover officer $40 in exchange for sexual services. Appellant resolved the case by pleading to lewdness. Appellant never informed the Department of his arrest as required by law and continued to work as a designated substitute despite being prohibited from continuing to work at the in-home daycare without obtaining an exemption from the Department.

In 2016, the Department discovered appellant's 2003 arrest and, in light of the arrest, notified appellant that he was disqualified from working and being licensed. Appellant only then applied for an exemption. In the exemption application, appellant stated that he had given a woman a ride in his car having no idea that she was a prostitute. Appellant subsequently submitted a personal statement repeating the same story. The Department denied his exemption request.

After the denial of the exemption, appellant requested an administrative hearing. During the hearing, appellant offered testimony from witnesses attesting that he was a good caretaker and a good person. Appellant's wife testified that she in fact wrote the exemption application with appellant's knowledge of what she wrote. She also testified that she authored the subsequent personal statement which appellant rewrote in his own handwriting. Appellant admitted on cross-examination that he told his wife what to write in the exemption application. He never sent the Department a different account because he did not want his wife to find out what had actually happened. Further, he did not think the Department would find out what had happened because he believed the record was sealed.

The ALJ found that appellant was rehabilitated from his disqualifying offense. In reaching its decision, the ALJ relied heavily on the fact that appellant had not been arrested since 2003 and had served as the designated substitute for the daycare for fourteen years after his arrest. The ALJ also found that appellant did not lie on his application for exemption, stating:

Petitioner only provided the bare bones account regarding the details for his disqualifying offense to his wife. However, his admission at hearing that he picked up a young prostitute and was arrested is not a lie and does not contradict the application or personal statement his wife wrote that the Department relies on. Petitioner's narration just does not provide every detail.

In the conclusion of law section, the ALJ again stated, "Although, Petitioner was not forthcoming about every detail about the embarrassing incident 14 years ago when he admitted to his wife about the prostitution charge, Petitioner's version was not false. He only told her part of the story, the bare bones account." The ALJ acknowledged that "even if the applicant demonstrates rehabilitation, he or she is only eligible for an exemption, not entitled to one. The agency head retains discretion to deny the exemption, provided its decision does not constitute an abuse of discretion." The ALJ then concluded that it would be an abuse of discretion to deny appellant's exemption request.

The Department's counsel filed exceptions, and the Secretary of the Department granted the exceptions. The final order found that there was not competent substantial evidence to support the ALJ's finding that appellant did not lie in his exemption application. The final order further found that the Department articulated a reasonable basis for the denial of the exemption, that being the disqualifying offense of lewdness, appellant's inability to be forthright and honest with the Department about his arrest, and his admission that he did not correct the false account in his application because he believed his record was sealed and the Department would not find out. The final order concluded that appellant's inability to be truthful was a concern in allowing appellant to be placed in a position of special trust with children. The final order adopted the recommended order as modified and denied appellant's exemption from disqualification from employment.

On appeal, appellant argues that the Department improperly substituted its findings for that of the ALJ. "An agency's decision to grant or deny an exemption is subject to the deferential abuse of discretion standard of review." A.P. v. Dep't of Children & Families , 230 So.3d 3, 6 (Fla. 4th DCA 2017). "Discretion ... is abused when the ... action is arbitrary, fanciful, or unreasonable ...." Id. (quoting Canakaris v. Canakaris , 382 So.2d 1197, 1203 (Fla. 1980) ).

An agency must accept the ALJ's factual findings unless they are not supported by competent substantial evidence. § 120.57(1)(l ), Fla. Stat. (2016) ; Yerks v. Sch. Bd. of Broward Cty. , 219 So.3d 844, 848 (Fla. 4th DCA 2017). In order to reject the ALJ's conclusion of law, "the agency ... must make a finding that its substituted conclusion of law ... is as or more reasonable than that which was rejected or modified." § 120.57(1)(l ), Fla. Stat. A court shall set aside agency action when "[t]he agency's exercise of discretion was ... outside the range of discretion delegated to the agency by law ... but the court shall not substitute its judgment for that of the agency on an issue of discretion." § 120.68(7)(e), Fla. Stat.

The legislature has enacted statutes governing childcare facilities with the "intent to protect the health, safety, and well-being of the children of the state and to promote their emotional and intellectual development and care." § 402.301, Fla. Stat. Toward that end, the legislature has expressed that all "child care personnel shall be of good moral character." § 402.301(2), Fla. Stat. Good moral character is based upon a screening. § 402.305(2), Fla. Stat. This screening includes background investigations as a condition of employment and continued employment. § 435.04, Fla. Stat. The legislature has identified offenses that disqualify a person from working as a childcare personnel unless that person is granted an exemption by the Department. § 435.07(4), Fla. Stat. Among the disqualifying offenses is pleading to any charge relating to prostitution. § 435.04(2)(v), Fla. Stat.

The head of an "agency may grant to any employee otherwise disqualified from employment an exemption from disqualification ...." § 435.07(1)(a), Fla. Stat. (emphasis added). Thus, "the legislature has not provided for an exemption as a matter of right, but has delegated to the Department the broad discretion to grant an exemption." Heburn v. Dep't of Children & Families , 772 So.2d 561, 563 (Fla. 1st DCA 2000). "An exemption from a statute, enacted to protect the public welfare, is strictly construed against the person claiming the exemption ...." Id.

In order to obtain an exemption, an employee has to set forth clear and convincing evidence of rehabilitation, which includes, but is not limited to, the following:

the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed.

§ 435.07(3)(a), Fla. Stat. "The agency head still has the discretion to deny the exemption notwithstanding the showing of rehabilitation, but he or she must articulate the rationale for doing so in order to facilitate judicial review." A.P. , 230 So.3d at 6 (citation omitted).

The undisputed facts of this case, as found by the ALJ, show that appellant was arrested for soliciting a prostitute, a disqualifying offense. Appellant did not disclose his arrest to the Department and continued working as a designated substitute for fourteen years. Once the Department discovered the arrest, appellant, on his exemption application, claimed that he merely gave a woman a ride not knowing she was a prostitute. During the hearing, appellant finally admitted that he had solicited an undercover officer to perform sexual acts. Also during the hearing, appellant explained that he was not candid on his exemption application because he did not want his wife to find out the truth and because he did not think the Department would find out because he thought his record was sealed.

Based on these facts, the ALJ concluded that appellant did not lie on his exemption application. This conclusion was not supported by the ALJ's findings of fact. Appellant's statement on his exemption application that he gave a woman a ride not knowing she was a prostitute is not the same as offering money to an undercover officer for sexual acts. Additionally, the ALJ's conclusion that the exemption application was a "bare bones account" and "just [did] not provide every detail," fails to recognize that lies include not only false statements but also the intentional withholding or omitting of information. The Department properly exercised its authority in rejecting the ALJ's conclusion that appellant did not lie on his exemption application, as this conclusion was not supported by the ALJ's findings of fact or competent substantial evidence. See § 120.57(1)(l ), Fla. Stat.; Yerks , 219 So.3d at 848.

Even accepting the ALJ's conclusion that appellant did not lie on the exemption application, the Department still did not abuse its discretion in denying the exemption. On this point, Heburn is instructive. In that case, the ALJ found that the petitioner demonstrated rehabilitation and was entitled to an exemption. 772 So.2d at 562. The Department accepted the ALJ's findings but denied the exemption due to the severity of the offenses and the amount of time since the petitioner's last incarceration. Id. at 563. The First District affirmed, finding that the Department's decision was "within its statutory discretion," "not unreasonable, and not outside the range of discretion delegated to that agency." Id.

This case is unlike K.J.S. v. Department of Children & Family Services , 974 So.2d 1106 (Fla. 1st DCA 2007), where the Department rejected the ALJ's factual findings without reviewing a transcript. The First District reversed the Department's denial of an exemption because the "Department failed to review the entire record or state with particularity that the findings lack competent, substantial evidence." Id. at 1109 (footnote omitted). The First District concluded, "Absent the Department's compliance with the applicable statutes and interpretive case law, we are compelled to conclude that the Department's rejection of the ALJ's factual findings in this case is unreasonable and constitutes an abuse of discretion." Id. Unlike in K.J.S. , here the Department reviewed the transcript of the hearing and stated with particularity the findings that lacked competent substantial evidence.

In J.D. v. Florida Department of Children & Families , 114 So.3d 1127, 1134 (Fla. 1st DCA 2013), the First District found that the Department erred in rejecting, without a transcript, the ALJ's finding that the petitioner was rehabilitated. "Because DCF did not comply with this statutory requirement (nor could it because the transcript of the hearing was not filed below), DCF erred in rejecting the ALJ's findings that J.D. has overcome her anger management issues and is rehabilitated." Id. at 1133-34. Nevertheless, the First District approved the denial of an exemption, even though there was no transcript to review, since the Department was still able to state in particularity with its final order the reason for its denial of an exemption. The court explained:

DCF did not, however, err in rejecting the ALJ's conclusion ... that it was "arbitrary" (and, thus, an abuse of discretion under the Canakaris standard) for DCF to deny [the petitioner's] exemption request. Indeed, as explained above, the agency was free to reject that conclusion as long as it explained its rationale for doing so in accordance with section 120.57(1)(l ).

Id. Because the Department "explained with sufficient particularity its rationale for denying the exemption request," "we cannot say that DCF abused its discretion in denying [petitioner's] request for an exemption from disqualification." Id.

Like in Heburn and J.D. , the Department's decision in denying appellant's exemption request was within its statutory discretion. Section 435.07(1)(a) clearly states that the Department "may" grant an exemption. Even the ALJ's own order conceded that the Department had the right to refuse the request for an exemption. The Department exercised its discretion in denying the exemption and articulated its rationale for doing so. See A.P. , 230 So.3d at 6 ; J.D. , 114 So.3d at 1134. The Department's denial of the exemption was within its own discretion delegated to the Department by law. See § 120.68(7)(e), Fla. Stat.

In arguing for reversal, appellant relies heavily on the fourteen years of childcare services he provided following his arrest. However, rather than favoring an exemption, this supports the conclusion that the Department did not abuse its discretion in denying the exemption. Appellant flouted the law for fourteen years by concealing his arrest from the Department, providing childcare services without an exemption, and then failing to be forthright on the exemption application once the Department discovered the arrest and disqualified appellant from employment. To allow appellant to rely on the fourteen years of childcare services following his arrest would be contrary to the text of the statute and would encourage employees to conceal disqualifying acts with impunity.

The dissent states that "[t]he ALJ found it would be an abuse of discretion to deny the exemption." However, the ALJ did not cite any case law or authority to support its finding that denial of an exemption would be an abuse of discretion. Instead, the ALJ correctly recognized that "even if the applicant demonstrates rehabilitation, he or she is only eligible for an exemption, not entitled to one. The agency head retains discretion to deny the exemption, provided its decision does not constitute an abuse of discretion."

The law is clear that the Department is not required to grant an exemption from disqualification even if a petitioner presents clear, convincing, and unrefuted evidence that he qualifies for exemption. Phillips v. Dep't of Juvenile Justice , 736 So.2d 118, 119 (Fla. 4th DCA 1999). "[E]ven if rehabilitation is shown, the applicant is only eligible for an exemption, not entitled to one." J.D. , 114 So.3d at 1131. In this case, the Department did not abuse its discretion in not denying an exemption, as it cannot be said that no Department would deny the request for an exemption based on the facts as determined by the ALJ. See Phillips , 736 So.2d at 119 ; J.D. , 114 So.3d at 1134.

Affirmed .

Klingensmith, J., concurs.

May, J. dissents with opinion.

May, J. dissenting.

I respectfully dissent. The ALJ made very specific findings and concluded that the petitioner had met the burden of proving that he had rehabilitated himself from the qualifying offense. In my view, the Department of Children and Families ("DCF") substituted its own findings for that of the ALJ to reach a contrary conclusion.

Section 435.07, Florida Statutes (2016) provides:

(3)(a) In order for the head of an agency to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth clear and convincing evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if employment or continued employment is allowed.

The applicant has the burden of "setting forth clear and convincing evidence of rehabilitation." § 435.07(3)(a), Fla. Stat. Here, the petitioner did just that.

An agency's decision to grant or deny an exemption is subject to the deferential abuse of discretion standard of review. K.J.S. v. Dep't of Children & Family Servs. , 974 So.2d 1106, 1107 (Fla. 1st DCA 2007). "Discretion ... is abused when the ... action is arbitrary, fanciful, or unreasonable ...." Canakaris v. Canakaris , 382 So.2d 1197, 1203 (Fla. 1980).

Here, the ALJ found the information in the exemption package was not purposefully faulty because the petitioner's wife completed the information based on her husband's general description of the incident and her memory. The ALJ specifically found the information was not contrary to the facts, but "a less detailed account."

Nevertheless, the DCF rejected the ALJ's findings and substituted them with its own. And, it did so by concluding the limited details were dishonest rather than incomplete. N.W. v. Dep't of Children & Family Servs. , 981 So.2d 599, 602 (Fla. 3d DCA 2008) ("[A]fter an administrative hearing, an 'agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence'."). Second-guessing an ALJ's credibility determinations or interpreting the evidence to suit a narrative is simply not permitted. Yerks v. Sch. Bd. of Broward Cty , 219 So.3d 844, 848 (Fla. 4th DCA 2017) ("The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion").

The facts here are similar to those in K.J.S. v. Dep't of Children & Family Servs. , 974 So.2d at 1106. There, K.J.S.'s wife used their home for a daycare business. Id. at 1107. After screening, DCF advised K.J.S. he could not live in the home or be on the premises because of his prior conviction for second degree felony murder. Id. at 1108. K.J.S. sought an exemption. Id. During a meeting with the exemption committee, he "down-played his role in, knowledge of, and culpability for, his crimes." Id. DCF denied the exemption because of the discrepancies between the crime report and K.J.S.'s account. Id.

At his administrative hearing, twenty-two witnesses testified that K.J.S. had completely changed his life. Id. He was a role model in prison, worked to serve other inmates, became educated, and continued down a positive path after release. Id. Witnesses testified to his responsibility, commitment, work ethic, and work in the community. Id. DCF relied on evidence that K.J.S. had not accurately accounted for his involvement in the crime and had not taken responsibility for his conduct. Id. at 1109.

The ALJ considered the evidence and found K.J.S. demonstrated he was rehabilitated from his disqualifying offense. Id. at 1108. The ALJ found clear and overwhelming evidence that K.J.S. posed no threat to children. Id. The ALJ found K.J.S.'s version of the crime "inexplicable," but that should be considered in light of the evidence of his "exemplary life" since his release. Id. Nevertheless, DCF denied the exemption finding the positive testimony was "off-set" by K.J.S.'s attempt to downplay his role in the crime. Id. at 1109.

The First District reversed. Id. at 1110. It noted the ALJ made very specific findings regarding the weight and credibility of the evidence. Id. at 1109. It acknowledged the ALJ took into account that K.J.S. downplayed his role in the crime, but balanced that evidence against the rehabilitation testimony, which the ALJ was uniquely positioned to assess. Id. at 1109-1110. The First District held that DCF abused its discretion by ignoring factual findings that were supported by competent, substantial evidence. Id. at 1109.

The court indicated that the DCF had re-weighed the evidence by balancing the very same facts to deny the exemption. Id. It held DCF had failed to comply with the applicable statute and case law in failing to state with particularity what findings regarding rehabilitation were not supported by competent, substantial evidence. Id. at 1110.

Here, the ALJ heard testimony from parents of children who attended the day care facility about the quality of care rendered by the petitioner. The ALJ described the witnesses' testimony as "credible," "persuasive," and "compelling." The ALJ found the petitioner was involved in the Knights of Columbus, active in his daughter's school for more than ten years, and attends church. He had worked for the same employer for more than twenty-three years.

The ALJ balanced the petitioner's past criminal activity against the considerable evidence of his rehabilitation. The ALJ found the petitioner failed to provide detail of the disqualifying offense, but did not lie about it. She excused the lack of detail based on the petitioner's desire to spare his wife from it. The ALJ found it would be an abuse of discretion to deny the exemption.

In the "Findings of Ultimate Fact," the ALJ determined "upon careful consideration of the entire record," the petitioner demonstrated his rehabilitation from his disqualifying offense by clear and convincing evidence. The ALJ specifically found the petitioner "will not present a danger" to children or other vulnerable individuals if employed at the daycare.

Yet, the DCF chose to focus solely on the petitioner's failure to disclose details of the disqualifying offense and paid "NO" attention to the rehabilitation evidence. It did not consider the time period elapsed since the incident. It did not consider the lack of harm to the victim (an undercover law enforcement officer). It did not consider the history of the petitioner since the incident. It did not consider the other evidence to support that the petitioner was not a danger if his employment continued. It simply disagreed with the ALJ's conclusion that the petitioner's "bare bones" description was not false although lacking in detail.

The DCF made the same mistake it made in K.J.S. It focused entirely on the petitioner's explanation of his past criminal activity, and overlooked the considerable evidence of his rehabilitation. It relied, as has the majority, on the DCF's discretion to deny the exemption without considering the entire record.

In my view, the DCF abused its discretion by denying the exemption over a "concern" the petitioner could not be trusted. See A.P. Dep't of Children & Families , 230 So.3d 3, 6 (Fla. 4th DCA 2017). I would reverse the final order.


source: Caselaw Access Project

author: May, J. Kuntz, J., concurring in part and dissenting in part.

license: Public Domain

text:
    Timothy Richard FOX, Appellant, v. Pamela Sue FOX, Appellee.
    No. 4D17-2092
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    EN BANC
   May, J.

The effect of a trial court's failure to make statutorily-required findings in an alimony award is the focus of this appeal. The former husband argues the trial court's failure constitutes reversible error. The former wife responds the former husband did not preserve the issue because he did not move for rehearing and call the issue to the trial court's attention. And so, a duel between reversible error and preservation is set. The former husband also argues the trial court erred in denying him the opportunity to conduct a vocational examination of the former wife.

We visit this issue en banc to resolve a conflict within our court. We hold that the failure to comply with the statute's requirement of factual findings is reversible error regardless of whether a motion for rehearing is filed. In doing so, we recede from Farghali v. Farghali , 187 So.3d 338 (Fla. 4th DCA 2016), which departed from our precedent that the failure to make the statutory findings constitutes reversible error. We further certify conflict with the First, Second, Third, and Fifth Districts on whether a motion for rehearing is required to preserve this issue. We also find merit in the former husband's second issue and reverse for further proceedings.

The Facts

The former wife petitioned for dissolution of a thirty-two year marriage. Both parties have a high-school education. The former husband works in a managerial position at an asphalt company; the former wife was employed for more than thirty years as a dental assistant and office manager. In her petition, she alleged she was unemployed and suffered from health issues.

Both parties filed financial affidavits. The former wife attested she had no monthly income and a monthly deficit of $4,017. She listed significant total assets and no liabilities or debt. The former husband's financial affidavit listed a net monthly income around $6,600.

The court granted the former wife's request for temporary alimony, ordering the former husband to pay $3,700 per month. Three days later, the former wife moved for contempt, enforcement, attorney's fees, and costs, accusing the former husband of failing to pay temporary relief.

The former husband filed a notice of vocational examination of the former wife, arguing that her earning ability was in controversy and requesting her to bring her medical records and copies of employment applications. A little less than a month later, the former wife formally objected to the vocational examination, arguing the former husband consented to her not working years earlier and that she suffers from debilitating health conditions.

With the trial set, the former husband moved for a continuance, arguing he had an outstanding notice of vocational examination to which the former wife had originally agreed. The court denied the former husband's request.

The parties entered into a marital settlement agreement, resolving all issues except alimony. The day before trial, the former husband filed an amended financial affidavit, listing his net monthly income as nearly half of that previously indicated.

The trial court tried the alimony issue. The former wife testified that she was a dental assistant for about thirty-four years and a traditional mother. She left her job due to health issues and as part of an agreement with the former husband. The former wife admitted she was unhappy with her job's office culture, but denied she quit for that reason.

The former husband offered the testimony of a vocational evaluation specialist. The expert explained how he evaluates individuals to determine earning potential. He explained that he never examined the former wife, but had discussed her situation with the former husband's counsel. The former wife objected to his testimony based on relevance, speculation, and lack of foundation. The trial court sustained the objections.

The trial court found the former wife had no gross monthly income and the former husband had a gross monthly income of $11,853. Though the former husband disputed the amount, the court awarded the former wife $4,500 per month in permanent periodic alimony. The court expressly found the former husband never sought to impute income to the former wife in the pleadings or the joint pretrial statement.

From this judgment, the former husband now appeals.

The Analysis

The former husband first argues the court erred in awarding permanent periodic alimony based on the former couple's gross monthly income without making factual findings to support its conclusions. Relying on our decision in Farghali v. Farghali , 187 So.3d 338 (Fla. 4th DCA 2016), the former wife responds that the former husband failed to preserve the issue when he did not move for rehearing.

In Farghali , we adopted a First District rule that "a party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing." Id. at 339 (quoting Simmons v. Simmons , 979 So.2d 1063, 1064 (Fla. 1st DCA 2008) ). We then stated that "[a]lthough we have not expressly adopted this rule before, we do so now." Id.

Farghali conflicts with our earlier decisions, which did not require a motion for rehearing to preserve the lack of findings issue. See Badgley v. Sanchez , 165 So.3d 742 (Fla. 4th DCA 2015) (error in failing to make statutorily-required findings in an alimony award); Rentel v. Rentel , 124 So.3d 993 (Fla. 4th DCA 2013) (error in failing to make statutorily-required findings in an alimony award); Mondello v. Torres , 47 So.3d 389 (Fla. 4th DCA 2010) (error in failing to make statutorily-required findings in an equitable distribution award); Aguirre v. Aguirre , 985 So.2d 1203 (Fla. 4th DCA 2008) (error in failing to make statutorily-required findings in a child support award); and Dorsett v. Dorsett , 902 So.2d 947 (Fla. 4th DCA 2005) (error in failing to make statutorily-required findings in an equitable distribution award).

A panel of our court has no authority to overrule or recede from our precedent on the same legal issue. Phila. Fin. Mgmt. of S.F., LLC v. DJSP Enters., Inc. , 227 So.3d 612, 617 (Fla. 4th DCA 2017) ; see also In re Rule 9.331 , 416 So.2d 1127, 1128 (Fla. 1982) ("[A] three-judge panel of a district court should not overrule or recede from a prior panel's ruling on an identical point of the law."). We therefore review the issue en banc.

In Dorsett , we held that "[e]ven when no trial transcript is provided to the reviewing court, '[f]ailure to make sufficient findings regarding value of property and identification of marital assets and debts constitutes reversible error and requires remand for appropriate findings to be made.' " Id. at 950 (alterations in original) (quoting Wolfe v. Nazaire , 758 So.2d 730, 733 (Fla. 4th DCA 2000) ). In a footnote, we cited Broadfoot v. Broadfoot , 791 So.2d 584 (Fla. 3d DCA 2001) ; and Mathieu v. Mathieu , 877 So.2d 740 (Fla. 5th DCA 2004) as having reached the opposite conclusion. Id. at 950 n.3 ; see also Mondello v. Torres , 47 So.3d 389, 400 n.3 (Fla. 4th DCA 2010) ("This court has expressed disagreement with Mathieu .").

In Broadfoot , the Third District affirmed an alimony award despite the lack of statutorily-required findings because the award was clear and supported by the record. The Fifth District adopted Broadfoot in Mathieu and affirmed a dissolution judgment even though it lacked statutorily-required findings because the issue was not raised in a motion for rehearing filed by the husband. Notably, both courts adopted an exception to the rule when an appellate court is unable to have a meaningful review due to the lack of findings.

Subsequently, in Rentel , we held that "[b]ecause it is not apparent that the trial court based its alimony calculations on net income, we reverse and remand to make the required findings and to modify the award if necessary." 124 So.3d at 994. And in Badgley , we reiterated that "a trial court's failure to make statutorily-required findings nonetheless warrants reversal." 165 So.3d at 744 (citations omitted). We again cited Mathieu as contrary authority. Id.

The First District adopted Broadfoot and Mathieu in Owens v. Owens, 973 So.2d 1169 (Fla. 1st DCA 2007) (because the appellant failed to challenge the adequacy of the finding in a motion for rehearing, it failed to preserve the issue for appellate review).

In Esaw v. Esaw , 965 So.2d 1261 (Fla. 2nd DCA 2007), the Second District affirmed a dissolution judgment because the appellant failed to demonstrate harmful error or provide a transcript. It did so despite the lack of statutorily-required findings. It indicated that the "technical deficiency in the trial court's findings" did not render the error fundamental. And, it acknowledged our disagreement with Broadfoot and Mathieu in Esaw v. Esaw , 965 So.2d 1261, 1265 n.1 (Fla. 2d DCA 2007). Judge Silberman also noted the conflict in his concurring opinion. Id. at 1268 (Silberman, J. concurring).

Despite the other districts' decisions requiring a party to file a motion for rehearing to preserve the issue of a trial court's failure to make statutorily-required findings in alimony, equitable distribution, and child support, we adhere to our precedent that a party may raise the issue without having previously filed a motion for rehearing. This is because the rules do not require the filing of a motion, many dissolution appeals are pro se, and a family court judge should be aware of the statutory requirements in rendering a decision on alimony, equitable distribution, and child support.

Dissolution of marriage cases are unlike other civil litigation. The final dissolution judgment is often not the end of the litigation process. The final judgment establishes ground zero for the purpose of petitions for enforcement, modification, and contempt proceedings. Without the statutorily-required findings of fact, it is difficult, if not impossible, to review the record for evidentiary support of the judgment, to enforce a judgment, or to subsequently determine if there has been a material change in circumstances sufficient to justify a modification of that judgment.

This case involves two competing values-judicial economy vs. a rule that is in the best interest of the children and their families. It makes perfect sense from a judicial economy standpoint to bring "the claim of inadequate findings" to the "attention of the trial court by way of a motion for rehearing." Mathieu , 877 So.2d 740 (Fla. 5th DCA 2004). Surely, the filing of a motion could easily eliminate an issue for appeal. But, because these cases involve children and families, it is equally, if not more, important that the final judgment comport with Chapter 61.

Rather than refusing to reach an appellate issue for want of a motion for rehearing, it is far better to require a trial court to make the statutorily-required findings. To evade review of a trial court's failure to make required findings because someone either forgot or failed to move for rehearing frustrates the very purpose for those findings. Requiring a motion for rehearing is a rule that is too restrictive and imprecise to operate fairly where children and families are the focus. This is especially true where many family court cases are handled pro se.

The dissent suggests however that judicial economy should prevail over children and families and that this is just a common preservation issue. We disagree. The failure to make required factual findings is not the type of error that preservation rules were designed to avoid.

Preservation rules are designed to prevent a party from blindsiding the judge by raising an issue on appeal that was not brought to the trial court's attention. And, we will not review issues that a trial court has not had the opportunity to rule on because they were not raised. Correspondingly, the preservation rules were not designed to allow a trial court to ignore statutory requirements of which it should be aware.

Certainly, a judge sitting in family court should be cognizant of what findings are statutorily required in a final judgment of dissolution. There should be no need to bring those requirements to the trial court's attention. This does not mean that a lawyer or party ignore the rules either. It is preferable for the litigants to encourage the court's compliance with statutory requirements. But, it should not prevent a litigant from raising the issue when the court fails to do so.

While it may not be fundamental error for the court to fail to make statutorily-required findings, it is reversible error. See Esaw , 965 So.2d at 1265. "Fundamental error ... is error which goes to the foundation of the case or goes to the merits of the cause of action." Sanford v. Rubin , 237 So.2d 134, 137 (Fla. 1970). It is a means by which an appellate court may address an issue to which the litigant failed to object or raise-an issue of which the trial court would otherwise be unaware. Id.

A trial court's failure to make statutorily-required findings is not in the same category. That failure neither goes to the foundation nor the merits of the case. There is no need to call the matter to the attention of the trial court by way of a motion for rehearing. But, it does provide cause for reversal. See, e.g., Walden v. Adekola , 773 So.2d 1218, 1219 (Fla. 3d DCA 2000) (reversing a sanctions order for failing to contain a willfulness finding, which can be raised for the first time on appeal).

We therefore adhere to our prior precedent that is consistent with this opinion. We approve the rule applied in Badgley, Rental, Mondel , Aguirre, and Dorsett . We recede from our opinions in Farghali and Kuchera to the extent they adopted a new rule requiring a motion for rehearing to raise a trial court's failure to make statutorily-required findings on appeal.

The Florida Bar Family Law Rules Committee may want to address this issue because of the judicial economy that results from the First, Second, Third, and Fifth District's rule of requiring a motion for rehearing to preserve the issue of a trial court's failure to make statutorily-required findings. Absent such a rule, however, we will not require a motion for rehearing to "preserve" the issue.

We also find merit in the former husband's second issue-the court's refusal to allow him to discover and present evidence on the former wife's employability. He filed a notice of vocational examination of the former wife, arguing that her ability to earn an income was in controversy. He requested she produce information in that regard. The former wife objected to the notice. The circuit court denied the former husband's request to conduct a vocational examination.

At trial, the former husband attempted to introduce the testimony of a vocational evaluation specialist, who testified that he was familiar with the former wife's employment through information provided by the former husband's attorney. Based on the specialist's admission that he had not evaluated the former wife, the court sustained the former wife's hearsay, relevance, speculation, and lack of foundation objections.

The Florida Family Law Rules of Procedure allow a party to examine the other party for "physical or mental condition, employability or vocational testing, genetic testing, or any other type of examination related to a matter in controversy." Fla. Fam. L.R.P. 12.360(a)(1). The requesting party must show "good cause for the examination." Id. Fla. R. Fam. P. 12.360(a)(2).

A court must rely on competent, substantial evidence when determining whether a spouse is voluntarily unemployed or underemployed. Lafferty v. Lafferty , 134 So.3d 1142, 1144 (Fla. 2d DCA 2014) (citations omitted). The court should also consider "evidence of employment potential and probable earnings based on work history, qualifications, and prevailing wages in the community." Zarycki-Weig v. Weig , 25 So.3d 573, 575 (Fla. 4th DCA 2009) (citations omitted).

Here, the former husband asked to conduct a vocational examination. He attempted to present a vocational expert's testimony. The court prevented him from doing either. We therefore reverse and remand the case to the circuit court to allow the former husband to vocationally examine the former wife so that the court can determine her ability to work, earning capacity, and reevaluate the alimony award.

For the reasons expressed above, we reverse and remand the case to the trial court to conduct further proceedings in accordance with this opinion and to provide the statutorily-required findings in support of its ultimate decision on alimony.

Reversed and remanded for further proceedings.

Warner, Gross, Taylor, Damoorgian, and Klingensmith, concur.

Conner, J., concurs specially with opinion.

Kuntz, J., concurs in part and dissents in part with opinion, in which Gerber, C.J., Ciklin, Levine and Forst, JJ., concur.

Conner, J. concurring specially.

After participating in the panel decisions issued in Farghali v. Farghali , 187 So.3d 338 (Fla. 4th DCA 2016) and Kuchera v. Kuchera , 230 So.3d 135 (Fla. 4th DCA 2017) and considering the various positions argued during the en banc consideration of this case, I have come to the conclusion that the majority's position is more persuasive. I have changed my position from that expressed in Farghali and Kuchera for two reasons.

First, the position taken by the First, Second, Third, and Fifth Districts contains the caveat that the district court "reserve[s] the right to reverse on account of an absence of findings (whether the point was raised in the trial court or not) if the absence of the statutory findings frustrates th[e] court's appellate review." Broadfoot v. Broadfoot , 791 So.2d 584, 585 (Fla. 3d DCA 2001). I submit that caveat is in recognition of the uniqueness of family law cases and the prevalence of statutory requirements for findings. More importantly, just as the dissent contends that either error is fundamental or not, it is equally true that an error is either preserved or not. If an error is not preserved, then the trial judge should not be reversed, unless the error is fundamental. In my view, the caveat represents the notion that the error in failing to make statutory findings can be fundamental. The problem with the caveat is that it is up to a panel of appellate judges to determine whether "the absence of the statutory findings frustrates th[e] court's appellate review," which can sometimes lead to speculation about what a trial judge was thinking. Discerning the unspoken thoughts of a trial judge can be problematic, when a trial judge's thinking is often dependent upon determining the credibility of witnesses.

Second, what makes family law cases uniquely different from other civil cases is the large percentage of cases in which both parties are representing themselves. Unlike the other subject areas of cases coming before the trial court, in more than half the family law cases, the parties are usually not going to be aware of the preservation requirement for an appeal, in order to even attempt to bring a lack of adequate findings to the attention of the trial court by way of a motion for rehearing. That concern is even more prominent when one considers, as the majority points out, that the initial final judgment sets the threshold for future proceedings affecting children in particular.

Thus, I join the majority.

Kuntz, J., concurring in part and dissenting in part.

The majority holds that a circuit court fundamentally errs when it fails to make written findings about periodic permanent alimony even when no party raises the issue below. But "[t]here is no general rule that the lack of statutorily required findings constitutes fundamental error." Esaw v. Esaw , 965 So.2d 1261, 1265 (Fla. 2d DCA 2007). I would require the parties to preserve the issue for appellate review, as we require in every other instance absent fundamental error. Thus, I respectfully dissent from that portion of the Court's en banc opinion.

Analysis

i. En Banc Review is Required

As noted by the majority, in Farghali , we adopted a First District rule that "a party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing." Farghali v. Farghali , 187 So.3d 338, 339 (Fla. 4th DCA 2016) (quoting Simmons v. Simmons , 979 So.2d 1063, 1064 (Fla. 1st DCA 2008) ).

But we had previously addressed this same issue and reached the opposite conclusion. See, e.g. , Badgley v. Sanchez , 165 So.3d 742 (Fla. 4th DCA 2015) ; Rentel v. Rentel , 124 So.3d 993 (Fla. 4th DCA 2013) (per curiam); Mondello v. Torres , 47 So.3d 389 (Fla. 4th DCA 2010) ; Aguirre v. Aguirre , 985 So.2d 1203 (Fla. 4th DCA 2008) ; Dorsett v. Dorsett , 902 So.2d 947 (Fla. 4th DCA 2005).

Our holding in Farghali conflicts with these earlier decisions. As the majority correctly notes, a panel of this Court is bound by the decision of an earlier panel. Thus, en banc review is needed to resolve this intra-district conflict.

ii. The Former Husband Waived His Challenge to the Court's Alimony Award

Generally, this Court reached the correct conclusion in Farghali when we adopted the rule used by the First District in Simmons . See Farghali , 187 So.3d at 339 ("[A] party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing (quoting Simmons , 979 So.2d at 1064 ) ); see also Owens v. Owens , 973 So.2d 1169 (Fla. 1st DCA 2007) ).

That rule tracks the rule applied by most of the courts that have addressed the issue. See, e.g. , Esaw , 965 So.2d at 1261 ; Owens , 973 So.2d at 1169 ; Mathieu v. Mathieu , 877 So.2d 740 (Fla. 5th DCA 2004) (per curiam); Broadfoot v. Broadfoot , 791 So.2d 584 (Fla. 3d DCA 2001).

For instance, in Broadfoot , the appellant argued for reversal of the circuit court's judgment because the court failed to make the required statutory findings. 791 So.2d at 585. The Third District held that "[i]f the judgment is entered without required findings, then a motion for rehearing should be filed, requesting findings." Id. The court noted that there was no indication the appellant brought the error to the attention of the circuit court, and it generally "decline[d] to consider claims which were not presented in the first instance in the trial court." Id. (citation omitted). The court held that findings were not required "[w]here, as here, the basis for the award is reasonably clear and supported by the record ...." Id. But this rule was not absolute: the court "reserve[d] the right to reverse on account of an absence of findings (whether the point was raised in the trial court or not) if the absence of the statutory findings frustrate[d] th[e] court's appellate review." Id. (citations omitted).

Later, the Fifth District considered the same issue and adopted the Third District's approach. See Mathieu , 877 So.2d at 741. The Fifth District explained that "[t]he Third District Court of Appeal has taken the approach that a party cannot complain on appeal about inadequate findings in a dissolution case unless the alleged defect was brought to the trial court's attention in a motion for rehearing." Id. (citing Broadfoot , 791 So.2d at 584 ). The court adopted this "sensible" approach, holding that it would consider "the lack of adequate findings as an unpreserved error unless previously brought to the trial court's attention." Id. (footnote omitted); see also Anaya v. Anaya , 987 So.2d 806, 807 (Fla. 5th DCA 2008) ("A party may not complain about 'inadequate findings in a dissolution case unless the alleged defect was brought to the trial court's attention in a motion for rehearing.' " (quoting Mathieu , 877 So.2d at 741 ) ).

In a footnote in Mathieu , the Fifth District included a caveat:

Our decision is subject to one caveat: Since the principal reason for findings of fact in these cases is to allow for meaningful appellate review in this very important area of the law, if the court determines on its own that its review is hampered, we may, at our discretion, send the case back for findings.

877 So.2d at 741 n.1. Two years later, the Fifth District applied this caveat again in Matajek v. Skowronska , 927 So.2d 981 (Fla. 5th DCA 2006). In Matajek , the Fifth District found the basis for the circuit court's award to be "not reasonably clear" which, the court held, required the judgment to be reversed for insufficient findings. Id. at 988.

The First District adopted the Broadfoot and Mathieu holdings in Owens . In Owens , the appellant argued the court's judgment should be reversed for failure to make the required findings. 973 So.2d at 1170. But the appellant "never challenged the adequacy of the findings in a motion for rehearing or by any other means available in the trial court." Id. The First District "determine[d] that this issue was not properly preserved for appellate review." Id. ; see also Mize v. Mize , 45 So.3d 49, 49 (Fla. 1st DCA 2010) (footnote omitted) ("[B]ecause the Husband failed to challenge the insufficiency of the fact findings through a motion for rehearing or by any other post-judgment pleading, he has failed to preserve these issues for appellate review."). Owens is the case the First District cited in Simmons , and Simmons includes the rule we adopted in Farghali .

This rule adheres to the general proposition that our review is limited to "only those questions which were before the trial court and upon which a ruling adverse to the appealing party was made." State v. Barber , 301 So.2d 7, 9 (Fla. 1974) (citations omitted). As a result, we "will not consider points raised for the first time on appeal." Castor v. State , 365 So.2d 701, 703 (Fla. 1978) (citing Dorminey v. State , 314 So.2d 134 (Fla. 1975) ).

The requirement that a party preserve an issue is based on fairness to the litigants, the court, and the judicial system. City of Orlando v. Birmingham , 539 So.2d 1133, 1134 (Fla. 1989) ("The requirement of a timely objection is based on practical necessity and basic fairness in the operation of the judicial system."). By timely raising an issue, the litigant allows the judge an opportunity to correct the error. Id. (citing Castor , 365 So.2d at 703 ). The litigant also affords the opposing party a chance to correct the error.

Thus, generally, preservation is required. As the First District explained:

It is difficult to overemphasize the importance, absent fundamental error, of preserving issues and arguments before asking an appellate court to reverse a trial court's final judgment. The importance of this principle is too often not appreciated, and appellate courts are constrained, as we are here, to affirm orders which otherwise might have been reversed.

Pensacola Beach Pier, Inc. v. King , 66 So.3d 321, 326 (Fla. 1st DCA 2011).

An exception to the preservation requirement exists when the purported error is fundamental. F.B. v. State , 852 So.2d 226, 229 (Fla. 2003) ("The sole exception to the contemporaneous objection rule applies where the error is fundamental." (citing J.B. v. State , 705 So.2d 1376, 1378 (Fla. 1998) ) ). But "[t]here is no general rule that the lack of statutorily required findings constitutes fundamental error." Esaw , 965 So.2d at 1265. The Florida Supreme Court determined the failure to make required written findings is not fundamental error. State v. Townsend , 635 So.2d 949, 959 (Fla. 1994) ("[T]he failure of a trial judge to make sufficient findings under the statute, in and of itself, does not constitute fundamental error." (citing Hopkins v. State , 632 So.2d 1372 (Fla. 1994) ; Seifert v. State , 616 So.2d 1044 (Fla. 2d DCA), approved in relevant part , 626 So.2d 207 (Fla. 1993) ; Jones v. State , 610 So.2d 105 (Fla. 3d DCA 1992) ) ). We should, and must, reach the same result.

The majority agrees the failure to make the required findings is not fundamental error. Op. 794. After agreeing there is no fundamental error, and without explanation, the majority states that the Court will adhere to our prior precedent that does not require a party to raise the issue. This conclusion is apparently based on the majority's statements that "dissolution of marriage cases are unlike other civil litigation," and that "it is equally, if not more, important" that a court make findings in a dissolution case than in other cases where findings are required. Op. 793-94. But an exception to the preservation requirement exists for fundamental error, not error this Court decides in a particular case to be important. An error is fundamental or not. In this case, it is not.

In almost every situation, we require parties to first raise issues before the circuit court to preserve the issues for appeal, and we should not treat the situation here differently. Thus, to preserve the issue for purposes of appeal, generally a party must first challenge in the circuit court a purported lack of adequate findings to support an award in a dissolution case. The party can raise the issue in a motion for rehearing or through other means authorized by the rules. Raising it on appeal in the first instance should not be permitted.

Conclusion

An issue should be presented to the circuit court before being raised on appeal. Applying the rule here, the Former Husband did not bring the lack of findings to the circuit court's attention through a motion for rehearing or in any other manner. Thus, we should affirm on this issue and recede from our earlier case law requiring a contrary result.

Gerber, C.J., Ciklin, Levine, and Forst, JJ., concur.

      Kuchera v. Kuchera , 230 So.3d 135, 139 (Fla. 4th DCA 2017) followed Farghali . To the extent Kuchera departs from our established precedent, we also recede from it.

      I agree with the majority that reversal is required because of the circuit court's denial of the Former Husband's requests to conduct a vocational examination.

      We have since applied Farghali in Kuchera v. Kuchera , 230 So.3d 135, 139 (Fla. 4th DCA 2017).

      Broadfoot and Mathieu include a limited caveat allowing the court to remand in those rare situations when appellate review is hampered. We should consider adopting a similar caveat but one limited to those situations when our review is hampered in cases involving child support and parental responsibility and time sharing.


author: Kuntz, J. Taylor, J., dissenting.

text:
    IMERYS TALC AMERICA, INC. f/k/a Luzenac America, Inc., Appellant, v. Judith RICKETTS, Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc. and Publix Super Markets, Inc., Appellees.
    No. 4D17-3815
    District Court of Appeal of Florida, Fourth District.
    [December 19, 2018]
    David M. Gersten, Joseph A. Sacher and Christopher A. Noel of Gordon Rees Scully Mansukhani LLP, Miami, for appellant.
    David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Jupiter, and Todd R. Falzone and Karina D. Rodrigues of Kelly Uustal, PLC, Fort Lauderdale, for appellee Judith M. Ricketts.
   Kuntz, J.

Imerys Talc America, Inc. appeals an order denying its motion to dismiss a products liability action for lack of personal jurisdiction. Imerys is a Delaware corporation with its principal place of business in California. Imerys did not have contacts with Florida, either generally or specifically related to the actions leading to the complaint. As a result, Imerys is not subject to personal jurisdiction in Florida, and we reverse the circuit court's order.

Background

Judith Ricketts filed a seven-count complaint against Johnson & Johnson, Johnson & Johnson Companies, Inc., Imerys, and Publix Super Markets, Inc. Ricketts sought "recovery for damages as a result of developing ovarian cancer, which was directly and proximately caused by the wrongful conduct of the Defendants, the unreasonably dangerous and defective nature of talcum powder, and the associated effects of developing ovarian cancer."

Imerys moved to dismiss for lack of personal jurisdiction. Relevant to the personal jurisdiction issue, the complaint stated:

At all material times, the Defendant, IMERYS TALC AMERICA, INC. F/K/A LUZENAC AMERICA, INC., was and is a Delaware corporation, with its principal place of business in California.
At all material times, the Defendant, IMERYS TALC AMERICA, INC. F/K/A LUZENAC AMERICA, INC. was engaged in the business of mining and distributing talcum powder for use in talcum powder based products, including the PRODUCT. Imerys Talc is the successor or continuation of Luzenac America, Inc., and Imerys Talc America, Inc. is legally responsible for all liabilities incurred when it was known as Luzenac America, Inc.
* * *
At all material times, all above Defendants were engaged in the research, development, manufacture, design, testing, sale and marketing of the PRODUCT, and placed such products into the stream of commerce with knowledge and intent that such products be sold in the State of Florida.
* * *
The Defendant, IMERYS TALC AMERICA, INC. F/K/A LUZENAC AMERICA, INC., has substantial and not isolated contact with the State of Florida and is subject to the general jurisdiction of the Florida courts.

Imerys argued the complaint failed to establish general or specific personal jurisdiction over it. In support of its lack of contacts with Florida, Imerys also filed an affidavit of its director of engineering and quality.

The affidavit stated that Imerys "does not mine talc in Florida," "does not directly sell talc to [Johnson & Johnson] in Florida," "does not directly ship talc to [Johnson & Johnson] in Florida," and "does not directly distribute talc to [Johnson & Johnson] in" the state. Ricketts did not file an affidavit in response to Imerys's motion to dismiss or in support of personal jurisdiction.

The circuit court held a hearing on Imerys's motion and concluded the hearing by stating that "this Court will follow the Florida Supreme Court and not the Supreme Court of the United States in this particular case." The court issued an order denying Imerys's motion.

Analysis

Determining whether a court can exercise personal jurisdiction over a defendant involves a two-step inquiry. Venetian Salami Co. v. Parthenais , 554 So.2d 499, 502 (Fla. 1989) (citing Unger v. Publisher Entry Serv., Inc. , 513 So.2d 674, 675 (Fla. 5th DCA 1987), rev. denied , 520 So.2d 586 (Fla. 1988) ). The court must determine whether the allegations in the complaint bring the action within Florida's long-arm statute and, if so, whether sufficient "minimum contacts" exist between the non-resident defendant and Florida to satisfy due process. Id. (citing Unger , 513 So.2d at 675 ).

Personal jurisdiction can be general or specific. Rolls-Royce, PLC v. Spirit Airlines, Inc. , 239 So.3d 709, 713 (Fla. 4th DCA 2018) (citing Marina Dodge, Inc. v. Quinn , 134 So.3d 1103, 1106-07 (Fla. 4th DCA 2014) ).

General personal jurisdiction allows a court to hear any claims against a foreign corporation. Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (citation omitted). It exists when the defendant's "affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." Id. (citation omitted); see also Daimler AG v. Bauman , 571 U.S. 117, 138, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) (In Daimler , the plaintiffs asked the Court to "approve the exercise of general jurisdiction in every State in which a corporation 'engages in a substantial, continuous, and systematic course of business.' That formulation, [the Court held], is unacceptably grasping.").

Ricketts alleged in her complaint that Imerys was subject to the general personal jurisdiction of the Florida courts. But in response to Imerys's motion to dismiss, Ricketts argued Florida courts can exercise specific personal jurisdiction over Imerys. On appeal, Ricketts explains that she "argued to the trial court that Imerys is subject to specific jurisdiction, not general jurisdiction." Because of these concessions, we proceed to the specific jurisdiction analysis.

"Specific personal jurisdiction exists when 'the alleged activities or actions of the defendant are directly connected to the forum state.' " Rolls-Royce, PLC , 239 So.3d at 713 (quoting Caiazzo v. Am. Royal Arts Corp. , 73 So.3d 245, 250 (Fla. 4th DCA 2011) ). When analyzing specific personal jurisdiction, the analysis "focuses on 'the relationship among the defendant, the forum, and the litigation.' " Keeton v. Hustler Magazine, Inc. , 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) (quoting Shaffer v. Heitner , 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) ).

The Supreme Court has explained that for specific personal jurisdiction to be appropriate, "the defendant's suit-related conduct must create a substantial connection with the forum State." Walden v. Fiore , 571 U.S. 277, 284, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014). And the connection must arise out of the defendant's own activities, not those of the plaintiff or a third party. Id. (citations omitted).

The Supreme Court applied this principle in World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), and rejected the "assertion that a consumer 's unilateral act of bringing the defendant's product into the forum State was a sufficient constitutional basis for personal jurisdiction over the defendant." Asahi Metal Indus. Co., Ltd. v. Superior Court of California, Solano County , 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (discussing World-Wide Volkswagen Corp. , 444 U.S. at 295-96, 100 S.Ct. 559 ).

Later, the California Supreme Court held that specific personal jurisdiction was appropriate because some valves sold by Asahi, a Japanese manufacturer, were in California. Id. at 110-11, 107 S.Ct. 1026. The United States Supreme Court unanimously disagreed, with none of the three separate opinions garnering five votes. A plurality opinion written by Justice O'Connor explained that the "substantial connection" required between a forum state and the defendant "must come about by an action of the defendant purposefully directed toward the forum State." Id. at 112, 107 S.Ct. 1026 (plurality opinion) (emphasis removed) (citations omitted). The Court stated in the plurality opinion that "[t]he placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State." Id. (plurality opinion).

The test set forth in Justice O'Connor's plurality opinion is known as the "stream-of-commerce" test. Even though the Court's opinion left many questions unanswered, the Court did not address the test again until fifteen years later. See generally J. McIntyre Mach., Ltd. v. Nicastro , 564 U.S. 873, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011). "The decades following Asahi did little to clarify the stream-of-commerce confusion," and in some respects J. McIntyre "did little to refine the lines originally blurred in Asahi. " Jessica Jeffrey, The Stream of Commerce Flows On , 46 SUFFOLK U.L. REV. 137, 137, 145 (2013).

In J. McIntyre , the New Jersey Supreme Court held that the courts of that state "can exercise jurisdiction over a foreign manufacturer of a product so long as the manufacturer 'knows or reasonably should know that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states.' " 564 U.S. at 877, 131 S.Ct. 2780 (citing Nicastro v. McIntyre Mach. Am., Ltd. , 201 N.J. 48, 987 A.2d 575, 591, 592 (2010) ). Six justices on the Supreme Court agreed to reverse the holding.

A plurality opinion written by Justice Kennedy and joined by three justices explained that "[a]s a general rule, the exercise of judicial power is not lawful unless the defendant 'purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.' " Id. at 877, 131 S.Ct. 2780 (plurality opinion) (quoting Hanson v. Denckla , 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) ). There may be exceptions to this general rule, "[b]ut the general rule is applicable in this products-liability case, and the so-called 'stream-of-commerce' doctrine cannot displace it." Id. at 877-78, 131 S.Ct. 2780 (plurality opinion). Justice Kennedy wrote that "[t]he defendant's transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State." Id. at 882, 131 S.Ct. 2780 (plurality opinion).

The other theory advanced focuses on whether a defendant could have foreseen that the product would flow into the forum state. Asahi Metal , 480 U.S. at 117, 107 S.Ct. 1026 (Brennan, J., concurring). But the plurality opinion in J. McIntyre recognized that limiting the analysis to foreseeability is flawed. As an example, allowing a state to exercise personal jurisdiction only because an item is later sold into a state could have unforeseen, and unconstitutional, consequences:

The owner of a small Florida farm might sell crops to a large nearby distributor, for example, who might then distribute them to grocers across the country. If foreseeability were the controlling criterion, the farmer could be sued in Alaska or any number of other States' courts without ever leaving town.

J. McIntyre , 564 U.S. at 885, 131 S.Ct. 2780 (plurality opinion).

Instead of foreseeability, "[t]he principal inquiry in cases of this sort is whether the defendant's activities manifest an intention to submit to the power of a sovereign." Id. at 882, 131 S.Ct. 2780 (plurality opinion). This requires that the defendant intentionally avail itself of the privilege of doing business in the forum state. Id. (plurality opinion) (citations omitted).

Here, Imerys produced a component in one state (not Florida) and sold it to a different company in a different state. It directed no action or activities to Florida.

These facts, established through an affidavit filed by Imerys, are enough to refute the jurisdictional allegations in the complaint. Ricketts was required to file a counter-affidavit to support her position. See Airamid Health Servs., LLC v. Anita Sechler Pers. , 134 So.3d 550, 554 (Fla. 5th DCA 2014) (When a defendant files an affidavit refuting the jurisdictional allegations in a complaint, "the burden then shifts to the plaintiff to show, by counter-affidavit or other evidence, the basis upon which jurisdiction is proper." (footnote and citation omitted) ); Dev. Corp. of Palm Beach v. WBC Constr., L.L.C. , 925 So.2d 1156, 1160 (Fla. 4th DCA 2006) ("When, however, the defendant files affidavits contesting the factual assertions of jurisdiction or the existence of minimum contacts, the burden then shifts to the plaintiff to file counter-affidavits supporting its position.").

An evidentiary hearing is not required, however, when the plaintiff fails to file a counter-affidavit to refute the defendant's affidavit. Dev. Corp. of Palm Beach , 925 So.2d at 1160 ("If those affidavits conflict, then it is incumbent on the trial court to hold a hearing to resolve the conflicts in the evidence and determine the jurisdictional issue.").

Thus, because Ricketts did not file a counter-affidavit, an evidentiary hearing was not required. See Hilltopper Holding Corp. v. Estate of Cutchin ex rel. Engle , 955 So.2d 598, 602 (Fla. 2d DCA 2007) ("If the plaintiff fails to come forward with sworn proof to refute the allegations in the defendant's affidavit and to prove jurisdiction, the defendant's motion to dismiss must be granted." (citations omitted) ); Tobacco Merchants Ass'n of U.S. v. Broin , 657 So.2d 939, 942 (Fla. 3d DCA 1995) ("The plaintiffs' failure to respond with a counter-affidavit or other sworn proof establishing the basis for the exercise of personal jurisdiction defeated the exercise" of personal jurisdiction over the defendant. (footnote omitted) ).

Finally, Ricketts argues Ford Motor Co. v. Atwood Vacuum Machine Co. , 392 So.2d 1305 (Fla. 1981), requires a contrary result. That case held that "the fact that a nonresident manufactures a component part outside the state and takes no part in the sale, distribution, or marketing of the finished product in the state is no basis for a limitation on jurisdiction." Id. at 1313 (citations omitted). But Atwood predates all of the recent controlling opinions from the United States Supreme Court and from the Florida Supreme Court itself. See, e.g. , Grogan v. Archer , 669 So.2d 289, 294 n.5 (Fla. 5th DCA 1996) ("[T]he Atwood decision has been placed in doubt by Tomashevsky v. Komori Printing Machinery Co., Ltd. , 715 F.Supp. 1562, 1566 (S.D. Fla. 1989) and it predates important, subsequent decisions such as Venetian Salami. "); Smith v. Trans-Siberian Orchestra , 689 F.Supp.2d 1310, 1315 (M.D. Fla. 2010) ("[T]he holding in Atwood was reached prior to the Supreme Court's dispositive decisions regarding personal jurisdiction of non-resident defendants in Burger King Corp. v. Rudzewicz , 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 [ ] (1985) and Asahi Metal Industry Co. v. Superior Court , 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 [ ] (1987).").

Our holding adheres to Asahi Metal , Nicastro , and cases from other jurisdictions applying those cases. For example, the manufacturer of a battery sold to a company for insertion in a product, later sold to Costco for sale in all fifty states, is not subject to a state's jurisdiction simply because Costco sells the product there. Commerce & Indus. Ins. Co. v. Durofix, Inc. , No. CV 16-00111 LEK-RLP, 2018 WL 1865868, at *4 (D. Haw. Apr. 18, 2018) (rejecting the argument that E-One was subject to specific personal jurisdiction because, according to the plaintiff, "when E-One sold 300,000 batteries to Mobiletron, E-One knew Mobiletron planned to ship the assembled RL435 LED Lights to Costco, which would distribute the RL435 LED Lights in Hawai'i"). Nor is it sufficient to sell products that merely end up in a state. Holland Am. Line Inc. v. Wartsila N. Am., Inc. , 485 F.3d 450, 459 (9th Cir. 2007) ("Holland America relies on the proposition that those companies sold products or sponsored web marketing for products that ended up in Washington. Neither is sufficient to sustain jurisdiction here.").

Other federal courts have held that mere awareness that a component would be in a product and sold in a forum cannot, without more, establish personal jurisdiction. See, e.g. , Amburgey v. Atomic Ski USA, Inc. , No. 2:06-CV-149-GZS, 2007 WL 1464380, at *4 (D. Me. May 17, 2007) ("Even assuming that Atomic Austria had knowledge that the stream of commerce would take its products into Maine, mere awareness is insufficient to constitute purposeful availment."); Adell Corp. v. Elco Textron, Inc. , 51 F.Supp.2d 752, 755 (N.D. Tex. 1999) (The court found no personal jurisdiction over Elco and explained that "Elco supplies General Motors with components of the allegedly infringing device. General Motors combines the components from Elco with components from others to form its spare tire locking device. General Motors then installs the device on pickup trucks and ships some of those trucks to Texas. Elco has no input on General Motors' distribution, it provides no warranties to Texas customers, it has no advertising in Texas, and it has no direct sales of the accused device in Texas."); Rodriguez v. Fullerton Tires Corp. , 115 F.3d 81, 85 (1st Cir. 1997) ("Even assuming that CMSC had specific knowledge that the stream of commerce would move its tire rims into Puerto Rico-and there is neither evidence nor allegation to that effect-this awareness alone would not be enough to constitute the purposeful availment which is necessary for a showing of minimum contacts.").

A manufacturer's sale of a component to a party in a second state is insufficient, without more, to subject the manufacturer to the jurisdiction of a third state where the completed product was ultimately sold. Windsor v. Spinner Indus. Co., Ltd. , 825 F.Supp.2d 640, 643 (D. Md. 2011) ("[F]oreign businesses whose products are sold in the forum State by third parties cannot be subjected to personal jurisdiction in the forum merely because they should have known, knew, or even expected their products to reach that forum." (citing J. McIntyre , 564 U.S. at 890-91, 131 S.Ct. 2780 ) (Breyer, J., concurring in judgment); Lesnick v. Hollingsworth & Vose Co. , 35 F.3d 939, 946 (4th Cir. 1994) ) ).

Here, because Imerys has no contacts with Florida, Florida courts cannot exercise specific jurisdiction over it.

Conclusion

We reverse the circuit court's order and remand with instructions to dismiss the cause of action against Imerys for lack of personal jurisdiction.

Reversed and remanded.

Klingensmith, J., concurs.

Taylor, J., dissents with opinion.

Taylor, J., dissenting.

I respectfully dissent. I would affirm the order on appeal because Imerys' affidavit failed to dispute the key jurisdictional allegations of the plaintiff's complaint, and those allegations demonstrate that Florida's assertion of personal jurisdiction over Imerys is constitutional. Because the plaintiff's undisputed allegations establish that Imerys placed its talc into the stream of commerce over a period of decades with the knowledge and intention that it would be sold in Florida as the main ingredient in Johnson & Johnson's widely-available baby powder, Imerys had sufficient minimum contacts with Florida in order to satisfy due process. Moreover, the maintenance of the suit in Florida does not offend traditional notions of fair play and substantial justice.

The relevant jurisdictional allegations in the plaintiff's complaint are as follows. The plaintiff alleged that, for most of her life, she purchased Johnson & Johnson baby powder in Broward County, Florida. She alleged that she used the powder "on a daily basis for multiple decades prior to her diagnosis of ovarian cancer in 2013." She also alleged that, at all material times, Imerys mined and sold talc to Johnson & Johnson, and that Imerys knew Johnson & Johnson was packaging and selling the talc to consumers as baby powder. She further alleged that, at all material times, Imerys "placed such products into the stream of commerce with knowledge and intent that such products be sold in the State of Florida." Finally, she alleged that Johnson & Johnson and Imerys played an integral role in a trade group called the Talc Interested Party Task Force, an anti-regulatory organization formed to defend talc use in response to scientific evidence finding talc to be a carcinogen. Imerys' affidavit disputed none of those material allegations.

Due process requires that a nonresident have sufficient minimum contacts with the forum state such that the maintenance of a suit "does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks omitted). Critical to the due process analysis is whether the nonresident'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, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

For a nonresident defendant to anticipate being haled into a Florida court, "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King Corp. v. Rudzewicz , 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Hanson v. Denckla , 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) ). "The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State." World-Wide Volkswagen , 444 U.S. at 297-98, 100 S.Ct. 580. Thus, "if the sale of a product ... is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States ...." Id. at 297, 100 S.Ct. 580.

The United States Supreme Court has twice attempted to clarify World-Wide Volkswagen 's stream-of-commerce doctrine, but has yet to issue a majority opinion as to the proper standard for determining when personal jurisdiction in the forum state can be premised upon a nonresident's placement of goods into the stream of commerce. See J. McIntyre Mach., Ltd. v. Nicastro , 564 U.S. 873, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011) ; Asahi Metal Indus. Co. v. Superior Court of Cal., Solano Cty. , 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).

In Asahi Metal , the Supreme Court unanimously held that it would be unreasonable and unfair for a California court to exercise personal jurisdiction over a Japanese manufacturer of tire valve stems with respect to a foreign company's indemnification claim against the manufacturer arising out of a motorcycle accident, given the international context, the heavy burden on the foreign defendant, and the slight interests of the plaintiff and the forum state. 480 U.S. at 114-16, 107 S.Ct. 1026. However, the fractured court did not produce a majority opinion on the question of when minimum contacts may be premised on a stream-of-commerce theory. See id. at 111-12, 107 S.Ct. 1026 (O'Connor, J., plurality opinion) (endorsing the view that the due process clause requires "something more than that the defendant was aware of its product's entry into the forum State through the stream of commerce in order for the State to exert jurisdiction over the defendant"); id. at 117, 107 S.Ct. 1026 (Brennan, J., concurring in part and concurring in judgment) ("The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale. As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise."); id. at 122, 107 S.Ct. 1026 (Stevens, J., concurring in part and concurring in the judgment) ("Whether or not this conduct rises to the level of purposeful availment requires a constitutional determination that is affected by the volume, the value, and the hazardous character of the components.").

The Supreme Court made a second attempt to clarify the stream-of-commerce doctrine in Nicastro , but that case produced yet another fragmented decision. There, a plaintiff seriously injured his hand while using a metal-shearing machine, and later brought suit in New Jersey against the machine's British manufacturer. Nicastro , 564 U.S. at 878, 131 S.Ct. 2780. The relevant jurisdictional facts were that: (1) an independent distributor on one occasion sold and shipped one machine to the plaintiff's employer in New Jersey; (2) the British manufacturer permitted the independent distributor to sell its machines to anyone in America; (3) and the British manufacturer attended trade shows in major American cities. Id. at 888, 131 S.Ct. 2780 (Breyer, J., concurring). On those facts, the Supreme Court held that it was not constitutionally proper for New Jersey to exercise jurisdiction over the British manufacturer. Id.

Justice Kennedy's plurality opinion, joined by three other justices, took the position that a "[t]he defendant's transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State." Id. at 882, 131 S.Ct. 2780 (Kennedy, J., plurality opinion).

By contrast, Justice Breyer's concurring opinion, joined by Justice Alito, rejected "the plurality's seemingly strict no-jurisdiction rule." Id. at 890, 131 S.Ct. 2780 (Breyer, J., concurring). Instead, Justice Breyer concluded that "the outcome of this case is determined by our precedents." Id. at 887, 131 S.Ct. 2780. Justice Breyer found that the contacts between the British manufacturer and New Jersey were not constitutionally sufficient to support New Jersey's exercise of personal jurisdiction, explaining that "[n]one of our precedents finds that a single isolated sale, even if accompanied by the kind of sales effort indicated here, is sufficient." Id. at 888, 131 S.Ct. 2780.

Justice Breyer reasoned that all of the competing tests from Asahi Metal had "strongly suggested that a single sale of a product in a State does not constitute an adequate basis for asserting jurisdiction over an out-of-state defendant, even if that defendant places his goods in the stream of commerce, fully aware (and hoping) that such a sale will take place." Id. at 888-89, 131 S.Ct. 2780. However, Justice Breyer did not affirmatively adopt any of the standards from Asahi Metal , and instead adhered strictly to Supreme Court precedents and the "limited facts" of the case. Id. at 889-93, 131 S.Ct. 2780.

In the present case, the majority relies heavily upon Justice Kennedy's plurality opinion in Nicastro , effectively treating it as controlling precedent. However, "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks v. United States , 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotation marks omitted). Thus, under the rule of Marks , Justice Breyer's concurring opinion furnished the narrowest grounds for the Nicastro decision and represents the holding of the Court.

The narrow rulings of Nicastro and Asahi Metal do not alter existing Florida precedents holding that a nonresident manufacturer who serves Florida's market by "continuous and systematic activity," even when done indirectly through others, is subject to the jurisdiction of Florida courts. See Ford Motor Co. v. Atwood Vacuum Mach. Co. , 392 So.2d 1305, 1307, 1310-13 (Fla. 1981) (holding that a nonresident manufacturer of component parts in Ford vehicles, who knew that Ford automobiles would be shipped to Florida and sold, was subject to jurisdiction in Florida: "Continuous and systematic activities provide a reasonable basis for the assertion of jurisdiction.... [T]he fact that a nonresident manufactures a component part outside the state and takes no part in the sale, distribution, or marketing of the finished product in the state is no basis for a limitation on jurisdiction.... [The manufacturer's] lack of direct presence and activity within the borders of Florida is no bar to our holding that the minimum contacts test of International Shoe is met.") (italics added); McHugh v. Kenyon , 547 So.2d 318, 319 (Fla. 4th DCA 1989) (holding that Florida had jurisdiction over a nonresident manufacturer of ladders whose products were "placed into the stream of commerce" and who had "a reasonable expectation that large numbers" would be purchased here: "A manufacturer that produces hundreds of thousands of product units that are distributed over a five-year period in the United States, of which at least 6,000 were marketed in Florida, should reasonably anticipate being sued in this state in connection with product defects causing injury."); Louis Winer Co., Inc. v. San Francisco Mercantile Co., Inc. , 501 So.2d 171, 173 (Fla. 4th DCA 1987) (holding that Florida obtained personal jurisdiction over a nonresident manufacturer of component parts of a nightgown where it was undisputed that "the movement of these products into Florida was systematic and continuous").

As this court stated in Louis Winer : "[P]ersonal jurisdiction may be asserted over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State, but not where the product's presence in that state is a single, isolated occurrence." 501 So.2d at 173 (internal quotation marks omitted). This statement of law is derived from World-Wide Volkswagen and is consistent with Justice Breyer's concurring opinion in Nicastro , which represents the most recent controlling opinion from the United States Supreme Court on this topic.

Contrary to the majority's suggestion in this case, neither the United States Supreme Court, nor the Florida Supreme Court, has ever overruled Atwood or its progeny. The majority cannot sidestep clear precedents from the Florida Supreme Court and this court by relying upon nonbinding plurality opinions of the United States Supreme Court. While Atwood predates other important decisions on personal jurisdiction, the actual holdings of those more recent decisions cannot be said to have overruled Atwood. Thus, the panel in this case is bound by Atwood and this court's subsequent decisions applying Atwood. See Hoffman v. Jones , 280 So.2d 431, 440 (Fla. 1973) (holding that "a District Court of Appeal does not have the authority to overrule a decision of the Supreme Court of Florida"); Carr v. Carr , 569 So.2d 903, 903 (Fla. 4th DCA 1990) (explaining that "we must follow the law of our own cases until we are overruled or until we recede from them").

Because this court is bound by Atwood and its progeny, the majority's reliance upon post- Nicastro cases from other jurisdictions is misplaced. In any event, while the majority cites cases from other jurisdictions applying a narrow conception of the stream-of-commerce doctrine, the stream-of-commerce case law from other jurisdictions is hardly uniform. Indeed, some out-of-state cases have found the exercise of personal jurisdiction to be proper where a nonresident defendant placed its products into the stream of commerce with the reasonable expectation that substantial sales would take place in the forum state. See, e.g. , Ainsworth v. Moffett Eng'g, Ltd. , 716 F.3d 174, 179 (5th Cir. 2013) (holding that Mississippi's exercise of personal jurisdiction over an Irish forklift manufacturer in a products liability action did not violate the manufacturer's due process rights, as the manufacturer could have reasonably anticipated being haled into court in Mississippi where its distributor sold 203 forklifts, worth about $3,950,000, to customers in Mississippi); State v. LG Elecs., Inc. , 186 Wash.2d 169, 375 P.3d 1035, 1042 (2016) (explaining that Nicatsro "did not foreclose an exercise of personal jurisdiction over a foreign defendant where a substantial volume of sales took place in a state as part of the regular flow of commerce"), cert. denied sub nom. Koninklijke Philips N.V. v. Washington , --- U.S. ----, 137 S.Ct. 648, 196 L.Ed.2d 522 (2017).

Put simply, because the United States Supreme Court has not yet articulated a clear standard for stream-of-commerce cases, the outcome of this case is dictated by precedents from the Florida Supreme Court and this court. The applicable standard, therefore, is that Florida may exercise personal jurisdiction over a nonresident manufacturer who serves Florida's market by "continuous and systematic activity indirectly through others," notwithstanding the manufacturer's "lack of direct presence and activity within the borders of Florida." Atwood , 392 So.2d at 1313. In other words, minimum contacts exist where a nonresident manufacturer places its products into the stream of commerce with the expectation that large quantities of the products would ultimately be sold in the forum state. McHugh , 547 So.2d at 319.

Here, Imerys has not disputed the plaintiff's allegation that Imerys supplied Johnson & Johnson with the talc for its baby powders "at all material times," which the plaintiff alleged was "multiple decades" before she was diagnosed with cancer in 2013. Because Imerys has not disputed the allegation that it placed its talc into the stream of commerce over "multiple decades" with the knowledge and intent that it would be sold in Florida, I would find that the exercise of personal jurisdiction over Imerys does not violate due process.

In short, this is not a case involving a single isolated sale or even multiple occasional sales. The relevant allegations of the plaintiff's complaint have not been disputed, and they demonstrate "continuous and systematic activity" by Imerys to serve the Florida market. Where a nonresident manufacturer's components move through the stream of commerce in a "continuous and systematic" effort to serve the forum state's market, the fact that the manufacturer "takes no part in the sale, distribution, or marketing of the finished product in the state is no basis for a limitation on jurisdiction." Atwood , 392 So.2d at 1310, 1313. Here, the trial court's ruling is supported by the undisputed jurisdictional allegations in the complaint and by governing Florida case law.

We should therefore affirm the order denying the talc company's motion to dismiss this products liability action for lack of personal jurisdiction.

      See also Stevenson v. Cyprus Amax Minerals Co. , No. 6:17-CV-417-ORL-40DCI, 2018 WL 3361884, at *4 (M.D. Fla. July 10, 2018) ("As the foregoing analysis demonstrates, Imerys lacks the requisite 'minimum contacts' with Florida to support the exercise of specific personal jurisdiction."); Jinright v. Johnson & Johnson, Inc. , No. 4:17CV01849 ERW, 2017 WL 3731317, at *4 (E.D. Mo. Aug. 30, 2017) ("The evidence presented by nonresident Plaintiffs does not establish personal jurisdiction over [Imerys], because it does not establish a connection between Plaintiffs' injuries, the products which caused the harm in this matter, and Defendants' contacts in Missouri."); Hodjera v. BASF Catalysts LLC , No. C17-48RSL, 2017 WL 3262501, at *2 (W.D. Wash. July 31, 2017) ("[P]laintiffs fail to satisfy the second prong of the specific jurisdiction test: the requirement that their claim arise out of [Imerys's] purposeful contacts with the forum state."). But see Bors v. Johnson & Johnson , 208 F.Supp.3d 648, 658 (E.D. Pa. 2016) ("Imerys chose to register to do business in Pennsylvania in 2007, years after Pennsylvania enacted its corporate registration statute specifically advising entities of personal jurisdiction arising from their registration to do business. We find, at a minimum, constructive consent to personal jurisdiction over Imerys in Pennsylvania.").

      Likewise, in Southern Wall Products, Inc. v. Bolin , 251 So.3d 935 (Fla. 4th DCA 2018), this court quoted heavily from Justice Kennedy's plurality opinion in Nicastro. To the extent Bolin could be read as suggesting that Justice Kennedy's plurality opinion in Nicastro represents "the current Supreme Court position on minimum contact analysis," id. at 941, I disagree with such a suggestion. However, I believe Bolin was correctly decided on its facts.

      For example, the Florida Supreme Court's decision in Venetian Salami Co. v. Parthenais , 554 So.2d 499 (Fla. 1989), which did not even mention Atwood , did not somehow overrule it. See Puryear v. State , 810 So.2d 901, 905 (Fla. 2002) (proclaiming that the Florida Supreme Court "does not intentionally overrule itself sub silentio").

      This case is readily distinguishable from Stevenson v. Cyprus Amax Minerals Co. , 617CV417ORL40DCI, 2018 WL 3361884, at *1 (M.D. Fla. July 10, 2018), cited by the majority. There, the plaintiff claimed to have been exposed to asbestos-contaminated talc powder between 1942 and 1985, but the evidence showed that Imerys' predecessor supplied Johnson & Johnson with talc for just one month in 1980. By contrast, in this case, the plaintiff has alleged "multiple decades" of exposure to Imerys' talc.