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    Christy Lee ESTES, etc., et al., Appellants, v. Jennifer RODIN, et al., Appellees.
    No. 3D17-1201
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Coral Reef Law Offices, P.A., and Lori K. Weems, Tallahassee and Nathan D. Clark, Palmetto Bay, for appellants.
    Wicker Smith O'Hara McCoy & Ford, P.A., and Alyssa M. Reiter (Fort Lauderdale), for appellee Jennifer Rodin; Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, and Sean M. McCleary and Addison J. Meyers, Miami, for appellee Robert Nicholl; Cole, Scott & Kissane, P.A., and Melinda S. Thornton, Miami, for appellee David Brown.
    Almazan Law, P.A., and Lianet Rodriguez, Miami, Johanna Castellon-Vega, and Alexander P. Almazan, for Brad Lamm as amicus curiae.
    Before LAGOA, LOGUE, and SCALES, JJ.
   LAGOA, J.

Appellants Christy Lee "Cali" Estes ("Estes") and The Addictions Academy, LLC ("The Addictions Academy"), a Florida limited liability company (collectively, "Appellants"), appeal from the trial court's order granting Appellees Jennifer Rodin ("Rodin"), Robert Nicholl ("Nicholl"), and David Brown's ("Brown") (collectively, "Appellees") motions to dismiss Appellants' Second Amended Complaint for lack of personal jurisdiction with prejudice. For the reasons set forth below, we affirm the order as to all Appellees.

I. FACTUAL AND PROCEDURAL BACKGROUND

Estes is an addiction specialist who practices intervention, treatment, and coaching, and trains other individuals to do the same in Miami-Dade County. In 2013, Estes established The Addictions Academy, which provides addiction treatment services in person and via the internet both in the United States and internationally. Shortly thereafter, the National Association for Alcoholism and Drug Abuse Counselors ("NAADAC") granted The Addictions Academy's application for "Approved National Education Provider" status.

Appellees also practice in the addiction treatment field. Rodin is a resident of Orange County, California, and founder of Hope Family Interventions, which is headquartered in California. Nicholl is a resident of Orange County, California, and owner of Celebrate a New Life, Inc., which is based in California. Nicholl is also an independent contractor for Hope By The Sea, Inc., a company that does not engage in any business in Florida. Brown is a resident of Johnson County, Kansas, whose sole place of business, Avenues to Recovery Inc., is located in Kansas. Appellees each advertise their services on various websites on the Internet.

Between May 13 and May 25, 2015, Estes and Appellees belonged to a closed Facebook group with over 4000 members titled "Addiction Professional Network Group" (the "closed Facebook group"). On two comment threads in the closed Facebook group, Appellees, as well as Brad Lamm, Ray Estefania, David Wolan, and Edward Saunders (the "codefendants"), posted increasingly combative comments questioning Appellants' credentials and addiction services business, as well as Estes's character. After these comment exchanges, Estes was blocked from accessing the closed Facebook group, but re-accessed the group by borrowing her friend's Facebook login information.

On May 27, 2016, Appellants filed their complaint against Appellees, the NAADAC, and the other codefendants, alleging counts of slander per se against Appellees for their "false and malicious statements" in the closed Facebook group. Appellees each moved to dismiss the complaint as to them individually for lack of personal jurisdiction. On April 10, 2017, Appellants filed their verified Second Amended Complaint, which amended their counts of slander per se to defamation per se and added counts for injunctive relief and violations of Florida's Antirust Act against Appellees. Appellees renewed their motions to dismiss for lack of personal jurisdiction with supporting sworn affidavits.

Rodin

In her sworn affidavit, Rodin attested that she: (1) had "virtually no ties, connections or ongoing obligations within ... Florida"; (2) did "not visit Florida regularly"; (3) did "not have any business associates in Florida," and did "not refer [her] clients to treatment providers in Florida"; (4) did "not have any contracts to which any Florida resident or business entities are parties[ ] [n]or ...call for payment or performance ... in Florida"; (5) did "not own a business, corporation, real property, bank account or anything in ... Florida" nor advertise in Florida; and (6) did "not perform any acts in Florida" concerning Appellants' allegations against her. Rodin only identified one occasion where she visited Florida in the last seven years, which occurred when she dropped off in Florida a client who resided in New York City and then returned to California the same day.

Nicholl

In his sworn affidavit, Nicholl attested that: (1) the companies he owned and worked for did not "engage in any business," "solicit patients," "conduct interventions" in Florida, or "maintain, own or operate a business" or office in Florida; (2) he did "not operate, conduct, engage in, or carry on, a business venture in ... Florida"; (3) he did "not solicit patients or clients for [his] business" nor conduct an intervention in Florida; (4) he was not affiliated with websites specifically targeting patients in Florida; and (5) he did "not own real property or maintain a bank account" nor advertise in Florida.

Brown

In his sworn affidavit, Brown attested that he: (1) did "not own a business or [c]orporation"; (2) he did not maintain a registered agent, office, or license to conduct business in Florida; (3) did not own real property or a bank account in Florida; (4) did not advertise in Florida nor provide services to patients in Florida; (5) had "maintained only isolated contact with individuals and entities domiciled in ... Florida"; and (6) did not perform any acts in Florida with respect to the allegations against him.

In response to Appellees' motions to dismiss and affidavits, Estes filed her own sworn counter-affidavit with the attached comment threads from the closed Facebook Group. Estes attested that she had seen the posts, had privately messaged Appellees "to halt their barrage of social media attacks," and had suffered reputational harm in numerous ways, including the loss of a book deal, denial and termination of certifications in the addiction services field (including the NAADAC), and loss of business associates. Estes further attested that some of the members in the closed Facebook group were addiction industry professionals located in Florida, but did not identify any Florida resident that accessed or viewed the allegedly defamatory comments other than herself. Estes's counter-affidavit also did not contradict or dispute the assertions in Appellees' affidavits.

On July 24, 2017, the trial court held a hearing on Appellees' motions to dismiss. Upon its conclusion, the trial court found that Appellants had satisfied the first prong of the personal jurisdiction test established in Venetian Salami v. Parthenais, 554 So.2d 499, 502 (Fla. 1989), i.e., the Second Amended Complaint alleged sufficient jurisdictional facts (the alleged tortious acts) to bring the action within Florida's long-arm statute. The trial court, however, granted each Appellee's motion to dismiss with prejudice as the trial court found that Appellants failed to satisfy the second prong of Venetian Salami, i.e., whether each Appellee possessed sufficient minimum contacts with Florida to satisfy constitutional due process requirements. This timely appeal ensued.

II. STANDARDS OF REVIEW

We review de novo a trial court's ruling on a motion to dismiss for lack of personal jurisdiction. Kingland Estates, Ltd. v. Davis, 170 So.3d 825, 827 (Fla. 3d DCA 2015) ; Renaissance Health Publ'g., LLC v. Resveratrol Partners, LLC, 982 So.2d 739, 741 (Fla. 4th DCA 2008). We further review a denial of a request for jurisdictional discovery for an abuse of discretion. See Alvarez v. Cooper Tire & Rubber Co., 75 So.3d 789, 793 (Fla. 4th DCA 2011) ("A trial court is given wide discretion in dealing with discovery matters, and unless there is a clear abuse of that discretion, the appellate court will not disturb the trial court's order.").

III. ANALYSIS

It is well-established that two inquires must be made in determining whether a court may exercise personal jurisdiction over a defendant under Florida's long-arm statute. " 'First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient "minimum contacts" are demonstrated to satisfy due process requirements.' " Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989) (quoting Unger v. Publisher Entry Serv., Inc., 513 So.2d 674, 675 (Fla. 5th DCA 1987) ). The constitutional minimum contacts prong "is controlled by United States Supreme Court precedent interpreting the Due Process Clause and imposes a more restrictive requirement" than the long-arm statute. Execu-Tech Bus. Sys. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla. 2000). Both prongs must be satisfied in order to exercise personal jurisdiction over a non-resident defendant. Rollet v. de Bizemont, 159 So.3d 351, 356 (Fla. 3d DCA 2015).

To challenge the allegations of a complaint concerning jurisdiction or to raise a contention of minimum contacts, a defendant must file a legally sufficient affidavit in support of his or her position. Venetian Salami, 554 So.2d at 502 ; Rollet, 159 So.3d at 356. The burden then shifts to the plaintiff to prove via counter-affidavit "the basis upon which jurisdiction may be obtained." Venetian Salami, 554 So.2d at 502. In most cases, the affidavits can be harmonized. However, if the affidavits cannot be reconciled, a limited evidentiary hearing is required in order for the trial court to determine the jurisdictional issue. Venetian Salami, 554 So.2d at 503.

A. Sufficient Jurisdictional Facts Under Florida's Long-arm Statute

We first discuss the trial court's finding that Appellants alleged sufficient jurisdictional facts to bring Appellees within the ambit of Florida's long-arm statute. Based on our review of the record, we conclude that Appellants failed to meet the first prong of Venetian Salami's personal jurisdiction analysis to the extent that the defamation claims are based on Estes herself accessing the allegedly defamatory postings.

Section 48.193(1)(a), Florida Statutes (2017)-the portion of Florida's long-arm statute relevant here-provides that:

A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts:
....
2. Committing a tortious act within this state.

§ 48.193(1)(a) 2., Fla. Stat. We "are required to strictly construe the long-arm statute." Seabra v. Int'l Specialty Imps., Inc., 869 So.2d 732, 733 (Fla. 4th DCA 2004) ; accord Blumberg v. Steve Weiss & Co., 922 So.2d 361, 363 (Fla. 3d DCA 2006). The Florida Supreme Court has held that a defendant need not be physically present in Florida to commit a tortious act under the long-arm statute, as committing a tortious act can occur when a nonresident defendant posts electronic communications on a website accessible and accessed in Florida. Internet Sols. Corp. v. Marshall, 39 So.3d 1201, 1208 (Fla. 2010) (holding that "allegedly defamatory material about a Florida resident placed on the Web and accessible in Florida constitutes an 'electronic communication into Florida' when the material is accessed (or 'published') in Florida"); see also Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla. 2002). The Florida Supreme Court has further concluded that "the nature of the Web ... is fundamentally different from a telephone call, an e-mail, or a letter" as a post on a website is "accessible by anyone with Internet access worldwide." Internet Sols., 39 So.3d at 1216 ; accord Casita, L.P. v. Maplewood Equity Partners L.P., 960 So.2d 854, 857 (Fla. 3d DCA 2007) ("Under Florida law, the tort of defamation is committed in the place where it is published.").

Nevertheless, in order for a defamatory statement to become actionable, the statement must be published or communicated to a third person. See Am. Airlines, Inc. v. Geddes, 960 So.2d 830, 833 (Fla. 3d DCA 2007). "[S]tatements made to the person alleging the defamation do not qualify." Id. In the instant case, Estes asserted in her affidavit that she accessed in Florida each Appellee's allegedly defamatory statements in the closed Facebook group, first on her own personal account, and then through the account of her friend, also a Florida resident. Estes further attested that other Florida residents are members of this Facebook group. To the extent that Appellants allege a defamation based on Estes's own accessing of the allegedly defamatory posts in Florida, these allegations lack the essential element of publication and therefore fail to constitute a tortious act under Florida's long-arm statute section 48.193(1)(a)(2).

Accordingly, we conclude that the Appellants failed to allege sufficient jurisdictional facts to satisfy section 48.193(1)(a)(2) with respect to the allegedly defamatory posts accessed by Estes, herself, in Florida. However, to the extent that Appellants alleged in their Second Amended Complaint that the allegedly defamatory posts were accessed by third parties in Florida, we cannot conclude at this stage that they fail to meet the requirement of the long-arm statute. Although these allegations are conclusory, we must take them as true, as the Appellees' affidavits filed below did not challenge that jurisdictional allegation. As such, we find that those allegations bring Appellees into the ambit of Florida's long-arm statute for purposes of a motion to dismiss. However, as the Florida Supreme Court has emphasized, whether Florida's long-arm statute applies to confer personal jurisdiction is only "the first step of the inquiry." Internet Sols., 39 So.3d at 1216. "The second step is a more restrictive one, precluding suit in any situation where the exercise of jurisdiction over the nonresident defendant would violate due process." Id.

B. Insufficient Minimum Contacts to Satisfy Federal Due Process Requirements

We now turn to the second prong of Venetian Salami, i.e., whether each Appellee individually has sufficient minimum contacts with Florida to satisfy constitutional due process requirements. "The strictures of the Due Process Clause forbid a state court to exercise personal jurisdiction over [a defendant] under circumstances that would offend 'traditional notions of fair play and substantial justice.' " Asahi Metal Indus. Co., v. Superior Court of Cal., Solano Cty., 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ); accord Wendt, 822 So.2d at 1257. "Due process limits on the State's adjudication authority principally protect the liberty of the nonresident defendant-not the convenience of plaintiffs or third parties." Walden v. Fiore, 571 U.S. 277, 284, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014). "A state may exercise specific jurisdiction only over a defendant who has certain 'minimum contacts' with the state." Caiazzo v. Am. Royal Arts Corp., 73 So.3d 245, 251 (Fla. 4th DCA 2011) (quoting Int'l Shoe, 326 U.S. at 316, 66 S.Ct. 154 ). " 'The requirement is satisfied if the defendant purposefully directs activities at Florida and litigation arises out of those activities, or the defendant purposefully avails himself of the privilege of conducting activities within the forum state.' " Renaissance Health, 982 So.2d at 742 (quoting Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716, 719 (Fla. 4th DCA 1998) ). " '[T]he defendant's conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there.' " Burger King Corp v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ). In other words, as the United States Circuit Court of Appeals for the Eleventh Circuit has stated, we must examine in specific personal jurisdiction cases:

(1) whether the plaintiff's claims "arise out of or relate to" at least one of the defendant's contacts with the forum; (2) whether the nonresident defendant "purposefully availed" himself of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state's laws; and (3) whether the exercise of personal jurisdiction comports with "traditional notions of fair play and substantial justice."

Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355 (11th Cir. 2013). We address each factor separately.

1. "Arise out of or Relate to" the Defendant's Contacts with the Forum

First, " 'a fundamental element of the specific jurisdiction calculus is that plaintiff's claim must "arise out of or relate to" at least one of defendant's contacts with the forum.' " Fraser v. Smith, 594 F.3d 842, 850 (11th Cir. 2010) (quoting Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1222 (11th Cir. 2009) ). "In other words, 'our inquiry must focus on the direct causal relationship among "the defendant, the forum, and the litigation." ' " Id. (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).

In the instant case, Appellants alleged that Appellees committed intentional torts against Appellants, a Florida resident and a Florida limited liability company, by posting allegedly defamatory statements in a closed Facebook group. As noted earlier, the posting of an allegedly defamatory electronic communication on a website accessible and accessed in Florida can constitute a tortious act in Florida sufficient to satisfy Florida's long-arm statute. Although satisfying Florida's long-arm statute is not automatically dispositive of the "arise out of or relate to" prong, we conclude that, although limited, there is a direct causal relationship between Appellants' intentional tort claims and Appellees' contacts with Florida. Thus, the first prong of the Due Process analysis has been met.

2. Purposeful Availment

Under the second prong, the nonresident defendant must have " 'purposefully availed' [themselves] of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state's laws." Louis Vuitton, 736 F.3d at 1355. In the context of intentional torts, there are two tests to determine whether purposeful availment has occurred: the "effects test" articulated in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), and the traditional analysis. Louis Vuitton, 736 F.3d at 1356.

(a) Purposeful Availment Under the Calder "Effects Test"

"Under the 'effects test,' a nonresident defendant's single tortious act can establish purposeful availment, without regard to whether the defendant had any other contacts with the forum state," where "the tort: '(1) [was] intentional; (2) [was] aimed at the forum state; and (3) caused harm that the defendant should have anticipated would be suffered in the forum state.' " Id. (quoting Licciardello v. Lovelady, 544 F.3d 1280, 1286 (11th Cir. 2008) ). The United States Supreme Court subsequently clarified that in determining whether the tortious act was expressly aimed at the forum state under the Calder effects test, a "mere injury to a forum resident is not a sufficient connection to the forum ." Walden, 571 U.S. at 289-90, 134 S.Ct. 1115 (emphasis added) ("Regardless of where a plaintiff lives or works, an injury is jurisdictionally relevant only insofar as it shows that the defendant has formed a contact with the forum State."). Thus, the "proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant's conduct connects him to the forum in a meaningful way." Id. at 290, 134 S.Ct. 1115.

[T]he plaintiff cannot be the only link between the defendant and the forum.... To be sure, a defendant's contacts with the forum State may be intertwined with his transactions or interactions with the plaintiff or other parties. But the defendant's relationship to the plaintiff, standing alone, is an insufficient basis for jurisdiction.

Id. at 285-86, 134 S.Ct. 1115 ; see also Aviation One of Fla., Inc. v. Airborne Ins. Consultants (PTY), Ltd, 722 F. App'x 870, 880 (11th Cir. 2018).

We find that none of the Appellees purposefully availed themselves of the privilege of conducting activities within Florida. In her sworn affidavit, Rodin attested that: (1) she had "virtually no ties, connections, or ongoing obligations within ... Florida"; (2) she did not advertise in Florida; (3) she did not own real property or a bank account in Florida; (4) she did not have contracts with any Florida entities or residents; and (5) she only had visited Florida once in the last seven years to drop off one client who resided in New York and worked with Rodin in California and New York. In his sworn affidavit, Nicholl attested that: (1) neither company he worked for engaged in business or solicited patients in Florida; (2) he did not "maintain, own, or operate a business" or office in Florida; (3) he did not have or solicit patients in Florida; and (4) he did not own real property or maintain a bank account in Florida. In his sworn affidavit, Brown attested that: (1) he did not own or maintain a business or registered agent in Florida; (2) he did not have a license to conduct business in Florida; (3) he did not own real property or maintain a bank account in Florida; (4) he did not advertise in Florida; (5) he had maintained only isolated contacts with Florida residents and entities; and (6) he did not provide services to patients in Florida. In her counter-affidavit, Estes failed to contest any of these statements. Thus, because the only link between Appellees and Florida is the alleged injury to Appellants, Appellants failed to satisfy the purposeful availment prong of the due process analysis.

Appellants contend that Florida cases on intentional torts arising in the Internet context are sufficient to establish personal jurisdiction over Appellees. We find these cases inapposite with respect to whether a nonresident defendant has sufficient minimum contacts with Florida to satisfy constitutional due process requirements. In Price v. Kronenberger, 24 So.3d 775 (Fla. 5th DCA 2009), the nonresident defendant sent allegedly defamatory statements in an email to members of a veteran's association claiming that the plaintiff, a Florida resident, went to an unaccredited law school. Id. at 776. The email was addressed to association members generally and did not target Florida residents as recipients, but was received by members throughout the country including some who lived in Florida. Id. The Fifth District Court of Appeal concluded that "[a] complaint that alleges a nonresident committed a tortious act based on communications directed into Florida telephonically, electronically, or in writing sufficiently alleges personal jurisdiction under [Florida's long-arm statute] section 48.193(1)(b)." Id. Because the complaint in Price alleged that the nonresident defendant sent the email to various members of the association, including some living in Florida, the Fifth District Court of Appeal found that the complaint alleged sufficient jurisdictional facts to bring the action within Florida's long-arm statute. Id. The Fifth District Court of Appeal further found that "[b]y publishing the e-mail in Florida and directing the defamatory comments at a Florida resident, [the defendant] established minimum contacts with [Florida]." Id. This conclusion, however, was reached without any analysis regarding whether the exercise of specific personal jurisdiction over a nonresident defendant would violate constitutional due process. We therefore conclude that Price is not persuasive on the question of minimum contacts, as the court in Price conflated the two prongs necessary for a court to exercise personal jurisdiction over a nonresident defendant into a single analysis. As the Florida Supreme Court has recognized, "the federal due process analysis is not built into Florida's long-arm statute." Internet Sols., 39 So.3d at 1207 (emphasis in original). "The mere proof of any one of the several circumstances enumerated in section 48.193 as the basis for obtaining jurisdiction of nonresidents does not automatically satisfy the due process requirements of minimum contacts." Id. (emphasis added) (quoting Venetian Salami, 554 So.2d at 502 ). Because the court in Price did not separately analyze the constitutional due process requirements, we find Price is inapplicable to the instant case.

Appellants also rely on Renaissance Health, where the Fourth District Court of Appeal held that "defamatory comments posted in an internet chat room 'that were targeted to Florida residents' ... in Florida were electronic communications that fell within [the long-arm statute]," satisfying the first prong of the Venetian Salami analysis. 982 So.2d at 742 (quoting Becker v. Hooshmand, 841 So.2d 561, 563 (Fla. 4th DCA 2003) ). The Fourth District also concluded that the requirements of due process had been met. In that regard, the court in Renaissance Health noted that the purpose of defendants' defamatory comments "was to convince consumers to purchase the defendants' products and not the plaintiff's," and found that the $2,101.83 in sales-2.4% of the defendants' total gross domestic sales-was "[s]uch commercial activity within Florida ... sufficient to subject the defendants to jurisdiction [in Florida]." Id. (noting that "where a defendant disparages a competitor's products to enhance its own commercial sales in a state where the competitor has its corporate headquarters, the defendant could 'reasonably anticipate being haled into court there' " (quoting Calder, 465 U.S. at 790, 104 S.Ct. 1482 ) ). The Fourth District specifically distinguished its decision in Renaissance Health from cases involving "passive websites not designed to market products in the purported forum state." Id.

Similarly, in Caiazzo, 73 So.3d at 257, the defendant's allegedly defamatory statements sought "to enhance [his] own commercial sales in Florida," and the record established that the defendant's sales from his website to Florida addresses for a period of four years were 4.35% of his total sales and worth approximately $100,000. While the court in Caiazzo found that there was personal jurisdiction over the defendant, it noted that the "allegations [were] very barebones and probably come as close to being inadequate for jurisdiction as possible without actually crossing that line." Id. at 258. In both Renaissance Health and Caiazzo, the defendant's allegedly defamatory statements were aimed at increasing sales within Florida, thereby satisfying the requirement that the defendant have created jurisdictionally relevant contacts with Florida other than simply the defendant's relationship with the plaintiff. The record here fails to contain any such facts.

Finally, in Tobinick v. Novella, No. 9:14-CV-80781, 2015 WL 328236 (S.D. Fla. Jan. 23, 2015), the court found that a nonresident defendant's publication of allegedly defamatory statements on a website he edited and contributed to caused financial harm to the plaintiff's business in Florida, and thereby satisfied minimum contacts. See id. at *9. In its analysis, the court applied the Calder effects test as set forth by the Eleventh Circuit in Louis Vuitton and Licciardello. See id. at *7-9. Tobinick, however, did not address the Supreme Court's decision in Walden clarifying the Calder effects test. As such, we find Tobinick incompatible with Walden and thus unpersuasive.

In the instant case, none of the Appellees offer their addiction treatment services in Florida or otherwise have business contacts within Florida. None of Appellees' allegedly defamatory comments sought to direct business to their practices. The closed Facebook group is geared specifically for other addiction treatment professionals, not the general public, and was not designed to market Appellees' services into Florida. Indeed, the closed Facebook group is a passive website. None of the Appellees owned the website where the comments were posted, as they are mere contributors to the closed Facebook group. Appellees further attested that none of the websites associated with their services direct their advertising into Florida. While Appellants claim they suffered "reputational harm" as a result of Appellees' comments, Estes failed to identify any Florida resident who read these comments and consequently discontinued business relations with her or The Addictions Academy in her counter-affidavit. Cf. Walden, 571 U.S. at 287, 134 S.Ct. 1115 ("However scandalous a newspaper article might be, it can lead to a loss of reputation only if communicated to (and read and understood by) third persons.").

(b) Purposeful Availment Under the "Traditional Analysis"

Courts have also applied a traditional purposeful availment analysis in the context of intentional torts to determine whether a nonresident defendant possesses sufficient minimum contacts with the forum state. See, e.g., Louis Vuitton, 736 F.3d at 1356 (noting that "courts have applied the traditional minimum contacts test for purposeful availment analysis in lieu of, or in addition to, the 'effects test' in cases involving ... intentional torts"). Under the traditional test, courts "identify all contacts between a nonresident defendant and [Florida]" and determine "whether those contacts: (1) are related to the plaintiff's cause of action; (2) involve some act by which the defendant purposefully availed himself of the privileges of doing business within the forum; and (3) are such that the defendant should reasonably anticipate being haled into court in the forum." Id. at 1357 (citing U.S. S.E.C. v. Carrillo, 115 F.3d 1540, 1542 (11th Cir. 1997) ).

Here, the only identifiable contact that Appellees have with the state of Florida is their interactions with Estes on the comment threads in the closed Facebook group. As discussed in the previous subsection, we find that Appellants' cause of action arises out of Appellees' contact with Estes. A review of the record establishes, however, that none of the Appellees purposefully availed themselves of the privileges of conducting business within Florida such that they should reasonably anticipate being haled into a Florida court. Appellees do not conduct any type of business or service in Florida, advertise in Florida, own any real property in Florida, or maintain any bank accounts in Florida. Compare Aviation One, 722 F. App'x at 881 (finding that a nonresident corporation did not have sufficient minimum contacts with Florida where it "did not solicit business in Florida, did not insure property or a risk in Florida, and had no direct contact" with the resident plaintiff before the incident), with Louis Vuitton, 736 F.3d at 1357-58 (finding that the nonresident defendant purposefully availed himself to Florida where he "purposefully solicited business from Florida residents through the use of at least one fully interactive, commercial website, ... received orders from multiple Florida residents to ship goods into Florida[,] ... [and] shipped those goods ... into Florida"), and Carrillo, 115 F.3d at 1545-46 (finding that the nonresident corporation purposefully availed itself to the United States where it purchased advertisements numerous times in a widely circulated, complimentary airlines magazine and set up bank accounts to purchase unregistered securities). Moreover, Appellants failed to identify any other contact that Appellees had with Florida besides Estes or to otherwise rebut Appellees' jurisdictional attestations.

Because Appellees' allegedly defamatory statements about Appellants are the only contact between Appellees and Florida, we conclude that Appellees did not purposefully avail themselves of the privilege of conducting activities within Florida. Accordingly, we find Appellants have failed to establish that Appellees have sufficient minimum contacts to satisfy either the "effects test" analysis under Calder and Walden or a traditional purposeful availment analysis.

3. "Traditional Notions of Fair Play and Substantial Justice"

While our finding that none of the Appellees purposefully availed themselves to the privilege of conducting activities within Florida is sufficient to affirm the trial court's order, we further address whether the exercise of personal jurisdiction over Appellees would satisfy the third prong of the due process analysis, i.e., "traditional notions of fair play and substantial justice." The relevant factors for consideration are: "(1) 'the burden on the defendant'; (2) 'the forum's interest in adjudicating the dispute'; (3) 'the plaintiff's interest in obtaining convenient and effective relief'; and (4) 'the judicial system's interest in resolving the dispute.' " Louis Vuitton, 736 F.3d at 1358 (quoting Licciardello, 544 F.3d at 1288 ). As the Supreme Court has recently stated, the primary concern in assessing personal jurisdiction under the prong of "traditional notions of fair play and substantial justice" is the burden on the defendant. Bristol-Myers Squibb Co. v. Superior Court of Cal., --- U.S. ----, 137 S.Ct. 1773, 1780, 198 L.Ed.2d 395 (2017) ; see also Flatirons Bank v. Alan W. Steinberg Ltd. P'ship, 233 So.3d 1207, 1211 n.7 (Fla. 3d DCA 2017) (citing Bristol-Meyers in recognizing the "recent trend" in the Supreme Court's jurisprudence on specific jurisdiction "to limit the reach of a court over a defendant where the activity has minimal affiliation with or connection to the forum state").

Appellees rely on a series of recent federal cases involving statements posted on electronic message boards and websites to demonstrate that the exercise of personal jurisdiction in the instant case would violate "traditional notions of fair play and substantial justice" where the defendant's activity evidenced minimal affiliation with or connection to the forum state. We find these cases persuasive. "Having an 'interactive website' ... should not open a defendant up to personal jurisdiction in every spot on the planet where that interactive website is accessible." Advanced Tactical Ordinance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 803 (7th Cir. 2014) ; accord Louis Vuitton, 736 F.3d at 1357-58 (holding that "the mere operation of an interactive website alone" does not "give[ ] rise to purposeful availment anywhere the website can be accessed"); see also Kabbaj v. Simpson, 547 F. App'x 84, 88 (3d Cir. 2013) (finding that it "would not comport with due process" to base personal jurisdiction solely on a non-resident's allegedly defamatory comments on electronic message boards); Shrader v. Biddinger, 633 F.3d 1235, 1241 (10th Cir. 2011) ("The maintenance of a web site does not in and of itself subject the owner or operator to personal jurisdiction, even for actions relating to the site, simply because it can be accessed by residents of the forum state.... Similarly, posting allegedly defamatory comments or information on an internet site does not, without more, subject the poster to personal jurisdiction wherever the posting could be read (and the subject of the posting may reside)." (citations omitted) ); Blue Water Int'l, Inc. v. Hattrick's Irish Sports Pub, LLC, Case No. 8:17-cv-1584-T-23AEP, 2017 WL 4182405, at *3-4 (M.D. Fla. Sept. 21, 2017) (finding that subjecting a nonresident business that advertised on social media "to personal jurisdiction in Florida merely because a Floridian might view the [defendant's social media] pages 'offend[s] traditional notions of fair play and substantial justice' " and would "impermissibly risk subjecting a defendant to suit throughout the United States" (quoting Advanced Tactical, 751 F.3d at 803 ) ).

The record evidence establishes that the exercise of personal jurisdiction over each Appellee would violate traditional notions of fair play and substantial justice. Rodin and Nicholl both reside in Orange County, California, and Brown resides in Johnson County, Kansas. Brown and Nicholl attested that their addiction therapy practices are centered on their respective geographic locations, and Rodin attested that she does not practice in Florida. As discussed above, none of the Appellees have relevant contacts with Florida other than the allegedly defamatory comments on the threads in the closed Facebook group. While Florida may have a strong interest in affording its residents a forum to obtain relief from intentional torts and it would be more convenient for Appellants to litigate in Florida, the burden on Appellees to litigate in Florida outweighs these factors. Accordingly, we find that the trial court did not err in granting each Appellee's motion to dismiss, as none of the Appellees have sufficient minimum contacts to satisfy due process requirements.

C. No Error in Denying Limited Jurisdictional Discovery

Finally, Appellants argue that the trial court erred by not permitting them to conduct limited jurisdictional discovery at the eleventh hour. Generally, "[a] trial court is given wide discretion in dealing with discovery matters, and unless there is a clear abuse of that discretion, the appellate court will not disturb the trial court's order." Alvarez, 75 So.3d at 793. Once a defendant files an affidavit contesting personal jurisdiction, the burden then shifts to the plaintiff to demonstrate the grounds for the court to exercise jurisdiction over the defendant via counter-affidavit or other sworn affidavit. See Venetian Salami, 554 So.2d at 502 ; Volkswagen Aktiengesellschaft v. Jones, 227 So.3d 150, 157 (Fla. 2d DCA 2017). "If the material facts alleged in the opposing affidavits conflict with one another, the trial court is required to hold an evidentiary hearing to resolve the jurisdictional issue." Redwood Recovery Servs. v. Addle Hill, Inc., 140 So.3d 1037, 1040 (Fla. 3d DCA 2014) (footnote omitted).

The record before us shows that Estes's counter-affidavit failed to demonstrate any grounds to exercise jurisdiction over Appellees after each Appellee filed their own legally sufficient sworn affidavit. Indeed, the parties' affidavits are not in conflict and can therefore be reconciled. Appellants, however, urge us to consider the allegations in their verified Second Amended Complaint as directly in conflict with Appellees' affidavits. While a sworn complaint may act as a substitute for a counter-affidavit, see Castillo v. Concepto Uno of Miami, Inc., 193 So.3d 57, 60 (Fla. 3d DCA 2016), the sworn complaint must constitute legally sufficient evidence to be considered by the court, see Toyos v. Helm Bank, USA, 187 So.3d 1287, 1290 (Fla. 4th DCA 2016) (" 'While a verified complaint may serve the same purpose as an affidavit ..., the complaint's allegations must meet the requirements of the rule governing supporting and opposing affidavits.' " (quoting Lindgren v. Deutsche Bank Nat'l Tr. Co., 115 So.3d 1076, 1076 (Fla. 4th DCA 2013) ) ). Here, the Second Amended Complaint's verification was not based on Appellants' personal knowledge, but was "to the best of [Appellants'] knowledge and belief." "A verification which is improperly based on information and belief is insufficient to entitle the verifying party to relief because the verification is qualified in nature." Ballinger v. Bay Gulf Credit Union, 51 So.3d 528, 529 (Fla. 2d DCA 2010). Accordingly, as the verification of Appellants' Second Amended Complaint was qualified in nature, it failed to constitute legally sufficient evidence to establish a basis for personal jurisdiction over Appellees.

Because Appellants failed to rebut Appellees' affidavits with Estes's counter-affidavit, the trial court did not abuse its discretion by denying limited jurisdictional discovery. Cf. Rollet, 159 So.3d at 356 ("The ... affidavit served to shift the burden to de Bizemont to refute or rebut the allegations by providing her own affidavit or other sworn proof to establish a basis for personal jurisdiction of Rollet. By failing to do so, de Bizemont acted at her own peril in attending a non-evidentiary hearing at which the trial court would be able to consider only the complaint, the motion to dismiss, and Rollet's affidavit.").

IV. CONCLUSION

For the reasons stated, we affirm the trial court's order granting Appellees' motions to dismiss for lack of personal jurisdiction.

AFFIRMED.

      Brad Lamm filed a brief as amicus curiae in the instant appeal.

      Appellant's Second Amended Complaint also asserted various counts of defamation, tortious interference, civil conspiracy, breach of fiduciary duty, breach of contract, injunctive relief, and violations of Florida's Antitrust Act against Appellees' codefendants in the case.

      A review of the Second Amended Complaint reveals that much of the harm Appellants allege is based on the alleged actions-e.g., counts of tortious interference, civil conspiracy, and defamatory statements made outside the closed Facebook group-of the codefendants not before us in this appeal.

      Rodin averred that she returned home to California on the same day after dropping off the client in Florida.

      The Florida Supreme Court in Internet Solutions Corp. v. Marshall, 39 So.3d 1201, 1216 (Fla. 2010), made clear that whether Florida's long-arm statute applies to confer personal jurisdiction is only the "first step of the inquiry" in determining whether a court may exercise personal jurisdiction over a nonresident defendant.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Cameron D. BACCHUS, Petitioner, v. Julie L. JONES, etc., et al., Respondents.
    No. 3D17-0866
    District Court of Appeal of Florida, Third District.
    Opinion filed October 10, 2018
    Cameron D. Bacchus, in proper person.
    Pamela Jo Bondi, Attorney General and Natalia Costea, Assistant Attorney General, for respondent The State of Florida.
    Before LAGOA, SCALES, and LUCK, JJ.
    ON ORDER TO SHOW CAUSE
   PER CURIAM.

On July 18, 2018, this Court denied Petitioner Cameron D. Bacchus's ("Petitioner")

petition for a writ of habeas corpus. Petitioner was ordered, within thirty days from the denial of the petition, to show cause why he should not be prohibited from filing further pro se pleadings unless such pleadings were signed by a member of the Florida Bar. Petitioner responded to the order to show cause, and this Court has reviewed Petitioner's response. Having provided Petitioner notice and an opportunity to respond to the order to show cause, Petitioner is now prohibited from filing any further appeals, petitions, motions, or pleadings challenging his conviction and sentence in Eleventh Judicial Circuit case number 88-32334. See State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). The Clerk of the Third District Court of Appeal is directed to refuse to accept any further papers relating to lower case number 88-32334 unless they have been reviewed and signed by an attorney who is a duly licensed member of the Florida Bar in good standing. See Whipple v. State, 112 So.3d 540, 540-41 (Fla. 3d DCA 2013). We further caution Petitioner "that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal in any court is subject to having his gain-time forfeited." Id. at 541.


text:
    R.V., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
    No. 3D18-0734
    District Court of Appeal of Florida, Third District.
    Opinion filed October 17, 2018
    R.V., the father, in proper person.
    Law Office of Richard F. Joyce, P.A., and Richard F. Joyce ; Lucia C. Pineiro Esq. & Associates, P.A., and Lucia C. Pineiro, for J.A., the mother; Karla Perkins, Miami, for Department of Children and Families, for appellees.
    Before ROTHENBERG, C.J., and SALTER, and LINDSEY, JJ.
   PER CURIAM.

We grant appellant's counsel's motion to withdraw pursuant to Jimenez v. Department of Health and Rehabilitative Services, 669 So.2d 340 (Fla. 3d DCA 1996).

Further, upon consideration of the initial brief, and finding no preliminary basis for reversal has been demonstrated, the order below is summarily affirmed pursuant to Florida Rule of Appellate Procedure 9.315(a). See Soro v. Soro, 145 So.3d 183 (Fla. 3d DCA 2014) ; Fla. Detroit Diesel v. Nathai, 28 So.3d 182 (Fla. 1st DCA 2010) ("[W]e conclude that the appellants' initial brief fails to demonstrate a preliminary basis for reversal and we therefore summarily affirm the order without the need for an answer brief.").

Affirmed.


author: SCALES, J.

text:
    Ricardo GARCIA, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D17-1778
    District Court of Appeal of Florida, Third District.
    Opinion filed October 17, 2018
    Ricardo Garcia, in proper person.
    DeLuca Law Group, PLLC, and Shawn Taylor (Fort Lauderdale), for appellee.
    Before EMAS, FERNANDEZ and SCALES, JJ.
   SCALES, J.

Appellant Ricardo Garcia appeals a Final Judgment of Mortgage Foreclosure in favor of appellee Deutsche Bank National Trust Company. We reverse because the case below was removed to federal court one day before the trial court entered the final judgment; thus, the trial court lacked jurisdiction to enter the judgment.

After the Bank sued Garcia to foreclose a mortgage, a tenant of Garcia filed a cross-complaint against Garcia in the foreclosure action, alleging that Garcia and his wife violated the federal Truth in Lending Act by representing that the subject mortgage had been rescinded. The tenant asserted in the cross-complaint that this misrepresentation entitled the tenant to remain in the property. On July 10, 2017, this cross-complainant filed a notice of removal of the entire foreclosure action to federal court. The following day, on July 11, 2017, the trial court entered the final foreclosure judgment. The United States District Court remanded the case back to the circuit court on July 19, 2017.

State court jurisdiction ceases upon removal of a case to federal court and any pre-remand proceedings occurring in the state court after the case has been removed are void. Musa v. Wells Fargo Del. Tr. Co., 181 So.3d 1275, 1277 (Fla. 1st DCA 2015) (citing Maseda v. Honda Motor Co., 861 F.2d 1248 (11th Cir. 1988) ). In a detailed review of the law in this area, the First District concluded that even an improper removal to federal court, or a removal for improper motives, will not preserve state court jurisdiction. Id. at 1280-84 ; see also Cole v. Wells Fargo Bank Nat'l Ass'n, 201 So.3d 749, 750 (Fla. 5th DCA 2016).

Because the trial court lacked jurisdiction to enter the final judgment, we are compelled to reverse the final judgment and remand for proceedings consistent with this opinion.

Reversed and remanded.

      This was the second time during the pendency of the foreclosure litigation that this tactic was employed. On January 20, 2017, a different tenant of Garcia filed an identical cross-complaint and sought removal of the entire case to federal court. The United States District Court remanded the case back to the circuit court on February 24, 2017.

      As the First District pointed out, a frivolous or bad faith removal to federal court may implicate the trial court's "authority to sanction such conduct (once it regains jurisdiction)." Musa, 181 So.3d at 1284.


text:
    Jose LOPEZ, Petitioner, v. Daniel JUNIOR, etc., et al., Respondents.
    No. 3D18-748
    District Court of Appeal of Florida, Third District.
    Opinion filed October 17, 2018
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for respondents.
    Before SALTER, EMAS and LINDSEY, JJ.
   PER CURIAM.

Jose Lopez petitions for writ of habeas corpus, alleging ineffective assistance of appellate counsel. The State concedes that, on the merits, Lopez is entitled to relief, but asserts that Lopez is procedurally barred. We grant the petition, concluding that Lopez is not procedurally barred, and that he is entitled to the relief requested.

The relevant facts are undisputed. Lopez was convicted of, inter alia, attempted first-degree murder of Roberto Hernandez, and kidnapping of, and aggravated battery upon, Yudy Gonzalez. As to the attempted-murder conviction, the jury specifically found that Lopez used and discharged a firearm, causing great bodily harm. As to the kidnapping and aggravated battery convictions, the jury found that Lopez actually possessed a firearm.

Relevant for our purposes, the trial court sentenced Lopez as follows:

- Twenty-five years on the attempted murder count, with a twenty-five year mandatory minimum pursuant to the 10/20/Life statute. See § 775.087(2)(a)3., Fla. Stat. (2011) );
- Thirty years on the kidnapping count, with a ten-year mandatory minimum pursuant to the 10/20/Life statute. See § 775.087(2)(a)1., Fla. Stat. (2011) ); and
- Ten years on the aggravated battery count with a ten-year mandatory minimum sentence pursuant to the 10/20/Life statute. See id.

Pursuant to this Court's then-controlling decision in Morgan v. State, 137 So.3d 1075 (Fla. 3d DCA 2014) ( Morgan I ) the trial court determined that each of the mandatory-minimum sentences (twenty-five, ten and ten) must be served consecutively, for an aggregate mandatory minimum sentence of forty-five years.

Our decision in Morgan I, by which the trial court was bound, held that the trial court, under these circumstances, is without discretion to impose concurrent mandatory minimum sentences, and instead must impose those sentences consecutively. In reaching our holding in Morgan I, we relied on the First District Court of Appeal's opinion in Walton v. State, 106 So.3d 522 (Fla. 1st DCA 2013) ( Walton I ) which likewise held that such sentences must be imposed consecutively. Both this Court in Morgan I, and the First District in Walton I, certified conflict with the Fifth District's decision in Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006).

Lopez's counsel appealed his conviction and sentence, see case no. 3D14-2543, and in the initial brief, Lopez's appellate counsel challenged the consecutive nature of the mandatory minimum sentences, contending that the trial court should have had the discretion to consider imposing those sentences concurrently. Appellate counsel acknowledged our decision in Morgan I and the First District's decision in Walton I, but argued that those decisions were in conflict with the Fifth District's decision in Irizarry, and asserted that Irizarry represented the more well-reasoned analysis. Counsel further noted that the Florida Supreme Court had accepted jurisdiction in Walton I to resolve the conflict between Irizarry and Walton I (and, by extension, our decision in Morgan I, which expressly relied on Walton I and certified conflict with Irizarry ). Counsel requested that, if we affirm, we certify conflict with Irizarry, as we had done in Morgan I.

On April 13, 2016, this Court issued a per curiam opinion in Lopez's appeal, affirming Lopez's conviction and sentence with a citation to Morgan I. See Lopez v. State, 189 So.3d 1034 (Fla. 3d DCA 2016). By the time we released our opinion in Lopez, the Florida Supreme Court had already entered a stay of the proceedings in Morgan I"pending disposition of Walton v. State, Case No. SC13-1652, which is pending in this Court." See SC14-757, Order Staying Proceedings (docketed May 13, 2014). Based upon our citation to Morgan I in the opinion affirming Lopez's conviction and sentence, his appellate counsel could have (and should have) sought discretionary review in the Florida Supreme Court, in an effort to place Lopez in the pipeline so he would receive the benefit of a favorable resolution of the Florida Supreme Court's decision in Walton I and Morgan I. See Persaud v. State, 838 So.2d 529, 532 (Fla. 2003) (observing that the Florida Supreme Court's discretionary review jurisdiction extends to "PCA opinions that cite as controlling authority 'a case that is pending review in or has been reversed by this Court' " (quoting Jollie v. State, 405 So.2d 418, 421 (Fla. 1981) ) ). However, Lopez's appellate counsel failed to file a notice of discretionary review with the Florida Supreme Court.

On September 29, 2016, Lopez filed in this Court a pro se petition for writ of habeas corpus alleging ineffective assistance of appellate counsel and raising eight separate grounds, none of which included the issue raised in the petition before this Court. This Court denied that pro se petition on October 13, 2016. See Lopez v. State, 212 So.3d 368 (Fla. 3d DCA 2016) (Table).

Thereafter, two relevant events occurred:

• On December 1, 2016, the Florida Supreme Court quashed the First District's decision in Walton I and approved the Fifth District's decision in Irizarry. Walton v. State, 208 So.3d 60 (Fla. 2016) ( Walton II ). In the related case of Williams v. State, 186 So.3d 989, 994 (Fla. 2016), the Florida Supreme Court held that "under the plain language of section 775.087(2)(d), consecutive mandatory minimum sentences are not required, but are permissible, if the sentences arise from a single criminal episode."
• On May 26, 2017, the Florida Supreme Court granted review of our decision in Morgan I, quashed that decision, and remanded for reconsideration in light of its decisions in Walton and Williams. See Morgan v. State, 42 Fla. L. Weekly S680 (Fla. May 26, 2017) ( Morgan II ).

Lopez's original appellate counsel then filed this timely, but successive, petition for writ of habeas corpus.

As the State commendably concedes, Lopez is entitled to relief on the merits. We assess a claim of ineffective assistance of appellate counsel by applying in parallel fashion the same two-prong Strickland standard of deficient performance and prejudice applied to claims of ineffective assistance of trial counsel. Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000). We agree that appellate counsel's omission under these circumstances "constituted a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance." Id. (quoting Thompson v. State, 759 So.2d 650, 660 (Fla. 2000) (additional citation omitted) ).

The resulting prejudice is likewise clear: had appellate counsel sought discretionary review from our per curiam affirmance (which cited to Morgan I in reliance upon Walton I ), there is a reasonable probability that the Florida Supreme Court would have done precisely what it did in Morgan: entered a stay of the proceedings pending disposition of Walton v. State, Case No. SC13-1652, which was then-pending in the Florida Supreme Court. In doing so, this case would have been placed in the pipeline, giving Lopez the opportunity to obtain precisely the same outcome ordered by the Florida Supreme Court in its subsequent decision in Morgan I I: quashal of our decision in Lopez, and a remand to this Court for reconsideration in light of the Florida Supreme Court's decision in Walton I I and Williams. Upon remand to this Court, we would have done that which we do now by this opinion: remanding this cause to the trial court for a resentencing hearing to determine, in the exercise of its discretion, whether the mandatory minimum sentences should be served consecutively or concurrently.

Counsel's failure to seek discretionary review with the Florida Supreme Court foreclosed any opportunity for Lopez to be placed in the Walton pipeline, and we conclude that this omission and its resulting prejudice constituted ineffective assistance of appellate counsel.

We therefore grant the petition, reverse that portion of the sentencing order directing that mandatory minimum sentences be served consecutively, and remand this cause to the trial court for the purpose of conducting a resentencing hearing at which the trial court shall determine, in the exercise of its discretion, whether the mandatory minimum sentences imposed on Lopez's attempted murder, aggravated battery and kidnapping convictions should be served consecutively or concurrently. Lopez shall be present at the resentencing hearing and shall be represented by counsel.

      See Marshall v. State, 240 So.3d 111 (Fla. 3d DCA 2018) (holding that, under the manifest injustice doctrine, appellate court has discretion to grant relief on a successive petition alleging ineffective assistance of appellate counsel); Johnson v. State, 226 So.3d 908, 910 (Fla. 4th DCA 2017) (holding that an appellate court has the authority to grant relief "even on a successive petition or claim where failing to do so would result in a manifest injustice").

      See Walton v. State, 145 So.3d 830 (Fla. 2014).

      See Fla. R. App. P. 9.141(d) (providing in pertinent part: "A petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence become final on direct review ....") In the instant case, Lopez's judgment and sentence became final on direct appeal when this Court issued its mandate on April 29, 2016. The instant petition was filed on April 18, 2018.

      We commend Mr. Kalter for his candor, for his willingness to acknowledge this omission, and for his efforts to remedy the present situation.

      Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: EMAS, J.

text:
    Pablo ANTONIAZZI, et al., Appellants, v. Hamed WARDAK, et al., Appellees.
    No. 3D17-2064
    District Court of Appeal of Florida, Third District.
    Opinion filed October 17, 2018
    Rivero Mestre, LLP, and M. Paula Aguila, Andrés Rivero, Miami, and Alan H. Rolnick, for appellants.
    Kopelowitz Ostrow, Ferguson, Weiselberg, Gilbert, and Alexis Fields (Fort Lauderdale), for appellees.
    Before SALTER, EMAS and LOGUE, JJ.
   EMAS, J.

INTRODUCTION

Pablo Antoniazzi ("Antoniazzi"), Estrategia Investimentos USA, Inc. ("Estrategia Inc."), and Estrategia Investimentos, LLC ("Estrategia LLC") (collectively, "Appellants")

appeal an order denying their motion to dismiss the complaint for lack of jurisdiction, based upon a forum selection clause. We reverse and hold that the forum selection clause is mandatory and unambiguous, and that application of the mandatory forum selection clause to the instant action required the action to be filed in Brazil.

FACTS AND PROCEDURAL HISTORY

On March 4, 2013, Hamed Wardak and NCL Holdings, Ltd. (collectively "Appellees") entered into an Agreement for Account Opening (the "Banking Agreement") with Brazilian bank, Estrategia Investimentos S.A., ("the Bank"). Wardak is the owner of the bank account and the deposited funds at issue. Antoniazzi was the Bank's representative and signed the Banking Agreement on behalf of the Bank. Estrategia Inc. was a strategic trading partner of the Bank, while Estrategia LLC provided financial advising services.

Appellees allege that when they entered into the Banking Agreement with the Bank, they were establishing an account for banking services that would provide Wardak with constant access to the funds. After the account was established, Wardak wired $2.7 million dollars into it, but soon afterward, the Bank restricted his access to the funds. After this dispute arose regarding access to the funds, the Bank provided Wardak with a letter of understanding, in which it agreed to return all funds to Wardak with interest. Wardak alleges that none of the $2.7 million has been returned.

On May 5, 2016, the Brazilian government took over the Bank and initiated liquidation proceedings. Thereafter, Wardak and NCL filed an action against Appellants and the Bank, sounding in breach of contract, fraud in the inducement, fraudulent misrepresentation, and violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA").

Appellants filed a motion to dismiss the complaint for lack of jurisdiction, alleging that the forum selection clause contained in the Banking Agreement was mandatory and unambiguous, and that the exclusive forum for this action was Brazil.

Appellees countered that the forum selection clause was permissive, and not mandatory and that the forum selection clause permitted Appellees to file in Brazil or in the forum where "the branch of the Bank maintaining the contractual relationship" with Appellee Wardak is located, i.e. Miami. Appellees further maintained that, even if the clause was mandatory, the term "branch of the Bank" was ambiguous and it should be interpreted to include the Bank's office in Miami.

The forum selection clause in the Banking Agreement provides:

Applicable law-venue for judicial and foreclosure proceedings
All legal relations between the client and the Bank are governed by Brazil law. The place of performance, the exclusive jurisdiction for all legal action and the venue for legal proceedings if the client is resident abroad is the place where the head office or branch of the Bank maintaining the contractual relationship with the client is located. To that end, the client elects the head office or branch concerned as its address for legal service. The Bank nevertheless reserves the right to instigate proceedings in the courts of the client's place of residence or before any other competent court.

Following an evidentiary hearing, the trial court denied the motion to dismiss, finding: "the forum selection clause lacks sufficient mandatory or exclusive language binding the parties to a specific jurisdiction or venue;" and that, even if the clause was mandatory, "venue is proper in Miami-Dade County because a 'Branch office' is nothing more than a location other than the main office."

STANDARD OF REVIEW

The trial court's construction of the forum selection clause is subject to de novo review. Celistics, LLC v. Gonzalez, 22 So.3d 824, 825 (Fla. 3d DCA 2009). The initial determination of whether a contract term is ambiguous is a question of law, which we also review de novo. Escobar v. United Auto. Ins. Co., 898 So.2d 952 (Fla. 3d DCA 2005). If a contract term is ambiguous, requiring the trial court to resolve factual issues, we review the trial court's determinations of fact for competent substantial evidence. Weisfeld-Ladd v. Estate of Ladd, 920 So.2d 1148, 1150 (Fla. 3d DCA 2006) ; Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982).

ANALYSIS

1. Whether the forum selection clause is permissive or mandatory

We hold that the provision is mandatory and that the trial court erred in determining that the forum selection clause was permissive.

The relevant portion of the forum selection clause provides:

The place of performance, the exclusive jurisdiction for all legal action and the venue for legal proceedings if the client is resident abroad is the place where the head office or branch of the Bank maintaining the contractual relationship with the client is located.

(Emphasis added.)

The general rule is that "a forum selection clause will be considered permissive if it lacks words of exclusivity." Celistics, 22 So.3d at 826. By contrast, "a forum selection clause is mandatory where the plain language used by the parties indicates 'exclusivity.' " Espresso Disposition Corp. 1 v. Santana Sales & Mktg. Grp., Inc., 105 So.3d 592, 595 (Fla. 3d DCA 2013). A forum selection clause will be deemed mandatory where, by its terms, suit may be filed only in the forum named in the clause, whereas "permissive forum selection clauses are essentially a 'consent' to jurisdiction or venue in the named forum and do not exclude jurisdiction or venue in another forum." Travel Exp. Inv. Inc. v. AT & T Corp., 14 So.3d 1224, 1226 (Fla. 5th DCA 2009) (quoting Shoppes Ltd. P'ship v. Conn, 829 So.2d 356, 358 (Fla. 5th DCA 2002) ).

In response to the motion to dismiss, Appellees contended, and the trial court agreed, that the forum selection clause lacks words of exclusivity and thus, must be deemed permissive.

Importantly, however, the absence of the term "shall" or "must" does not necessarily render a forum selection clause permissive. Even in the absence of such "magic words," a forum selection clause may be deemed mandatory where the language used "does clearly indicate that it is mandatory in nature." Celestics, 22 So.3d at 826 (quoting Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So.2d 827, 829 (Fla. 4th DCA 2004) ).

Here the forum selection clause provides: "The place of performance, the exclusive jurisdiction for all legal action and the venue for legal proceedings ... is the place ..." (emphasis added). Thus, the plain language of this contract expresses an unmistakable intent to make the forum provision exclusive. See, e.g., Agile Assur. Group, Ltd. v. Palmer, 147 So.3d 1017 (Fla. 2d DCA 2014) (holding the following forum selection clause mandatory: "Any legal suit, action, claim, proceeding[,] or investigation arising out of or relating to this Agreement may be instituted exclusively in the courts of Makati City and Employee waives any objections which he may now or hereafter have to such venue of any such suit ... and irrevocably submits to the personal and subject matter jurisdiction of any such court"); Golf Scoring Sys., 877 So.2d at 829. Accord, Michaluk v. Credorax (USA), Inc., 164 So.3d 719, 725 (Fla. 3d DCA 2015).

We further reject Appellees' contention that the lack of mutuality in the forum selection clause renders it permissive, rather than mandatory. The relevant portion of the clause provides:

The place of performance, the exclusive jurisdiction for all legal action and the venue for legal proceedings if the client is resident abroad is the place where the head office or branch of the Bank maintaining the contractual relationship with the client is located. To that end, the client elects the head office or branch concerned as its address for legal service. The Bank nevertheless reserves the right to instigate proceedings in the courts of the client's place of residence or before any other competent court.

(Emphasis added.)

A contract will be considered valid even when its obligations are not mutual as long as there is consideration for the contract as a whole. Murry v. Zynyx Mktg. Comm. Inc., 774 So.2d 714, n. 2 (Fla. 3d DCA 2000). This general proposition of law applies in the instant context, and we hold that the non-mutuality of the forum selection clause does not render it invalid or permissive. See, e.g., Silverman v. Carvel Corp., 192 F.Supp.2d 1 (W.D.N.Y. 2001) (holding nonmutuality of forum selection clause did not render clause invalid even though it restricted venue only in actions brought by plaintiff against defendant but contained no similar restrictions on venue in actions brought by defendant against plaintiff). See also Karl Koch Erecting Co. v. New York Convention Ctr. Dev. Corp., 838 F.2d 656 (2d Cir. 1988) ; Medoil Corp. v. Citicorp, 729 F.Supp. 1456, 1459 (S.D.N.Y.1990) (upholding forum selection clause which required account holder to file all legal action "at the location of the Bank's office appearing on this Agreement," while providing that Bank "may bring action against the Account Holder(s) before the courts or any other competent authority at the place of residence of the Account Holder(s) or elsewhere").

2. Whether the phrase "branch of the Bank" is ambiguous or unambiguous

The trial court concluded alternatively that, even if the forum selection clause is mandatory, the phrase "branch of the Bank maintaining the contractual relationship with the client" was ambiguous. Resolving that ambiguity, the trial court found that Miami-Dade County was a proper forum because the Bank had an "office" in Miami. We hold that the trial court erred in this regard, because there was no ambiguity and, under a plain reading of the clause, the office in Miami was not a "branch of the Bank" as that term was used in the Banking Agreement and therefore could not serve as a proper forum for the action.

That portion of the clause at issue provides:

"[T]he exclusive jurisdiction for all legal action and the venue for legal proceedings if the client is resident abroad is the place where the head office or branch of the Bank maintaining the contractual relationship with the client is located."

Because Appellees are "resident abroad" (i.e., not living in Brazil), the instant action could be filed only where (1) the head office is located (i.e., Rio de Janeiro, Brazil); or (2) the branch of the Bank maintaining the contractual relationship with the client is located. The term "branch of the Bank" is not defined in the Banking Agreement.

In construing a contract, the legal effect of its provisions should be determined from the words of the entire contract, which is the best evidence of the intent of the parties. Prudential Ins. Co. of Am. v. Wynn, 398 So.2d 502, 503 n. 1 (Fla. 3d DCA 1981) (citing Jacobs v. Petrino, 351 So.2d 1036 (Fla. 4th DCA 1976) ). "If a contract is clear, complete and unambiguous, there is no need for judicial construction." Hunt v. First Nat. Bank of Tampa, 381 So.2d 1194, 1197 (Fla. 2d DCA 1980) (citing Hamilton Constr. Co. v. Bd. of Public Instruction, 65 So.2d 729 (Fla.1953) ). See also All-Dixie Ins. Agency, Inc. v. Moffatt, 212 So.2d 347 (Fla. 3d DCA 1968).

The Miami office was the location where Wardak met with Antoniazzi, a Bank representative, to negotiate and execute the Banking Agreement. However, this is insufficient to establish that the Miami office constituted a "branch of the Bank." It was undisputed that the Bank did not establish or maintain any State-regulated or federally-regulated branch offices within the United States. Nevertheless, Appellees maintain that the phrase "branch of the Bank" is ambiguous and, further, that the Miami office should be construed to be a branch of the Bank because this is where Appellees and the Bank met on two or three occasions to negotiate and sign the Banking Agreement. The trial court concluded that the Miami office constituted a branch of the Bank "because a 'branch office' is nothing more than a location other than the main office."

However, no evidence was presented that the Miami office was a location at which deposits were received, checks paid, or funds withdrawn. Indeed, the affirmative testimony established that the Miami office did not have an ATM machine or a teller. There was no evidence that Appellees ever deposited or withdrew any funds at the Miami office, or that such could be done at the Miami office.

The terms "Branch bank" and "Branch office" are defined in Black's Law Dictionary:

Branch bank. An office of a bank physically separated from its main office, with common services and functions, and corporately part of the bank. Under the National Bank Act, term at very least includes any place for receiving deposits or paying checks or lending money apart from chartered premises. Nebraskans for Independent Banking, Inc. v. Omaha Nat. Bank, C.A. Neb., 530 F.2d 755, 764 (8th Cir. 1976).
* * *
"Branch office" of a bank or savings bank includes an office, unit, station, facility, terminal, space or receptacle at a fixed location other than a principal office, however designated, at which any business that may be conducted in a principal office of a bank or savings bank may be transacted. Included in this definition are off-premises electronic bank facilities.
Under Uniform Commercial Code, branch bank includes a separately incorporated foreign branch of bank. § 1-201.

BLACK'S LAW DICTIONARY, 188 (6th ed. 1991).

See also § 658.12(4), Fla. Stat. (2016) (providing: " 'Branch' or 'branch office' of a bank means any office or place of business of a bank, other than its main office and the facilities and operations authorized by ss. 658.26(4) and 660.33, at which deposits are received, checks are paid, or money is lent"); 12 U.S.C. § 36(j) (2016) (providing: "The term 'branch' as used in this section shall be held to include any branch bank, branch office, branch agency, additional office, or any branch place of business located in any State or Territory of the United States or in the District of Columbia at which deposits are received, or checks paid, or money lent. The term 'branch', as used in this section, does not include an automated teller machine or a remote service unit."); 12 U.S.C. § 3101(3) (2016) (providing: "For the purposes of this chapter ... 'branch' means any office or any place of business of a foreign bank located in any State of the United States at which deposits are received.") We conclude that the Miami office does not fall within the ordinary meaning of the term "branch of the Bank." No ambiguity existed, and no further evidence was necessary to define the term or discern the intent of the parties.

CONCLUSION

Because the forum selection clause is mandatory, exclusive and unambiguous, we reverse the trial court's order denying Appellants' motion to dismiss, and remand for further proceedings consistent with this opinion.

      The Bank has not appeared at the trial level or in this appeal.

      Although the Banking Agreement expressly provides for application of Brazilian law, the parties (in the trial court and on appeal) relied generally upon Florida law (and persuasive Federal law) in support of their respective positions, and neither relied upon nor cited Brazilian law. Thus, this court applies Florida law. See, e.g., Martinez v. Bloomberg LP, 740 F.3d 211, 223 (2d Cir. 2014) ; Bailey v. ERG Enters., LP, 705 F.3d 1311, 1320 (11th Cir. 2013) ; Chase Manhattan Bank v. Rood, 698 F.2d 435, 436 n. 1 (11th Cir. 1983).

      Further, the mere fact that there were two possible fora for Appellees to file an action (i.e., "the place where the head office or branch of the Bank maintaining the contractual relationship with the client is located") does not alter the mandatory nature of this forum selection clause. See, e.g., Weisser v. PNC Bank, N.A., 967 So.2d 327, 328 (Fla. 3d DCA 2007) (parties agreed "to the exclusive jurisdiction of United States District Court for the District of Kansas or the District Court of Johnson County, Kansas").

      Appellees also contend that, because Appellants were non-signatories to the contract, Appellants do not have standing to enforce the venue provision of the Banking Agreement. However, this Court has previously held that the mandatory nature of a forum selection clause "equally applies to the non-signatory defendants due to the fact that the claims arise directly from the agreement, as well as due to the nature of the commercial relationship of the parties as it relates to the agreement itself." Reyes v. Claria Life & Health Ins. Co., 190 So.3d 154, 159 n.2 (Fla. 3d DCA 2016) (quoting World Vacation Travel, S.A., v. Brooker, 799 So.2d 410, 412-413 (Fla. 3d DCA 2001) ). See also Citigroup Inc. v. Caputo, 957 So.2d 98, 102 (Fla. 4th DCA 2007) (holding a non-signatory may invoke a signatory's forum selection clause where the non-signatory and signatory are related.) Here, the actions asserted in the complaint arise directly out of the Banking Agreement, and the only commercial relationship between the parties is the banking relationship governed and established by the Banking Agreement.

      See, e.g., §§ 658.23, 663.04-.05, Fla. Stat. (2016) (setting forth application, licensing and approval requirements before a foreign bank can operate a branch in Florida).

      See, e.g., 12 U.S.C. § 3102 (2016) (setting forth application and approval requirements before a foreign bank can establish and operate a Federal branch or agency in any State).

      Though not necessary to our decision, we further note that, at the evidentiary hearing, Appellants introduced evidence that Appellees were looking to deposit the $2.7 million into a foreign bank that had no presence in the United States and would not respond to a subpoena from a court in the United States. The Bank apparently met these criteria: An attorney who was advising Wardak during the negotiation of the Banking Agreement testified it was his understanding that the Bank "would not respond to a subpoena for a U.S. court." The attorney also acknowledged sending an email advising Wardak that Estrategia Investimentos, S.A. (i.e., the Bank) "maintains no US presence, so it is perfect." Thereafter, Wardak and NCL deposited the funds with the Bank.


text:
    GARCIA-MATHIES INTERIORS, INC., Appellant, v. Antonio PERÉ and Elizabeth Peré, Appellees.
    No. 3D17-882
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018.
    Zarco Einhorn Salkowski & Brito, P.A., Alejandro Brito, Miami, and Mikhael Bortz, for appellant.
    Jones & Adams, P.A., W. Steven Adams, Matthew L. Jones, Miami, and Jorge E. Porro, for appellees.
    Before LOGUE, LUCK and LINDSEY, JJ.
   PER CURIAM.

Garcia-Mathies Interiors appeals the trial court's order granting Antonio and Elizabeth Pere's motions for sanctions, striking GM Interiors' pleadings, and entering final default judgment in favor of the Peres. We reverse and remand for the trial court to give GM Interiors the opportunity to be heard before the ultimate sanction is imposed.

Factual Background and Procedural History

The Peres hired GM Interiors to design and decorate their new home. But when GM Interiors did not complete the job in three months as promised, and inflated their bills, the Peres sued for fraudulent inducement, fraud, unjust enrichment, accounting, civil theft, and breach of contract.

In their first request for production, the Peres requested that GM Interiors "[p]roduce any and all accounting spreadsheets, in native format of whatever electronic software was utilized" relating to the design and decoration of their home. GM Interiors responded to the request, but the Peres, believing they did not receive the accounting spreadsheets in native format, filed a motion to compel. The trial court held a hearing on the motion, and ordered the Peres to "have their expert accountant identify the necessary accounting documents within the next 60 days." Any "[n]on objected [to] documents [were to] be produced within the 60 days."

The Peres' expert accountant requested GM Interiors' "[a]ccounting records in native format of whichever electronic software was utilized (e.g. Quickbooks)." But after the sixty days came and went, the Peres again moved to compel and sought sanctions (the motion was amended twice and supplemented), alleging that they did not receive the accounting records in native format and GM Interiors had altered the records. The trial court heard the amended and supplemented motion to compel, and ordered that GM Interiors had "24 hours to produce a copy of everything - all that raw data that's on that server for [the Peres'] inspection."

Still believing after the twenty four hours that they did not receive all the accounting records, and that GM Interiors had altered the records, the Peres moved for sanctions based on spoliation (the motion was later supplemented). The trial court held a three-day evidentiary hearing on the various sanctions motions. On the first day, the Peres had their accounting expert testify. On the second day, GM Interiors continued its cross-examination of the Peres' expert. The hearing was reset for a third day so that GM Interiors could put on its case.

Between the second and third day of hearings, GM Interiors sent the Peres an e-mail attachment with what it said was "previously produced" documents. The Peres believed that new, never produced documents were in the attachment. At the beginning of the third day of the evidentiary hearing, the Peres raised the issue of the new documents with the trial court, and this is what happened:

The court: ....I don't understand what the problem is here, and I don't understand why you would have to give somebody a new PDF or an old PDF production for today's hearing if you had previously done that. Why would you need to do that? Why didn't you say, here, I'm going to give you everything I gave you before? Why did you pick this and then use the curious - to me curious - phrase, that was previously given to you. You know what that sounds like to me? I didn't give it to you. I'm going to cover my derriere by saying that I gave it to you before.
[GM Interiors]: In August, I may have missed one.
The court: Oh.
[GM Interiors]: But I gave the hard - the native versions is here, Judge.
The court: Listen -
[The Peres]: I was -
The court: - don't dig yourself deeper. Do yourself a favor. Now it's starting to change. I'm going to grant your motion.
[The Peres]: Thank you, Your Honor.
[GM Interiors]: Judge, please, for the record. I need to put evidence on the record.
The court: You can have access to the record. John, take what he says down.
[The Peres]: Your Honor, we'll submit an order for your consideration.
The court: Okay.
(The [judge] exited the courtroom )

After the hearing, the trial court entered its order concluding that GM Interiors engaged in "bad faith, constant, deliberate, and willful disregard or gross indifference to [the] Court's Orders, the several discovery violations, and [the] intentional destruction, alteration, and/or concealment of evidence." Based on "governing case law, Florida Rule of Civil Procedure 1.380(b)(2)(C), and [the] Court's inherent authority," the trial court struck GM Interiors' pleadings and entered judgment for the Peres.

Discussion

GM Interiors contends on appeal that the trial court erred in striking its pleadings without giving it the opportunity to present rebuttal evidence. We agree.

A party must be afforded an opportunity to be heard before a trial court strikes the party's pleadings as a sanction for a discovery violation. "This opportunity to be heard must include the opportunity to present evidence of extenuating and/or mitigating circumstances, which might explain the failure to comply with the court's discovery order or the opposing party's discovery request." Franchi, 650 So.2d at 162 ; see also Celebrity Cruises, Inc. v. Fernandes, 149 So.3d 744, 752 (Fla. 3d DCA 2014) (reversing, in part, because party lacked an opportunity to present evidence on the issue before sanctions were imposed).

GM Interiors was deprived of the opportunity to be heard. The trial court set an evidentiary hearing to decide whether to impose sanctions. As the trial court explained at the end of the first day, "the sanction that you're asking me to impose is the most severe sanction ... that I can impose. So therefore, I am going to try to bend backwards so that [GM Interiors] is satisfied that [it] has been heard here." At the end of the second day, when the trial court had to turn to another matter on its docket, it instructed GM Interiors to set aside a full day to present its case. But when the day came, and before GM Interiors could present its case, the trial court granted the sanctions motions, struck GM Interiors' pleadings, and entered judgment against it. GM Interiors was not even allowed to proffer to the trial court what it would have proven because the trial court walked off the bench.

We find Martinez v. Bank of New York Mellon, 198 So.3d 911 (Fla. 3d DCA 2016) factually similar and instructive here. Martinez was a foreclosure case. During the bank's case in chief at the bench trial, the trial court struck the borrower's pleadings and entered judgment for the bank as a sanction because the borrower lied and committed perjury. Id. at 912-13. The borrower "objected and requested an opportunity to proffer for the record his objections and position in the case," but the trial court "cut him off and would not allow counsel to finish his proffer." Id. at 913 We reversed, in part, because "the trial court's refusal to allow [the borrower's] counsel to call [the borrower] or any other witnesses to the stand regarding the 'lies and perjury' his client allegedly committed, or even to allow counsel to make a complete proffer to the court, was a denial of due process." Id. at 914 ; see also Kilnapp v. Kilnapp, 140 So.3d 1051, 1054 (Fla. 4th DCA 2014) (reversing because party was denied the opportunity to be heard where "trial court ended the hearing before the husband had the opportunity to call the wife or his forensic certified public accountant, who had already been sworn in by the court to testify").

Conclusion

GM Interiors was given the same treatment as the borrower in Martinez, and we reach the same result. The order striking its pleadings and entering judgment against it is reversed, and the case is remanded for further proceedings on the sanctions motions to give GM Interiors an opportunity to be heard. Sanctions (including the striking of GM Interiors' pleadings) may be appropriate - we express no opinion one way or the other - but they can only be imposed after both parties have been given the opportunity to present their case.

Reversed and remanded for further proceedings.

      The Florida Supreme Court rejected the argument that a trial court abuses its discretion "by not conducting an evidentiary hearing prior to dismissing the case" as a sanction for a discovery violation. Ham v. Dunmire, 891 So.2d 492, 500 (Fla. 2004). Its prior cases, the Court said, did not require "a complete formal evidentiary hearing." Id. But the sanctioned party must be given notice that its pleadings may be stricken, and an opportunity to be heard before they are. See Franchi v. Shapiro, 650 So.2d 161, 162 (Fla. 3d DCA 1995) ("Before this ultimate sanction can be entered, however, a party must be given notice and an opportunity to be heard."); cf. Ham, 891 So.2d at 500 ("As a threshold matter, the trial court did conduct a telephonic hearing on All American's motion for sanctions. According to the trial court, both parties 'elected' to attend the hearing by telephone."). While the trial court has discretion in how it gives the sanctioned party an opportunity to be heard, the opportunity must be given. Here, the trial court chose to have an evidentiary hearing.


author: COHEN, C.J.

text:
    Samantha C. ROTUNDA, Appellant, v. Windham L. ROTUNDA, Appellee.
    Case No. 5D18-166
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 2, 2018
    Raymond J. Rafool and C. Francesca Corallo, of Rafool, LLC, Miami, for Appellant.
    Allison M. Perry, of Florida Appeals, P.A., Tampa, for Appellee.
   COHEN, C.J.

Samantha Rotunda ("Wife") appeals a non-final order awarding her temporary attorney's fees, costs, and suit money during the pendency of the parties' divorce action. Wife claims that the trial court abused its discretion in failing to award her expert fees and attorney's costs and in failing to make findings regarding her attorney's reasonable hourly rate and number of hours expended. Additionally, Wife argues that competent, substantial evidence did not support the award. Windham Rotunda ("Husband") concedes that the court erred by failing to include Wife's attorney's reasonable hourly rate and number of hours expended, but argues that competent, substantial evidence supported the award, which included expert fees and attorney's costs. We reverse.

The parties reside in Hernando County, a rural area of the state near Tampa. Wife is a stay-at-home mother to the parties' two children. She hired a board-certified marital and family law lawyer from Miami with prior experience representing women whose husbands, like hers, were professional wrestlers.

Wife moved for temporary attorney's fees, costs, and suit money. At the evidentiary hearing, Wife's attorney, Raymond Rafool, testified to his hourly rate of $575, with a graduated rate for partners, associates, and paralegals who would presumably be working on the matter. Rafool's attorney's fees, including costs and suit money, exceeded $172,000 at the time of the hearing. He testified that he anticipated incurring almost $69,000 in additional fees through trial.

Husband presented the testimony of Jeffrey Cario, a local lawyer also board-certified in marital and family law. Cario testified that within the Fifth Circuit, which includes Hernando County, a reasonable hourly rate for Rafool's services would be $400 with equivalent adjustments for the remaining members of Rafool's firm. Cario opined that after reviewing Rafool's billing statement charges and reducing his hourly rate, Rafool reasonably earned just over $76,000 in fees. Cario did not express any opinion as to prospective fees or costs.

Both parties hired forensic accountants with similar credentials. As of the date of the hearing, Wife's accountant's fees were approximately $75,000.

Following the hearing, the trial court awarded Wife $50,000 in temporary attorney's fees, costs, and suit money. The order failed to specify which expenses the award was intended to cover and therefore does not provide sufficient information for our review. In Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985), the Florida Supreme Court articulated specific guidelines to assist trial judges in objectively providing attorney's fee awards. The approach involves determining an appropriate reasonable number of hours expended and multiplying that number by a reasonable hourly rate. Id. at 1151. The court explained that doing so "allow[s] parties an opportunity for meaningful appellate review." Id. at 1152. Reasonableness findings are required for temporary fee awards as well. In Kasm v. Kasm, 933 So.2d 48, 49 (Fla. 2d DCA 2006), the Second District reversed and remanded a $10,000 temporary attorney's fee award because the order did not contain findings of reasonableness or explain how the trial court arrived at its determination. The appellate court noted that it was unclear which fees and expenses, past or future, were included in the award. Id. at 50.

Like the temporary award in Kasm, this order does not inform us of the trial court's determination of a reasonable hourly rate and whether this temporary award is intended to only cover fees Wife already incurred or her prospective fees as well. It also does not inform how much, if anything, the court awarded for Wife's forensic accountant's fees. Husband concedes that the trial court was required to make findings regarding Wife's attorney's reasonable hourly rate, reasonable number of hours expended, and anticipated fees and that remand is required for the court to include these findings and explain how it arrived at its determination of a $50,000 award.

Contrary to Husband's contention, we cannot assume that the trial court accepted Cario's testimony as to a $400 reasonable hourly rate, particularly in light of the fact that Husband hired a lawyer from outside this jurisdiction whose hourly rate is $475. Even if that were the trial court's intent, the award of $50,000 falls short of what Cario testified Wife's attorney's fees would be based on a $400 hourly rate and a reasonable expenditure of time as of the date of the hearing. Additionally, the order seems to provide no monies for prospective fees nor does it seem to award any funds to compensate for what both parties recognize as reasonable and necessary expert accounting fees. Wife cannot be forced to use Husband's accountant nor should she be penalized for failing to do so.

We understand the trial court's concern that the litigation costs will significantly impact the assets available for equitable distribution. We hope that the parties are sensitive to this as well. However, we are compelled to find the trial court abused its discretion in awarding Wife only $50,000 in temporary attorney's fees, costs, and suit money and in failing to include findings of reasonableness and an accounting of the award in its order.

REVERSED and REMANDED.

WALLIS and EISNAUGLE, JJ., concur.

      Husband is an independent contractor whose salary is based upon event performances and royalties. Husband's status as an independent contractor makes computation of his net income significantly more complicated than other types of income. The necessity of a forensic accountant was not and is not in dispute.