Not enough contact, I'm afraid
FLORIDA LAW WEEKLY
VOLUME 45, NUMBER 47
CASES FROM THE WEEK NOVEMBER 27, 2020
ERROR TO FIND PERSONAL JURISDICTION UNDER THE FACTS.
Piazenko v. Pier Marine Interiors, 45 Fla. L Weekly D2579 (Fla. 3rd DCA November 18, 2020):
A Lithuanian company, Aros Marine, was in the business of refurbishing interiors of large yachts and cruise ships, and operated mainly in Europe. The individual defendant was a Lithuanian citizen and 40% co-owner of Aros Marine. The plaintiff, Pier Marine, was a German corporation in the same type of interior refurbishing business as Aros Marine.
Neither the German nor the Lithuanian corporation did business in Florida. However, one of Aros’s principals, Piazenko, created a joint venture Florida corporation, with the hope of establishing a cruise ship interior refurbishment business for Florida projects to be performed in the U.S.
Defendant Piazenko rented office space in Miami-Dade, hired attorneys to do the corporate paperwork, opened a Florida bank account and was a signatory on the account. After the formation of Pier Marine Florida, Piazenko continued to solicit business from certain cruise lines with Florida offices, but none of those solicitations resulted in business from the Florida corporations.
PMI Germany subsequently brought an action in Dade County alleging that the defendants used PMI Germany’s information to improperly compete with Pier Marine Florida, by soliciting and diverting millions of dollars of cruise ship refurbishment business. Because Piazenko visited Miami on behalf of Aros Marine for trade shows, and had solicited business in Miami, the trial court denied the motion to dismiss for lack of jurisdiction.
The court looked at both specific and general jurisdiction. Specific jurisdiction means that the cause of action arises out of an enumerated act committed in Florida, as set forth in the long-arm statute. There are two requirements of connexity, that the defendant’s conduct occurred in Florida and the plaintiff’s cause of action arose from the Florida activity.
In this case, while PMI Germany and Piazenko had contacts with Florida, the factual allegations and the complaint were insufficient to support that Piazenko had committed a tort in Florida. The acts of setting up and obtaining a rental space for the newly formed Florida company opening a corporate bank account and engaging a Florida attorney, does not demonstrate a tort in Florida.
There was nothing in the record to support the allegation that the cruise ship companies who were existing clients of Pier Marine Florida or PMI Germany, had contacted the defendant either in person at a trade show, or via email from Aros Marine while he was a director at Pier Marine Florida. The complaint actually suggested that the alleged tortious acts were committed outside of Florida and outside of the United States by Piazenko in his capacity as marketing director for Aros Marine.
Additionally, Piazenko’s occasional physical presence in Florida to attend trade shows or make one-off corporate solicitations did not demonstrate “substantiated and isolated” activity necessary to support the exercise of general long-arm jurisdiction. Aros Marine had only sporadic and passing contact with cruise lines operating out of Florida, and did not generate business from any Florida contacts which would lead to the conclusion that its affiliations were so continuous and systematic as to render it essentially “at home” in Florida.
BEFORE AWARDING §57.105 FEES, COURT MUST MAKE FINDINGS THAT CLAIM WAS FRIVOLOUS AND COMPLETELY UNTENABLE.
James S. Lavold. Inc. v. Oracle Elevator Co., 45 Fla. L Weekly D2574 (Fla. 3rd DCA November 18, 2020):
The order awarding attorney’s fees pursuant to §57.105 failed to set forth the requisite finding that the claim was frivolous and completely untenable requiring reversal and remand.
TRIAL COURT VIOLATED INSURED’S DUE PROCESS RIGHTS BY GRANTING INSURER’S MOTION FOR RECONSIDERATION AND MOTION FOR SUMMARY JUDGMENT DURING AN UNRELATED HEARING, WHERE NEITHER MOTION WAS NOTICED.
Iriarte v. Citizens Property Insurance Corp., 45 Fla. L Weekly D2593 (Fla. 4TH DCA November 18, 2020):
The circuit court had denied the insurer’s motion for summary judgment months earlier, but at a hearing six days before trial, when the insurer attempted to strike the motion on the insured’s estimator as a trial witness (it was the estimator’s affidavit which led the court to deny summary judgment in the first place because of issues of material fact), the circuit court continued the hearing, directing the estimator to appear for a deposition before it.
During that hearing, the court advised the attorney who attended that he wanted the lead attorney to be there. However, the court was told that the lead attorney did not attend because he was in trial with another judge (the judge confirmed that was not true).
At the continued hearing, the insured’s lead counsel did not appear (another attorney did), even though he was specifically instructed to be there. The insured’s other counsel advised that the estimator had refused to be deposed, and then asked the court to replace the estimator with another witness.
The judge then wanted to rehear the summary judgment, which plaintiff’s counsel said he was not prepared to argue. Still, the judge observed that everyone should be well familiar with the case issues so close to trial, ruling to grant the motion for summary judgment, and to deny the insured’s motion for rehearing.
The appellate court acknowledged how frustrating it was for the trial judge to have to face the unprofessional lawyering that was involved in the case, but found that due process principles required reversal. While the trial judge may reconsider interlocutory rulings, the inherent authority to do so is subject to due process requirements.
Because the circuit court never gave any indication it was going to reconsider the original summary judgment order until the middle of the hearing on the insurer’s motion to strike a witness, the insured was denied due process.