Skip to main content
The Week In Torts – Cases from February 16, 2024
We need to reconcile…
FLORIDA LAW WEEKLY
VOLUME 49, NUMBER 7
CASES FROM THE WEEK OF FEBRUARY 16, 2024
DEFENDANT WHO TIMELY OBJECTED TO PERSONAL JURISDICTION DID NOT WAIVE THAT OBJECTION AS HE PARTICIPATED IN THE LAWSUIT, BUT DID NOT SEEK AFFIRMATIVE RELIEF
Biose v. Orasan, 49 Fla. L. Weekly D335 (Fla. 4th DCA Feb. 7, 2024):
The plaintiff filed her lawsuit against the defendant who was a Georgia resident. She asserted claims for fraud and civil conspiracy.
The defendant filed an answer to the initial complaint (his first pleading) raising lack of personal jurisdiction as an affirmative defense. Thereafter, the defendant propounded discovery, filed a witness list and a mandatory arbitration case summary, and appeared at case management conferences.
The plaintiff filed a fourth verified amended complaint asserting that the defendant’s acts and transactions giving rise to the claims occurred in Broward County, and that the defendant conducted or solicited business in Broward County. The complaint further alleged that many of the named defendants, including the Georgia defendant, had contacted the plaintiff directly, making misrepresentations to induce her to transfer funds. The defendant was included in those people.
The defendant allegedly held himself out as a diplomatic immunity courier delivery agent for a security company, tasked with traveling to Florida to deliver a package to the plaintiff, the contents of which she could sell to recoup her money. The complaint also alleged that the plaintiff had been induced to make several transfers to accounts that the defendant controlled directly or indirectly.
The defendant argued that the complaint failed to demonstrate a jurisdictional basis under the long arm statute, and also that plaintiff failed to show he had sufficient contacts in Florida to comport with due process.
The plaintiff responded to the defendant’s motion but did not attach sworn proof supporting personal jurisdiction. After hearing an argument at a non-evidentiary case management conference, the court denied dismissal.
A defendant who timely objects to personal jurisdiction may participate in the trial of the suit to the extent that he or she is defending the matter on the merits. However, even a timely objection is waived when the defendant goes beyond matters of defense, and seeks affirmative relief (meaning the kind of relief where a defendant might maintain an action independently of the plaintiffs’ claims, such as the assertion of a permissive counterclaim.
While the defendant did participate in discovery, filed a witness list and served a mandatory arbitration case summary, he did not seek affirmative relief, and thus there was no waiver.
The court agreed that the plaintiff successfully alleged multiple basis for long arm jurisdiction over the defendant. However, the defendant moved to dismiss and attached an affidavit, which adequately rebutted the operative verified allegations.
While the plaintiff did not attach an affidavit to her response to the motion, she did properly verify her complaint to support her allegations of jurisdiction. However, those allegations could not be reconciled with the defendant’s affidavit, necessitating an evidentiary hearing to resolve the disputed facts.
Because the trial court erred in summarily denying dismissal, the court reversed and remanded for a limited evidentiary hearing pursuant to Venetian Salami.
TRIAL COURT ABUSED DISCRETION IN DENYING PLAINTIFF’S MOTION TO VACATE ORDER OF DISMISSAL ENTERED AFTER PLAINTIFF’S COUNSEL FAILED TO APPEAR AT CASE MANAGEMENT CONFERENCE – – MOTION SHOULD HAVE BEEN GRANTED WHERE TRIAL COURT DID NOT EXPLICITLY FIND THAT THE PLAINTIFFS ACTIONS WERE WILLFUL, FLAGRANT, DELIBERATE OR OTHERWISE AGGRAVATED, AND THE UNDISPUTED EVIDENCE AT THE HEARING HELD ON THE MOTION SHOWED COUNSELS FAILURE TO ATTEND WAS A CALENDARING ERROR
Little v. Turnbow, 49 Fla. L. Weekly D342 (Fla. 5th DCA Feb. 9, 2024).
It seems almost weekly that an appellate court throws out a rightfully frustrated trial judge’s sanctions for not following the proper procedures or standards. Always be mindful of these requirements when seeking such sanctions.