BRP-ROTAX GMBH & CO KG, ETC.

v.

SUSAN L. CICCOLINI, ETC.

Third District Court of Appeal

State of Florida

Opinion filed March 5, 2025. Not final until disposition of timely filed motion for rehearing.

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No. 3D23-1215 Lower Tribunal No. 21-154-M

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BRP-Rotax GMBH & Co KG, etc.,

Appellant,

vs.

Susan L. Ciccolini, etc.,

Appellee.

An Appeal from a non-final order from the Circuit Court for Monroe County, Mark H. Jones, Judge. Cole, Scott & Kissane, P.A., and Thomas E. Scott and Francesca M. Stein, for appellant. Podhurst Orseck, P.A., and Stephen F. Rosenthal, Christina H. Martinez, and Kristina M. Infante, for appellee. Before EMAS, GORDO and LOBREE, JJ. EMAS, J.

BRP-Rotax GMBH & Co KG (“Rotax”) appeals an order denying its motion to dismiss for lack of personal jurisdiction following a non-evidentiary hearing. We reverse and remand for an evidentiary hearing, because the competing affidavits and other similar sworn proof submitted by the parties, in satisfaction of their respective burdens, created disputed issues of jurisdictional fact, and could not be harmonized or resolved without an evidentiary hearing.

In Florida, we apply the well-established, two-pronged inquiry set forth in Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989) to determine whether a Florida court may properly exercise personal jurisdiction over a nonresident defendant. Pertinent to this appeal, we have often observed that a key component of the Venetian Salami analysis is its allocation of the burden of proof. Initially, the plaintiff bears the burden of pleading sufficient jurisdictional facts to fall within the long-arm statute. Venetian Salami, 554 So. 2d at 502. “If the allegations in the complaint sufficiently establish long-arm jurisdiction, then the burden shifts to the defendant to contest the jurisdictional allegations in the complaint, or to claim that the federal minimum contacts requirement is not met, by way of affidavit or other similar sworn proof.” Belz Investco Ltd. P'ship v. Groupo Immobiliano Cababie, S.A., 721 So. 2d 787, 789 (Fla. 3d DCA 1998) (citing Venetian Salami, 554 So. 2d at 502; Field v. Koufas, 701 So. 2d 612 (Fla. 2d DCA 1997)). “If properly contested, the burden then returns to the plaintiff to refute the evidence submitted by the defendant, also by affidavit or similar sworn proof.” Id. If the parties' sworn proof is in conflict, “the trial court must conduct a limited evidentiary hearing to resolve the factual dispute.” Id. Fincantieri–Cantieri Navali Italiani S.p.A. v. Yuzwa, 241 So. 3d 938, 941-42 (Fla. 3d DCA 2018).

In the instant case, Ciccolini’s operative complaint alleged sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, thus shifting the burden to Rotax to contest the jurisdictional allegations or to assert that the minimum contacts requirement was not met. Rotax filed its response, including declarations by two Rotax employees, directly refuting the material jurisdictional allegations of the operative complaint, thus returning the burden back to Ciccolini to refute the evidence submitted by Rotax by affidavit or similar sworn proof. Ciccolini responded to the motion to dismiss, taking issue with many of the averments contained in Rotax’s declaration; asserting for example that Rotax does purposely target the United States and Florida, and that this is established in part by publicly available information on Rotax’s own website. Ciccolini’s response referenced several of these online sources, excerpting and attaching various exhibits, including online press releases, photos and videos of Rotax employees attending a number of trade shows in Florida and promoting Rotax engines at those Florida events. Attached to the response was the declaration of Ciccolini’s counsel, attesting that she visited the online sites referenced in the response, that the website pages excerpted and contained in its response are true and correct representations of the material depicted on the website, and that the vast majority of the excerpts and exhibits are from Rotax’s own website and social media pages.¹ The trial court conducted a non-evidentiary hearing on January 31, 2023, permitted additional post-hearing submissions, and thereafter determined that the court could properly exercise personal jurisdiction over Rotax under Florida’s long-arm statute.

Upon our review of the record, and applying a de novo standard, see Wendt v. Horowitz, 822 So. 2d 1252, 1256 (Fla. 2002), we hold the trial court erred in failing to conduct an evidentiary hearing before making its jurisdictional determination. The competing affidavits and other similar sworn proof submitted by the parties, in satisfaction of their respective burdens, created disputed issues of jurisdictional fact, and could not be harmonized or resolved without an evidentiary hearing. We therefore reverse and remand for the trial court to conduct a limited evidentiary hearing and for other proceedings not inconsistent with this opinion.