JERRY WARTSKI, APPELLANT,
v.
PHILIP SENCER AND WALTER SENCER, APPELLEES

Fla. 5th DCA | 1993-03-12
Nos. 92-1590, 92-1591
COBB, J., and COWART, Judge, Retired, concur.
615 So. 2d 794 Florida District Court of Appeal, Fifth District (1993) Positive Treatment
Cited by 9 cases

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Synopsis

Wartski appeals from orders denying his motions to dismiss debt collection complaints filed by the Sencers. The appellate court reverses, holding that the Sencers failed to meet their burden of establishing sufficient minimum contacts with Florida to support personal jurisdiction over the nonresident defendant under Florida's long arm statute.


Holding

The court reversed, holding that the Sencers failed to meet their burden of establishing a proper basis for long arm jurisdiction over Wartski. Once Wartski established his status as a nonresident with affidavits, the burden shifted to the Sencers to provide affidavits establishing jurisdictional facts and minimum contacts, which they failed to do.


Headnotes

[1] A court must first determine if a complaint alleges sufficient jurisdictional facts to fall within the ambit of the long arm statute before considering minimum contacts.

[2] A defendant contesting personal jurisdiction must file affidavits supporting their position, shifting the burden to the plaintiff to establish jurisdiction via affidavits…

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Key Quotes

“In determining whether long arm jurisdiction is appropriate in a given case, two inquiries must be made. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute. Assuming that sufficient facts are alleged to bring the defendant within the ambit of the long arm statute, the trial court must next determine whether the defendant had sufficient 'minimum contacts' with the forum state to satisfy due process requirements.”

Establishes the two-part test for long arm jurisdiction that must be satisfied

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Facts & Procedural History

In 1991, Philip Sencer and Walter Sencer filed separate suits against Wartski individually and Wartco, Inc. to collect on promissory notes totaling $5…

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Opinion of the Court
W. SHARP, Judge.

W. SHARP, Judge.

Wartski appeals from two orders denying his motions to dismiss complaints filed by Philip Sencer and Walter Sencer to collect on promissory notes guaranteed by Wartski. The orders determined that the courts have personal jurisdiction over Wartski,1 a nonresident, under Florida’s long arm statute. On appeal, Wartski argues that the Sencers’ complaints should have been dismissed as to him individually because the Sencers failed to allege and substantiate sufficient jurisdictional facts to show compliance with Florida’s long arm statute and failed to allege facts which would support a finding of “minimum contacts” necessary to sustain jurisdiction over a nonresident defendant. We agree and reverse.

In 1991, Philip Sencer filed suit against Wartco, Inc., a Florida corporation, and Wartski individually to collect payment on a $50,000 promissory note. The complaint alleged in part as follows:

1. This is an action for damages_

2. On February 1, 1991, Defendants executed and delivered a promissory note, a copy being attached, to Plaintiff in Volu-sia County, Florida.

3. Plaintiff owns and holds the note.

4. Defendants failed to pay the note when due.

5. Defendants owe Plaintiff $50,000.00

The promissory note was executed by Wartski, as president of Wartco, and was unconditionally guaranteed by Wartski individually. The note was signed by Wart-ski in New York, acknowledged before a New York notary, was dated February 1, 1991 and required payment to Philip in Wilmette, Illinois on April 1, 1991.

At the same time, Walter Sencer filed a complaint to collect on a $75,000 promissory note executed by Wartco, Inc. and guaranteed by Wartski individually. The note was payable to Walter in New York. In all other regards, the complaint and note were the same as in Philip’s lawsuit. In determining whether long arm jurisdiction is appropriate in a given case, two inquiries must be made. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute. Assuming that sufficient facts are alleged to bring the defendant within the ambit of the long arm statute, the trial court must next determine whether the defendant had sufficient “minimum contacts” with the forum state to satisfy due process requirements. Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla.1989); World Metals, Inc. v. Townley Foundry & Machine Co., Inc., 585 So. 2d 1185 (Fla. 5th DCA 1991); Unger v. Publisher Entry Service, Inc., 513 So. 2d 674 (Fla. 5th DCA 1987), rev. denied, 520 So. 2d 586 (Fla.1988).

The filing of a motion to dismiss on grounds of lack of jurisdiction over the person raises the legal sufficiency of the pleading. A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise the contention of a lack of minimum contacts must file affidavits in support of his position. The burden is then on the plaintiff to show by affidavit the basis upon which jurisdiction may be obtained. Venetian Salami Co.; World Metals.

Here, Wartski filed affidavits stating he was a resident of New York and that the Sencers were residents of New York. The notes themselves indicate payment outside of Florida.2 These allegations show a lack of contact with Florida and the burden shifted to the Sencers to establish the basis upon which jurisdiction may be obtained over Wartski. However, nothing in the Sencers’ complaints, affidavits of indebtedness or the motions for summary judgment addresses the jurisdictional issue. Thus the Sencers failed in their burden of establishing a proper basis for long arm jurisdiction and the trial courts should have granted Wartski’s motions to dismiss.

REVERSED and REMANDED.

COBB, J., and COWART, Judge, Retired, concur. . Fla.R.App.P. 9.130(a)(3)(C)(i).

. In Venetian Salami Co., the Florida Supreme Court opined that the mere failure to pay money in Florida, standing alone, would not suffice to obtain jurisdiction over a nonresident defendant. 554 So. 2d at 503.


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Citator

Cited By

  • Grogan v. Nell Archer, 669 So. 2d 289 (Fla. 5th DCA 1996)
    …3 (1940), reh’g denied, 312 U.S. 712, 61 S.Ct. 548, 85 L.Ed. 1143 (1941)). However, the filing of a motion to dismiss on grounds of lack of personal jurisdiction over the person only raises the legal sufficiency of the pleadings. Wartski v. Sencer, 615 So. 2d 794, 796 (Fla. 5th DCA 1993); Elmex Corp. v. Atlantic Fed. Sav. & Loan Ass’n, 325 So. 2d 58, 62 (Fla. 1st DCA 1976). A defendant desiring to contest the allegations of the complaint or wanting to raise a contention of lack of minimum contacts must file…
  • Suroor Bin Mohammed Al Nahyan v. First Inv. Corp., 700 So. 2d 139 (Fla. 5th DCA 1997)
    …1), Fla. Stat. (1995).2 However, it is the plaintiffs burden to plead facts which clearly establish the applicability of the long arm statute. Palmer Johnson Yachts v. Ray Richard, Inc., 347 So. 2d 779 (Fla. 3d DCA 1977). See also Wartski v. Sencer, 615 So. 2d 794 (Fla. 5th DCA 1993). If the jurisdictional allegations are not sufficient, the trial court lacks personal jurisdiction over the defendant. Pelycado Onroerend Goed B.V. v. [*141] Ruthenberg, 635 So. 2d 1001 (Fla. 5th DCA 1994). As noted above, FIC’s…
  • Hewitt v. Taffee, 673 So. 2d 929 (Fla. 5th DCA 1996)
    …3 (1940), reh’g denied, 312 U.S. 712, 61 S.Ct. 548, 85 L.Ed. 1143 (1941)). However, the filing of a motion to dismiss on grounds of lack of personal jurisdiction over the person only raises the legal sufficiency of the pleadings. Wartski v. Sencer, 615 So. 2d 794, 796 (Fla. 5th DCA 1993); Elmex Corp. v. Atlantic Fed. Sav. & Loan Ass’n, 325 So. 2d 58, 62 (Fla. 1st DCA 1976). A defendant desiring to contest the allegations of the complaint or wanting to raise a contention of lack of minimum contacts must file…

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