MABEL V. WAYE AND NAPOLEON WAYE, HER HUSBAND, APPELLANTS,
v.
PHILLIP M. EDDINGS, ESQUIRE; STEPHEN L. BERRY, ESQUIRE; AND EDDINGS AND BERRY, ATTORNEYS AT LAW, APPELLEES
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Appellants Mabel and Napoleon Waye appealed the dismissal of their lawsuit against attorneys Eddings and Berry based on lack of personal jurisdiction. The court reversed the dismissal, holding that the defendants' affidavit was legally insufficient to rebut the allegations of jurisdiction pleaded in the complaint.
The court held that the affidavit was legally insufficient to refute the jurisdictional allegations because it failed to address key allegations that appellees operated a business venture in Florida and committed a tortious act in Florida. Accordingly, the defendants' burden was not met, and the trial court should have denied the motions to dismiss.
[1] A defendant wishing to contest jurisdiction must file affidavits in support of their position.
[2] When a defendant files affidavits contesting jurisdiction, the burden shifts to the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.
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Join FLexlaw to unlock all legal intelligence“By itself, the filing of a motion to dismiss on grounds of lack of jurisdiction over the person does nothing more than raise the legal sufficiency of the pleadings_ A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of [lack of] minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.”
Establishes the Venetian Salami procedure for determining personal jurisdiction in motions to dismiss
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Join FLexlaw to unlock all legal intelligenceAppellants filed a complaint against appellees, who are attorneys, alleging they operated a business in Florida, committed a tortious act in Florida, …
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WEBSTER, Judge.
Appellants (plaintiffs in the trial court) seek review of a final order by which appel- lees (defendants in the trial court) were dismissed on the ground that the trial court lacked personal jurisdiction over them. Because we conclude that the affidavit upon which appellees relied to support their contention that the trial court lacked personal jurisdiction over them was legally insufficient to raise a genuine issue regarding jurisdiction, we reverse.
In Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla.1989), the court outlined the proper procedure in such cases:
Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts.... By itself, the filing of a motion to dismiss on grounds of lack of jurisdiction over the person does nothing more than raise the legal sufficiency of the pleadings_ A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of [lack of] minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.
(Citations omitted.) Appellants met their initial burden pursuant to this procedure, alleging in their complaint (in the language of the applicable statute) that appellees
operated, conducted, engaged in, or carried on a business or business venture in this state or had an office or agency in this state;
committed a tortious act within this state;
breached a contract in this state by failing to perform acts required by the contract to be performed in this state[; and/or]
caused injury to persons within this state arising out of an act or omission outside of this state by the defendant and, at the time of injury, the defendant was engaged in solicitation or service activities within this state which resulted in such injury.
Appellees responded with motions to dismiss for lack of personal jurisdiction which, pursuant to the Venetian Salami procedure, merely placed in issue the legal sufficiency of appellants’ allegations. At that point, the burden shifted to appellees to submit affidavits containing representations which, if true, would be legally sufficient to refute appellants’ allegations.
To meet their burden, all of the appellees relied upon the affidavit of appellee Berry. That affidavit consists of only approximately one page of substantive material, in six numbered paragraphs. Our review of the Berry affidavit satisfies us that, accepting as true all of the representations made, it is legally insufficient to refute the allegations regarding jurisdiction made in the complaint. Among other shortcomings, the affidavit fails to address the allegation that appellees “operated, conducted, engaged in, or carried on a business or business venture” in Florida; and the allegation that appellees “committed a tortious act” in Florida.
Having failed to carry their burden of presenting by affidavit representations which, if true, would be legally sufficient to refute the allegations regarding jurisdiction made in the complaint, the burden never shifted to appellants to respond by affidavit in support of their position. Accordingly, the trial court should have denied the motions to dismiss for lack of personal jurisdiction. Because, instead, it granted those motions, we reverse, and remand for further proceedings.
REVERSED and REMANDED.
ALLEN and LAWRENCE, JJ., concur.
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Martin Acquadro, M.D. v. Bergeron, 851 So. 2d 665 (Fla. 2003)…So. 2d at 502. In order to prevail on a motion to dismiss, a defendant must file an affidavit containing allegations, which if taken as true, show that the defendant’s conduct does not make him or her amenable to service. See, e.g., Waye v. Eddings, 638 So. 2d 582, 583 (Fla. 1st DCA 1994); Atlas Aircraft Corp. v. Buckingham, 302 So. 2d 163, 164 (Fla. 4th DCA 1974). Additionally, the affidavits submitted must contain something “more than the assertion of legal conclusions.” Rever v. Lapidus, 151 So. 2d 61, 62…
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Lampe v. Hoyne, 652 So. 2d 424 (Fla. 2d DCA 1995)…y be excused from the requirement of filing an opposing affidavit when the nonresident defendant’s affidavit does not sufficiently refute the jurisdictional allegations; in such a case, the burden never shifts back to the plaintiff. Waye v. Eddings, 638 So. 2d 582 (Fla. 1st DCA 1994). In this case, Lampe filed an affidavit challenging the factual basis for jurisdiction. Hoyne failed to submit an opposing affidavit and asserted that her burden was met by Lampe’s affidavit. JURISDICTION OVER LAMPE AS TRUSTEE…
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UNC Ardco, Inc. v. Luckner, 685 So. 2d 29 (Fla. 4th DCA 1996)…s only the allegation that Unc was the plaintiffs employer, leaving-intact the allegation that she worked for Unc Ardeo. Unc Ardeo has, therefore, failed to carry its burden of refuting the plaintiffs jurisdictional allegations. See Waye v. Eddings, 638 So. 2d 582 (Fla. 1st DCA 1994). Accordingly, the trial court correctly denied the motion to dismiss the complaint as to appellant Unc Ardeo. See id. AFFIRMED IN PART; REVERSED IN PART; and REMANDED with direction that the motion to dismiss be granted as to ap…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Venetian Salami Co. v. J.S. Parthenais, 554 So. 2d 499 (Fla. 1989)