TERUGOSHI KOTOURA A/K/A KATSURA KAN, APPELLANT,
v.
TIBOR STERN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SHARON STERN, APPELLEE

Fla. 4th DCA | 2016-01-20
No. 4D15-1321
CIKLIN, C.J., GROSS and MAY, JJ.,' concur.
183 So. 3d 1245 Florida District Court of Appeal, Fourth District (2016) Positive Treatment
Cited by 4 cases

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Synopsis

In a wrongful death action, the Florida Fourth District Court of Appeal reversed the trial court's denial of the defendant's motion to dismiss for lack of personal jurisdiction and remanded for a limited evidentiary hearing. The court found that conflicting affidavits regarding whether a Japanese national defendant communicated with the decedent while she was in Florida required judicial resolution through live testimony before jurisdiction could be established.


Holding

The court reversed the denial of the motion to dismiss and remanded for a limited evidentiary hearing to resolve the conflicting affidavits on jurisdictional issues. When affidavits submitted by parties cannot be reconciled, the trial court must hold a hearing to determine jurisdictional facts, focusing on whether the defendant's conduct and connections with Florida are such that he should reasonably anticipate being haled into court there.


Headnotes

[1] A defendant may commit a tortious act in Florida through telephonic, electronic, or written communications into Florida, provided the cause of action arises from those co…

[2] When affidavits submitted by parties in support of and in opposition to a motion to dismiss for lack of personal jurisdiction contain irreconcilable conflicts, a limited…

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Key Quotes

“A defendant can commit a tortious act in Florida through "telephonic, electronic, or written communications into Florida. However, the cause of action must arise from the communications."”

Establishes the requirement that long-arm jurisdiction based on communications requires that the cause of action arise from those communications

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Facts & Procedural History

Appellant Kotoura is a Japanese national who has never been to Florida. The decedent (Sharon Stern) was in Broward County, Florida. Appellant filed an…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

We reverse in part the trial court’s order denying appellant’s motion to dismiss for lack of personal jurisdiction and remand for the trial court to conduct a limited evidentiary hearing on jurisdictional issues.

Appellant, the defendant below, is a Japanese national, who has never been to the Florida. In the amended complaint, plaintiff has alleged long arm .jurisdiction based on defendant’s communications with the decedent while she was in Broward County. See § ,48.193(1)(a)2., Fla. Stat. (2015). The law is clear that a defendant need not be physically present in Florida for long arm jurisdiction to exist. Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla.2002). A defendant can commit a tortious act in Florida through “telephonic, electronic, or written communications into Florida. However, the cause of action must arise from the communications.” Id, (emphasis supplied).

Appellant filed an affidavit-in support of his motion to dismiss asserting that he never spoke with decedent while she was in Florida and denying that he committed any tortious conduct in Florida. Plaintiff responded and filed affidavits with conflicting allegations, asserting that decedent’s'parents observed defendant communicating with the decedent while she was in Florida. Plaintiff also submitted a number of e-mails. While a few of the e-mails appear to be from defendant to the decedent, the communications in those e-mails do not constitute the commission of tor-tious conduct in Florida for purposes of long arm jurisdiction. There was no showing that any of the causes of action in the *1247amended complaint arose from those communications.

Pursuant to the procedure announced in Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla.1989), when the affidavits submitted by the parties cannot be reconciled,' the trial court is required to hold a limited evidentiary hearing to determine the jurisdictional issues. E.g., Balboa v. Assante, 958 So.2d 573, 575 (Fla. 4th DCA 2007).

The affidavits submitted by -the parties in this ease cannot be reconciled. Plaintiff alleges that defendant committed tortious conduct through communications with the decedent in Florida, and defendant denies any such communications. Accordingly, we reverse and remand for the court to conduct a limited evidentiary hearing on the jurisdictional issues.

We decline to reach appellant’s .argument that hejacks sufficient minimum contacts with Florida under the second prong of the Venetian Salami analysis. The trial court should consider the evidence presented at the hearing, including the extent, nature and timing of defendant’s alleged communications with decedent in Florida, in deciding this issue. The inquiry should focus on whether the defendant’s “conduct and connection with the fdrum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 569, 62 L.Ed.2d 490 (1980). We affirm as to the other issues argued in this appeal without discussion.

Affirmed in part, reversed in part, and remanded.'

CIKLIN, C.J., GROSS and MAY, JJ.,' concur.


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Citator

Cited By

  • Packaging & Distrib. Res., LLC. v. Duke Realty Ltd., 194 So. 3d 509 (Fla. 4th DCA 2016)
    …ues of personal jurisdiction because the affidavits and deposition, particularly those of the CEO, cannot be reconciled with respect to the extent of each guarantor’s contacts with the debt- or/tenant or with Florida generally. See Kotoura v. Stern, 183 So. 3d 1245, 1247 (Fla. 4th DCA 2016). As in Kotoura, we decline to reach appellants’ argument that they lack sufficient minimum contacts with Florida to satisfy the Fourteenth Amendment’s due process requirements as outlined in Venetian Salami. See id. Under t…

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