M FELIX (MDPA) FRESHWATER

v.

ADVANCED INVENTORY MGMT INC

' An Appeal from the County Court for Miami-Dade County, Andrew S. Hague, Judge. A Frank F. Owen, of The

F. Owen & Associates, P.A., d/b/a TCPA Law Firm, for

Appellant. I . ' . ' Sara Elizabeth Dill, of Layv Offices of Sara Elizabeth Dill, for Afipellees. Before KARLAN, ECHARTE, JR., and EIG, JJ.

EIG, J.

" M. Felix Freshwater, MD, PA (“Freshwater”) appeals a dismissal of its complaint against Advanced Inyeintory Management lnc., a/k/a ESutures.com and Anthony Iaderosa‘ (“Appellees”) ' Appellees Advanced Inventory Management Inc, a/k/a ESulures.c0m, is an Illinois Corporation. Anthony Iaderosa is the President and Agent of Advanced Inventory Management 9.. [*2] for lack of personal jurisdiction. We reverse because the complaint alleges sufficient jurisdictional facts to bring the action against Appellees within Florida’s long- arm statute, and Freshwater demonstrated that there were sufficient minimum contacts in Florida to satisfy due process requirements for personal jurisdiction. ‘

FACTS AND PROCEDURAL HISTORY

" ' Freshwater’ filed suit against Appellees alleging violation of the Telephone Consumer Protection Act (TCPA),2 conversion, and trespass to chattels. The basis of Freshwater’s suit stems from Appellees purchasing a directory ofphysicians, and sending five unsolicited faxes to them. Appellees’ counsel filed a motion to dismiss, supporting memorandum of law, and affidavits for the limited purpose of challenging personal jurisdiction. The trial court held a hearing on Appellees’ motion to dismiss for lack of personal jurisdiction, and rendered a decision in favor ofthe Appellees. Subsequently, Freshwater filed an appeal. - STAN‘DARD_QE REVIEW‘ ' In reviewing a lower court’s ruling on a motion to dismiss for lack of personal jurisdiction, an appellate court conducts a de nova review. See Wendt v. Horowitz, 822 So. 2d 1252, l256~57 (Fla. 2002); American Exp. Ins. Services Europe Lid. v. Duvall, 972 S0. 2d 1035, i038 (Fla. 3d DCA 2008). In conducting a de nova review, the appellate court uses the trial court's record, but reviews the evidence and law without deference to the trial court's rulings. Blacks Law Dictionary (9th ed. 2009). Inc. - The TCPA provides for exclusive state court jurisdiction of private actions for unsolicited advertisements via a facsimile machine. Int’! Sci. & Tech. Inst, Inc. v. Inacom C0mmc’ns., Ina, 106 F. 3d 1146, 1152 (4th Cir. 1997); see also 47 U.S.C. §227(b)(3)(A)~(B)_ (2010) (a person or entity-may. bring an action in state court for violation of the act for an amotmt of $500 in damages for eachiviolation). V g . [*3] DISCUSSION In Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), the Florida Supreme Court established a two prong test to determine whether a Florida tribunal has long~arm jurisdiction over a nonresident defendant. First, it must be determined whether the complaint alleges sufficient jurisdictional facts to bring the action within the parameters of the statute that subjects a non-resident to personal jurisdiction within the state. If an affirmative answer to the t first prong is met, then the next inquiry is whether suflicient minimum contacts are demonstrated to satisfy due process requirements, such that the suit does not offend traditional notions of fair play and substantial justice. Id. at 502. ' Freshwater contends (1) it satisfied the first prong of the two part test established in Venetian Salami because its Complaint alleges sufficient jurisdictional facts to satisfy section 48.193(l)(b) of the Florida Statutes and (2) Appellees’ actions of sending five unsolicited faxes to Freshwater constituted a tortious act, which was a violation under the Telephone Consumer Protection Act ('l‘CPA).3 We agree. . 3 Under section 227(b)(1)(C) of the United States Code, Congress determined that it shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States: to use any telephone facsimile machine, computer, or other device to send, to a ' telephone facsimile machine, an unsolicited advertisement, unless- (i) - the unsolicited advertisement is from a sender with an established business . relationship with the recipient; ' (ii) the sender obtained the number of the telephone facsimile machine ' ' through-v A ' - (1) the voluntary communication of such number, within the context of such established business relationship, fiom the recipient of the unsolicited advertisement, or [*4] A. Satisl"3_m1_ggsthe First Prong of the I/eneL'qn Salami Test for Personal Jurisdiction _ Regarding the first prong of the test, section 48.193 _cf the Florida Statutes subjects a nonresident to personal jurisdiction within the state. Here, the relevant statutory provisions are sections 48.l93(l)(a), 48.l93(1)(b), and 48.l93(1)(t), Florida Statutes (201 1).‘ In its Complaint, '(II) a directory, advertisement, or site on the Intemet to which the . _ recipient voluntarily agreed to make available its facsimile number for public distribution, V except that this clause shall not apply in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before July 9, V 2005, ifthe sender possessed the facsimile machine number ofthe recipient before such date ofenactment; and (iii) the unsolicited advertisement contains a notice meeting the requirements under paragraph (2)(D), except that the exception under clauses (i) and (ii) shall not apply with l "respect to an unsolicited advertisement sent to a telephone facsimile machine by a sender to whom a request has been made not to send future unsolicited advertisements to such telephone facsimile machine that ' complies with the requirements under" paragraph (2)(E); 47 U.S.C. §'227(b)(l)(C)(20lU). ' ' ' " These statutory sections denote the following: (lg) Any person, whether or not a citizen or resident of this state, who personally or through ‘an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, ifhe or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing ofany ofthe following acts: (a)' Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state. (b) Committinga tortious act within this state. (t) Causing injury to persons or property within this state arising out of an actor omission by the defendant outside this state, if, at or about the time of the injury, either: , ' 1. The defendant was engaged in solicitation or service activities within this state; - [*5] Freshwater alleged personal jurisdiction against Appellees pursuant to sections 48.l93(l)(a) and 48.193(l)(b).5 In addition, the sending of telephonic, electronic or written communications into Florida may form the basis for personal jurisdiction under section 48.l93(l)(b) if the alleged cause ofaction arises from the communications. Wendi v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002). - In Werrdt, investors‘ filed a class action against the broker for promoting the sale of worthless notes. Id. at 1254. The broker filed a third-party complaint against a Michigan attorney and his law firm. The broker alleged that he relied to his detriment on legal advice from the Michigan attorney, who was not licensed in Florida. The broker argued that personal jurisdiction over the Michigan attorney was proper because the attorney negligently responded in OI‘ A ' . _ 2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary courseofcommerce, trade, or use. §§4s.19a(1)(a), (1)c»), and (1)6). Fla. set. (2011). 5 In part, the Complaint states the following: Defendant(s),

ADVANCED

INVENTORY

MANAGEMENT

INC

AKA

ESU'I'URES.COM and ANTHONY IADEROSA, transact business within this state as contemplated by Florida Statutes §48.l93(l) (a) and this cause of action arises out of such acts. - Defendant(s),

ADVANCED

INVENTORY

MANAGEMENT

INC

AKA

ESUTURESCOM and ANTHONY IADEROSA, have committed one or more tortuous (sic) acts in Florida as contemplated by Florida Statute §48.l93(1)(b) and this cause arises out of such acts. Defendant(s),

ADVANCED

INVENTORY

MANAGEMENT

INC

AKA

ESUTURESCOM and ANTHONY IADEROSA’s tortuous (sic) acts include breaches of the Telephone Consumer Protection Act: 47 U.S.C. §227 and such H tortuous (sic) acts are the direct and proximate causes ofPlaintiffs damages. Defendant(s), . ADVANCED

INVENTORY

MANAGEMENT

INC

AKA

_ ESUT_URES.COM and ANTHONY IADBROSA or its agent(s) cause to be sent or allowed to be sent, an unsolicited advertisement(s) by fax to Plaintiff's telephone facsimile machine at the above fax telephone number on 10/23/2006, 1/31/2007, 3/21/2007, 8/20/2007, and 10/9/2007. (Exhibit “A”) . - w [*6] writing to an investigation by the Division of Securities and negligently drafted loan documents that were intended for Florida residents. Id. at 1255. The trial court ruled in favor of the broker and denied the attorney’s motion to dismiss for lack of personal jurisdiction. Id. at 1256. The appellate court reversed the matter and held that personal junsdiction over the Michigan attorney was improper under section 48. l93(1)(b) because no tortious act was committed in Florida. Id. In reversing the appellate court in Wendi‘, the Florida Supreme Court noted that the Fifth District -took a more restrictive view of “committing a tortious act” to establish personal jurisdiction under section 48.l93(1)(b), by suggesting that a nonresident defendant must be physically present to commit a tortious act” Id. at I259. The Florida Supreme Court held that (1) physical presence is not required to establish personaljurisdiction under section 48.193(l)(b), and (2) although the Florida Supreme Court was not determining if personal jurisdiction was established in the Wendi case, telephonic, electronic or written communications into Florida may form the basis for personal jurisdiction under section 48.193p(l)(b) if the alleged cause of action arises fi'on1 the communications. Id. at 1260. Further, the Florida Supreme Court noted that the court must review the allegations in the complaint to determine if a cause ofaction is stated. Id. Here, the Complaint alleges sufficient facts to satisly section 48.193(l)(b) of the Florida Statutes. First, Freshwater alleged that communications were made into Florida. Second, the com_munications'- the advertising facsimiles - were unsolicited. Third, the sending of the unsolicited advertisements via facsimile could constitute a violation of the TCPA. Because the communications were directed to reach a specific recipient in Florida, Appellees‘ actions of making telephonic communications into Florida from outside of the State may constitute “committing a tortious act,” if the alleged cause of action arises firom the communications. Wendi, 822 So. 2d at 1260. The alleged violation of the TCPA arose from the communications of Appellees sending unsolicited advertisements to the Appellee. Thus, F1'eshwater’s Complaint ~ | n [*7] alleges sufficient jurisdictional facts to bring the action within the parameters of section 48. l 93(l)(b) of the Florida Statutes. Accordingly, Freshwater satisfied the first prong of the two part test required to establish personal jurisdiction over a nonresident defendant. B. Satisfying the Second Piling of_the Vlenetian Salami Test for Personal Jurisdiction in establishing personal jurisdiction over nonresidents, the court must also consider whether there are sufficient “minimum contacts” to satisfy due process requirements. Venetian Salami, 554 So. 2d at 502. “The Due Process Clause protects an individual's libeny interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (I985) (citing International Shoe Co. v. Washington, 326 U.S., at 319, 66 S. Ct. at I60 (1945)). Further, if a defendant has “purposely directed” his activities at residents of the forum, then this activity may subject him to thejurisdiction of a foreign sovereign. Id. _ . Moreover, to satisfy the minimum contacts requirements for purposes ofpersonal jurisdiction (1) the contacts must be related to the plaintiffs cause of action or have given rise to it, (2) the contacts must involve some purposeful availment ofthe privilege ofconducting activities within the forum, thereby invoking the benefits and protections of its laws and (3) the defendant’s contacts within the forum state must be such that he or she should reasonably anticipate being haled into court there. Scuiptchair, Inc. v. Century Arts, Ltd., 94 F. 3d 623, 631 (1 lth Cir. I996); see also Corporacion Aero Angeles v. Fernandez & Fernandez Aviation, LLC, 69 So. 3d 295, 299 (Fla. an DCA 2011). Appellees argue that Freshwater failed to provide contradicting affidavits or meet its burden of proof in showing compliance with due process. In examining the record, we disagree with Appellees’ assertion. First, Appellees sent unsolicited faxes to Freshwater on several occasions. These unsolicited communications are the basis ofFreshwater’s cause ofaction under the TCPA. _ [*8] i._ . ......_i. Second, Appellees’ actions of sending five unsolicited faxes, over an eleven month period, support the contention that Appellees purposefizlly directed their activities toward Florida. As such, Freshwater satisfied the second prong outlined in Venetian Salami to establish personal jurisdiction over a nonresident. H 7 ~- Additionally, Appellees filed a Motion for Attorney’s Fees, Costs and Sanctions, based on section 57.10S(l) of the Florida Statutes,“ as well as Florida Rules of Appellate Procedure 9.4007 and 9.4l0.8. In its motion, Appellees contend that “[t]he filing of this lawsuit and pursuit ofthe appeal are without legal or factual merit, frivolous, and simple investigation prior to filing ‘ Section s"/.ros(1) ofthe Florida Statutes (2011) provides in part: [u]pon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the I prevailing party in equal amounts by the losing party and the losing party’s ‘ attorney on any claim or defense at any time during a civil proceeding or action in . which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before triai: ‘ . (a) Was not supported by the material facts necessary to establish the claim or defense; or . (b) Would not be supported by the application of then-existing law to those material facts. , ’ - Florida Rule ofAppellate Procedure 9.400(b) states: [w]ith the exception of motions filed pursuant to rule 9.4l0(b), a motion for attorneys’ fees may be served not later than the time for service ofthe reply brief and shall state the grounds on which recovery is sought. The assessment of attorneys’ fees may be remanded to the lower tribunal. If attorneys‘ fees are assessed by the court, the lower tribunal may enforce the payment. r . 8 FloridaRule ofAppellate Procedure 9.4l0(a) provides: [a]fier 10 days’ notice, on its own motion, the court may impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other paper that is fiivolous or in bad faith. Such sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal ofproceedings, costs, attorneys’ fees, or other sanctions. ' [*9] would have alerted the Appellant that Florida is not the proper jurisdiction over the Appellees.” Because we find merit in Freshwater’s arguments that its complaint alleges personal jurisdiction over a nonresident pursuant to Florida’s long-arm statute, and minimum contacts were established to satisfy due process requirements, we deny Appellees’ motion for attorney’s fees. Accordingly, this matter is REVERSED and REMANDED. KARLAN and ECHARTE, JR., JJ., concur. t

KQOPIES FURNISHED TO COUNSEL

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OF RECORD AND TO ANY PARTY

- NOT REPRESENTED BY COUNSEL ' | iii _ _ ___ __ _____ ii