Packaging & Distribution Resources, LLC., Global Beauty Group, LLC., GT Partners Limited Liability USA, LLC., and Lantier USA LLC. v. Duke Realty LTD., D'Arcy Acquisition, LLC., and Marlene D'Arcy, Inc. , 2016 Fla. App. LEXIS 8827 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PACKAGING & DISTRIBUTION RESOURCES, LLC., GLOBAL BEAUTY
GROUP, LLC., GT PARTNERS LIMITED LIABILITY USA, LLC., and
LANTIER USA LLC.
Appellants,
v.
DUKE REALTY LTD., D’ARCY ACQUISITION, LLC., and MARLENE
D’ARCY, INC.
Appellees.
No. 4D15-2124
[June 8, 2016]
Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Sandra Perlman, Judge; L.T. Case No.
CACE11009811 (04).
Howard D. DuBosar and Robert C. Sheres of DuBoser Sheres, P.A.,
Boca Raton, for appellant, Packaging & Distribution Resources, LLC.
William E. Calnan of Waldman Trigoboff Hildebrandt Marx & Calnan,
P.A., Fort Lauderdale, for appellee, Duke Realty Ltd.
CONNER, J.
Appellants, nonresident limited liability companies, seek review of a
non-final order denying their motion to dismiss for lack of personal
jurisdiction. We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(C)(i). For
the reasons below, we reverse and remand for a limited evidentiary
hearing.
In the case below, following nonpayment of rent, a landlord sued its
commercial tenant for eviction and damages for past due rent, joining the
appellants as defendants. The appellants were guarantors of the tenant’s
performance on the lease. The tenant’s chief executive officer (CEO) was
also CEO for each of the guarantors.
The complaint included the requisite allegations that each guarantor,
as a foreign limited liability company, was duly authorized and conducting
business in Florida. Venetian Salami Co. v. Parthenais, 554 So. 2d 499,
502 (Fla. 1989). Consequently, the burden shifted to the guarantors to
contest the court’s personal jurisdiction over them by filing a motion to
dismiss, supported by a legally sufficient affidavit or other sworn proof to
contest the complaint’s jurisdictional allegations. Id. The guarantors
moved to dismiss the complaint alleging lack of personal jurisdiction over
them and supported the motion with affidavits, thus shifting the burden
to the landlord plaintiff to respond accordingly. The plaintiff responded by
filing a transcript of the CEO’s deposition. The trial court denied the
motion to dismiss after considering the parties’ arguments based on the
affidavits and deposition, but the trial court did not articulate at the
hearing or in its order the reasoning or the findings as to disputed issues
of fact regarding the extent of contact each debtor has had with Florida.
At the hearing, the court did not entertain any additional testimony or
evidence.
In opposing a motion to dismiss for lack of personal jurisdiction, a
plaintiff may use sworn statements, including depositions. See Teva
Pharm. Indus. v. Ruiz, 181 So. 3d 513, 520 (Fla. 2d DCA 2015) (explaining
that deposition transcripts submitted by plaintiff refuted the allegations in
defendant’s affidavit, thereby creating a conflict in the evidence, and thus
the trial court was required to hold a limited evidentiary hearing to resolve
the disputed issues of fact). As we have previously said, with regards to a
motion to dismiss for lack of personal jurisdiction where sworn proof is
presented by opposing sides:
In most instances, the evidence presented by each side can be
harmonized, and the trial court is in a position to make a
determination based upon undisputed facts. However, if the
evidence presented by the parties conflicts, the trial court
must then hold a limited evidentiary hearing to resolve the
jurisdictional issue. Id. at 503. “[A]n evidentiary hearing
under Venetian Salami resolves the factual disputes necessary
to determine jurisdiction pursuant to section 48.193 as well
as whether minimum contacts exist to satisfy due process
concerns.” Dev. Corp. of Palm Beach v. WBC Constr., L.L.C.,
925 So.2d 1156, 1160 (Fla. 4th DCA 2006).
Balboa v. Assante, 958 So. 2d 573, 575 (Fla. 4th DCA 2007) (alteration in
original).
We reverse and remand for the trial court to conduct a limited
evidentiary hearing on the issues of personal jurisdiction because the
affidavits and deposition, particularly those of the CEO, cannot be
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reconciled with respect to the extent of each guarantor’s contacts with the
debtor/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 that analysis, the trial court
should consider the evidence presented at the hearing to decide whether
each appellant’s “conduct and connection with the forum State [are] such
that [it] should reasonably anticipate being haled into court there.” Id.(citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980)).
We reverse without discussion as to the other issues argued in this
appeal.
Reversed and remanded.
WARNER and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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