Third District Court of Appeal
State of Florida
Opinion filed March 16, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-927
Lower Tribunal No. 19-19206
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Pino Bacinello,
Appellant,
vs.
Admiral Marine Surveyors LLC, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, David C. Miller, Judge.
Hicks, Porter, Ebenfeld & Stein, P.A., and Mark Hicks, Dinah S. Stein
and Sharon R. Vosseller, for appellant.
Arnaldo Velez, P.A., and Arnaldo Velez, for appellees.
Before EMAS, GORDO and BOKOR, JJ.
GORDO, J.
Pino Bacinello appeals an order denying his motion to dismiss a
lawsuit filed by Admiral Marine Surveyors, LLC, and Dieselmax (“Admiral”)
for lack of personal jurisdiction. We have jurisdiction. Fla. R. App. P.
9.130(a)(3)(C)(i). Because the trial court erred in denying the motion to
dismiss where Bacinello’s unrebutted sworn proof demonstrated he was
acting in his capacity as president of Pacific when he purchased the yacht
and erred in failing to hold a limited evidentiary hearing to resolve the issues
of fact regarding whether Bacinello, as an individual, submitted himself to the
jurisdiction of Florida by committing a tortious act within the state, we
reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Pino Bacinello, the current president and sole employee of Pacific
Mergers & Acquisitions Inc. and a Canadian citizen and resident, purchased
a yacht in Ft. Lauderdale, Florida. Prior to the purchase, Bacinello hired
Admiral to perform a sea trial and survey the yacht. After the purchase was
completed, Bacinello allegedly discovered deficiencies with the yacht.
Thereafter, Pacific sued Admiral and its representatives, Pedro Bregolat and
Ricky Cheng, for negligence and negligent misrepresentation. Admiral
counter-sued Pacific and filed third-party complaints against Bacinello
personally, alleging he failed to preserve critical evidence and was negligent
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per se, based on his alleged telephonic recordings between the parties.
Admiral asserted that the trial court could exercise specific personal
jurisdiction over Bacinello, as an individual, pursuant to Florida’s long arm
jurisdiction statute, section 48.193, Florida Statutes, because Bacinello
personally engaged in a business venture in the state when he purchased
the yacht in Florida, and he committed a tortious act within the state by
surreptitiously recording telephonic communications.
Bacinello filed motions to dismiss the third-party complaints on the
grounds that he was not subject to personal jurisdiction in Florida because:
(1) he purchased the yacht in his capacity as president of Pacific, not as an
individual and (2) he did not commit a tortious act in the state of Florida as
the recording of the telephonic communications occurred in Canada, where
it is legal for one party to record a conversation without the other party’s
permission.
Bacinello attached an affidavit specifically alleging that he was a
Canadian citizen, did not conduct any business activities on his own behalf
in Florida at any time relevant to the lawsuit and did not own or maintain a
telephone listing in Florida. As to the telephonic recordings, Bacinello
asserted at his deposition that all telephonic communications between the
parties were initiated or received at Pacific’s offices and that all calls included
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an automated message indicating that any calls may be recorded for training
and verification purposes. Admiral filed a response and attached portions of
Bacinello’s deposition transcript and the affidavits of Bregolat and Cheng.
Their affidavits attested that they were contacted by Bacinello to conduct the
marine survey of a yacht and communicated with him regarding that survey.
Bregolat and Cheng’s affidavits also averred they were not aware their
telephone conversations with Bacinello were recorded and they had never
consented to any recordings. The trial court held a non-evidentiary hearing
on Bacinello’s motions to dismiss and ultimately denied them. This appeal
followed.
LEGAL ANALYSIS
“The determination of whether the trial court properly ruled on a motion
to dismiss for lack of personal jurisdiction is a question of law subject to de
novo review.” Labbee v. Harrington,
913 So. 2d 679, 681 (Fla. 3d DCA
2005). “The Florida Supreme Court has described the two-step process
required to be applied by a trial court in its determination of personal
jurisdiction over a particular defendant.” Rollet v. de Bizemont,
159 So. 3d
351, 354–55 (Fla. 3d DCA 2015). “First, it must be determined that the
complaint alleges sufficient jurisdictional facts to bring the action within the
ambit of the statute; and if it does, the next inquiry is whether sufficient
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‘minimum contacts’ are demonstrated to satisfy due process requirements.”
Id.; see Venetian Salami, 554 So. 2d at 502. In Florida, “both parts must be
satisfied for a court to exercise personal jurisdiction over a non-resident
defendant.” Rollet, 159 So. 3d at 356.
The procedure for determining whether there are sufficient
jurisdictional facts to bring the action within the ambit of the long arm statute
is well settled in Florida. Pursuant to Venetian Salami, a plaintiff bears the
initial burden of pleading sufficient jurisdictional facts to fall within the long
arm statute. Venetian Salami, 554 So. 2d at 502. If the allegations in the
complaint are sufficient, the burden shifts and “[a] defendant wishing to
contest jurisdiction must file a legally sufficient affidavit in support of his
position.” Tobacco Merchs. Ass’n of U.S. v. Broin,
657 So. 2d 939, 941 (Fla.
3d DCA 1995). “The burden is then placed upon the plaintiff to prove by
affidavit the basis upon which jurisdiction may be obtained.” Venetian
Salami, 554 So. 2d at 502. “If no such sworn proof is forthcoming from the
plaintiff as to the basis for jurisdiction, the trial court must grant the
defendant’s motion to dismiss.” Broin,
657 So. 2d at 941. “If the plaintiff files
a counter-affidavit raising conflicting facts, the trial court should then hold a
limited evidentiary hearing to resolve any disputed facts relating to
jurisdiction.”
Id.
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I. Personal Jurisdiction for Conducting a Business Venture in Florida
Admiral alleges that Bacinello submitted himself to the jurisdiction of
Florida because he personally conducted a business venture in the state by
purchasing a yacht here. Section 48.193(1)(a), provides that a person,
whether or not a citizen or a resident of this state, submits himself to the
personal jurisdiction of Florida by “operating, conducting, engaging in, or
carrying on a business or business venture in this state.” We find that
Bacinello’s sworn affidavit sufficiently avers that he was acting solely in his
capacity as president of Pacific when he purchased the yacht and did not
conduct any business ventures on his own behalf in Florida at any time
relevant to the lawsuit. The burden to submit affidavits rebutting that fact,
therefore, shifts to Admiral. Bregolat and Cheng’s affidavits merely aver that
Bacinello hired them to conduct a marine survey of the yacht. We find
Bregolat and Cheng’s affidavits are insufficient to rebut Bacinello’s claim he
was acting in his capacity as president when he obtained the services from
Admiral. As such, the trial court erred in failing to grant the motion to dismiss
as to its ability to obtain personal jurisdiction over Bacinello for his purchase
of the yacht.
II. Personal Jurisdiction for Committing a Tortious Act in Florida
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Admiral next alleges that Bacinello is subject to the jurisdiction of
Florida because he personally committed a tortious act within the state by
surreptitiously recording telephonic communications. Section 48.193(1)(a),
provides that a person, whether or not a citizen or a resident of this state,
submits himself to the personal jurisdiction of Florida by “committing a
tortious act within this state.” “The Florida Security of Communications Act
makes it a crime to intentionally intercept a person’s electronic
communications, including a telephone call, without prior consent of all
parties to the communication, and permits private cause of action . . . for an
interception in violation of the Act.” France v. France,
90 So. 3d 860, 862
(Fla. 5th DCA 2012). It is undisputed that telephonic communications
between Bacinello and Admiral’s agents were recorded while Bacinello was
working at Pacific. We, however, find that the affidavits and record before
the trial court created an issue of fact as to: (1) whether the act of recording
the communication was done by Bacinello, as an individual, or by Pacific, as
a company; (2) where the calls emanated from; (3) where the calls were
received; (4) who initiated the calls; and (5) whether the parties consented
to the recordings. We therefore reverse and remand this issue for the trial
court to hold a limited evidentiary hearing under Venetian Salami to resolve
these disputed issues of fact and determine whether sufficient evidence
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exists that Bacinello submitted himself to the jurisdiction of Florida by
committing a tortious act within the state. Venetian Salami, 554 So. 2d at
502.
Reversed and remanded.
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