74 F.3d 253 (11th Cir. 1996), 94-5215, Robinson v. Giarmarco & Bill, P.C.

• Citation: 74 F.3d 253
• Party Name: Marilyn Z. ROBINSON, individually as Co-Personal Representative of the Estate of Marvin L. Robinson, as Co-Trustee of the Marvin L. Robinson Amended and Re-stated Trust and as Co-Trustee of the Marvin L. Robinson Marital Trust, Plaintiff-Appellee, v. GIARMARCO & BILL, P.C., Julius H. Giarmarco, David Hertzberg, Purdy Donovan and Beal, CPAs and S. S
• Case Date: February 06, 1996
• Court: United States Courts of Appeals, U.S. Court of Appeals — Eleventh Circuit

Page 253

74 F.3d 253 (11th Cir. 1996)

Marilyn Z. ROBINSON, individually as Co-Personal

Representative of the Estate of Marvin L. Robinson, as

Co-Trustee of the Marvin L. Robinson Amended and Re-stated

Trust and as Co-Trustee of the Marvin L. Robinson Marital

Trust, Plaintiff-Appellee,

v.

GIARMARCO & BILL, P.C., Julius H. Giarmarco, David

Hertzberg, Purdy Donovan and Beal, CPAs and S. Sam

Tootalian, Defendants-Appellants.

No. 94-5215.

United States Court of Appeals, Eleventh Circuit

February 6, 1996

Page 254

Robert H. Schwartz, Gunther & Whitaker, P.A., Ft. Lauderdale, FL, for Giarmarco.

Frank R. Gramling, Fertig and Gramling, Ft. Lauderdale, FL, for Donovan and Tootalian.

William Jay Palmer, Raoul G. Cantero, Gared Gelles, Adorno & Zeder, Miami, FL, for Marilyn Z. Robinson.

Appeal from the United States District Court for the Southern District of Florida.

Page 255

Before COX, Circuit Judge, DYER, Senior Circuit Judge, and GOETTEL ^[*], Senior District Judge.

DYER, Senior Circuit Judge:

Attorney Julius Giarmarco and his firm ("Giarmarco"), Attorney David Hertzberg ("Hertzberg"), S. Sam Tootalian ("Tootalian"), a partner in Purdy, Donovan & Beal CPAs, challenge the district court's finding of personal jurisdiction and proper venue. We affirm on both issues.

I. BACKGROUND

1. Standard of Review

   This appeal involves the denial of a motion to dismiss for lack of personal jurisdiction or for a change of venue. See Fed.R.Civ.P. 12(b). The district court predicated its decision on the complaint, defendants' affidavits, and Tootalian's deposition testimony. Exercising its discretion, the court did not hold an evidentiary hearing. Delong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir.1988). The district court's refusal to change venue will only be disturbed for a clear abuse of discretion. Howell v. Tanner, 650 F.2d 610, 616 (5th Cir. Unit B 1981), cert. denied, 456 U.S. 918, 102 S.Ct. 1775, 72 L.Ed.2d 178 (1982). We review denial of a motion to dismiss for lack of personal jurisdiction de novo. Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 855 (11th Cir.1990). When no evidentiary hearing has been held, the standard by which to decide the issue of personal jurisdiction is clear:

   [T]he plaintiff must establish a prima facie case of personal jurisdiction over a nonresident defendant. A prima facie case is established if the plaintiff presents enough evidence to withstand a motion for directed verdict. The district court must accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the defendant's affidavits. Finally, where the plaintiff's complaint and the defendant's affidavits conflict, the district court must construe all reasonable inferences in favor of the plaintiff.

   Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990) (citations omitted).

   After reviewing the documents before the district court, we find no actual conflict in comparing the allegations on the face of the complaint with the defendants' affidavits and Tootalian's testimony. The defendants have alleged facts that either harmonize with or are not directly addressed in the complaint. To the extent that conflicting inferences can be drawn from the jurisdictional allegations asserted by both sides, we construe all reasonable inferences for the plaintiff in detailing the following relevant facts.

2. Facts

   This case arises from estate planning services which the defendants rendered to Marvin Robinson ("Decedent"). The defendants reside and are licensed to practice only in Michigan. The Decedent resided in Michigan until 1980 when he and his wife moved to Florida.

   Tootalian began providing accounting services to the Decedent in 1957 but it was not until 1980, after the Decedent had relocated to Florida, that Tootalian became involved with the Decedent's estate planning. He provided financial data and attended meetings with the Decedent's original tax attorney, who is not a party to this litigation. In 1984, the Decedent discharged his tax attorney and Tootalian contacted Hertzberg to assume representation of the Decedent in his estate planning matters.

   In 1987 the Decedent requested that Hertzberg prepare a will and amend an existing trust agreement. By their terms, the will and the amended trust agreement were governed by and administered under Florida law. The will identified the Decedent as a Florida resident. Hertzberg delivered the documents to the Decedent in Florida, where they were executed. ¹ While Hertzberg represented

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   the Decedent, Tootalian's participation in the estate planning increased. He met with the Decedent and Hertzberg and had many telephone conversations with the Decedent to discuss the estate.

   Hertzberg announced his retirement from practice in 1989, at which time Tootalian introduced the Decedent to Giarmarco. Giarmarco represented the Decedent from at least January 1990 until November 1990, during which time he prepared a codicil to the will, which again identified the Decedent as a Florida resident and stated that Florida law would govern. He also prepared two amendments to the trust agreement. Giarmarco mailed these documents to the Decedent in Florida, where they were executed.

   Several facts alleged in the complaint are uncontroverted. First, in September 1988 the Decedent employed Tootalian to review his will and trust documents "to project the testamentary disposition thereunder." In that same month, the plaintiff alleges, Tootalian "prepared a memorandum to the Decedent, stating that he had reviewed the Trust and projected the distributions to Plaintiff and the Marital Trust as if neither were to bear any portion of the estate taxes." The plaintiff further asserts that Tootalian prepared two memorandums in November 1989. One was addressed to the Decedent advising him that the "Marital Trust and assets passing to Plaintiff would be free of estate taxes." The second memorandum, addressed to Giarmarco, advised Giarmarco that the Decedent wanted him to review certain matters raised in the memorandum and to make certain changes to the trust documents. Finally, the plaintiff alleges that Tootalian's engagement continued until at least September 12, 1990, when he prepared a memorandum advising the Decedent that "his current trust documents essentially provided for the distribution of his net assets to or for the benefit of Marilyn A. Robinson free of estate taxes."

   Marvin Robinson died in 1992. His will was admitted to probate and the trust is administered in Broward County, Florida. Contrary to the Decedent's intentions, the trust and estate incurred a tax liability in excess of $850,000, which prompted the plaintiff to file suit for negligence and breach of contract. The defendants moved to dismiss for lack of personal jurisdiction or, alternatively, for a change of venue to Michigan. The district court determined that the facts alleged in the complaint supported jurisdiction pursuant to Florida Statutes Sec. 48.193(1)(b) (1989) and the Due Process Clause of the Fourteenth Amendment. The court further found venue proper pursuant to 28 U.S.C. Sec. 1391, and that a transfer would merely shift inconvenience from the defendants to the plaintiff. Defendants appeal that judgment.

   II. PERSONAL JURISDICTION

   The analytical steps necessary to decide whether the district court has personal jurisdiction over the defendants are succinctly stated in Madara:

   The determination of personal jurisdiction over a nonresident defendant requires a two-part analysis. First, we consider the jurisdictional question under the state long-arm statute. If there is a basis for the assertion of personal jurisdiction under the state statute, we next determine whether sufficient minimum contacts exist to satisfy the Due Process Clause of the Fourteenth Amendment so that "maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Only if both prongs of the analysis are satisfied may a federal or state court exercise personal jurisdiction over a nonresident defendant.

   916 F.2d at 1514 (citations omitted) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)).

1. Long-Arm Statute

   The Florida Long-Arm Statute permits a federal or state court to exercise

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   personal jurisdiction over a nonresident defendant in certain enumerated situations. In pertinent part 48.193 provides:

   (1) 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 ... to the jurisdiction of the court of this state for any cause of action arising from the doing of any of the following acts:

   ....

   (b) Committing a tortious act within this state.

   The reach of the statute is a question of Florida law. Thus, "federal courts are required to construe it as would the Florida Supreme Court." Madara, 916 F.2d at 1514.

   Defendants argue that Doe v. Thompson, 620 So.2d 1004 (Fla.1993), and its progeny, demonstrate that an allegedly negligent act committed outside of the state resulting in injury in Florida is insufficient to confer personal jurisdiction over a nonresident defendant. The cases cited by defendants do not indicate such a trend, ² nor is that the holding of Doe. Silver, 648 So.2d at 242 ("Doe only addressed the 'corporate shield' doctrine: section 48.193(1)(b) does not subject an employee to personal jurisdiction who has performed a negligent act outside of the state solely in his corporate capacity even if the injury occurs in Florida."); Allerton, 635 So.2d at 39 (In Doe "the supreme court agreed that, under the corporate shield doctrine, acts...