Acquadro v. Bergeron

• Decision Date: 10 July 2003
• Docket Number: No. SC01-896.,SC01-896.
• Citation: 851 So.2d 665
• Parties: Martin ACQUADRO, M.D., et al., Petitioners, v. Janet BERGERON, et al., Respondents.
• Court: Florida Supreme Court

851 So.2d 665

Martin ACQUADRO, M.D., et al., Petitioners, v. Janet BERGERON, et al., Respondents.

No. SC01-896.

Supreme Court of Florida.

July 10, 2003.

Donna M. Greenspan of Edwards & Angell, LLP, West Palm Beach, FL, for Petitioners.

Robert Rivas of the Rivas Law Firm, Tallahassee, FL, for Respondents.

QUINCE, J.

We have for review Acquadro v. Bergeron, 778 So.2d 1034 (Fla. 4th DCA 2001), a decision of the Fourth District Court of Appeal, which expressly and directly conflicts with the decisions of the Fifth District Court of Appeal in Horowitz v. Laske, 751 So.2d 82 (Fla. 5th DCA 1999), quashed sub nom. Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002)

;¹

Thompson v. Doe, 596 So.2d 1178 (Fla. 5th DCA 1992),

approved, 620 So.2d 1004 (Fla.1993); Intercontinental Corp. v. Orlando Regional Medical Center, Inc., 586 So.2d 1191 (Fla. 5th DCA 1991); McLean Financial Corp. v. Winslow Loudermilk Corp., 509 So.2d 1373 (Fla. 5th DCA 1987), and the Second District Court of Appeal in Koch v. Kimball, 710 So.2d 5 (Fla. 2d DCA 1998); Phillips v. Orange Co., 522 So.2d 64 (Fla. 2d DCA 1988); and Texas Guaranteed Student Loan Corp. v. Ward, 696 So.2d 930 (Fla. 2d DCA 1997). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

PROCEDURAL AND FACTUAL BACKGROUND

On September 17, 1997, respondent Janet Bergeron (Bergeron) was arrested for battery on Edward Acquadro (Eddie), the uncle of petitioner Dr. Martin Acquadro and the brother-in-law of petitioner Rose Acquadro. Both Dr. Acquadro and Rose Acquadro are residents of Massachusetts. At the time of Bergeron's arrest, Eddie was 72 years old and Bergeron was 38 years old. Before the arrest, Eddie and Bergeron resided together in the same house in Boca Raton, Florida.²

Bergeron and Eddie went to Bonnie Towing & Recovery, Inc. (Bonnie Towing)³ to recover their car, which had been towed. When a Bonnie Towing employee informed Bergeron that the tow bill was $100, Bergeron became hostile. She began to yell at Eddie, and forcibly picked him up and carried him out of the office through the front door. Eddie hit his head on the door on the way out. After Bergeron carried Eddie outside, she hit Eddie in the arm with a car battery. Bergeron was taken into custody after Bonnie Towing employees called the police to the scene.

The police found probable cause to arrest Bergeron for battery of a person 65 years of age or older. However, the State ultimately entered a nolle prosse because the mental evaluations of Bergeron concluded that the "criteria of legal insanity" were present; therefore, the State could not meet its burden of proving Bergeron's intent beyond a reasonable doubt.

Dr. Acquadro and his parents, Rose Acquadro and the since-deceased Andrew Acquadro, learned of Bergeron's arrest on the day she was arrested.⁴ Andrew and Rose Acquadro arranged for Eddie to fly to Massachusetts to obtain medical care and treatment. After recuperating, Eddie moved to an assisted nursing center. Eddie eventually died on August 27, 1998.

Bergeron spent thirteen days in jail and was then released. Bergeron claims that while she was in jail, the residence was ransacked and her belongings were stolen. Moreover, Bergeron contends that upon returning to the residence, she discovered that an employee of Bonnie Towing, James R. Bonnie (Bonnie), had been given a "power of attorney" to dispose of all of the property in the residence. Bonnie allegedly explained that the Acquadros had paid him for "liquidating all of Janet's possessions, Janet and Eddie's possession[s]." Additionally, Bergeron contends that Rose Acquadro personally supervised Bonnie as he disposed of the property in the residence shared by Bergeron and Eddie, and that Rose Acquadro presided over the discarding or selling of the property from the house in Palm Beach County.

On September 18, 1997, a circuit judge entered an order of no contact against Bergeron. The order provided that Bergeron was to have no contact, direct or indirect, in or out of custody, with Eddie. On October 17, 1997, at Bergeron's arraignment, the circuit court entered an order directing Bergeron to obtain a new residence. Despite these orders, on October 18, 1997, the police advised Dr. Acquadro that Bergeron's father, Robert Bergeron, was at Eddie's house, and that Robert Bergeron told the police that Janet Bergeron was still coming to the house during the day.

On October 24, 1997, Dr. Acquadro commenced a civil action against Bergeron and her father, alleging causes of action for unlawful entry and detention, trespass, and declaratory relief.⁵ Because the counts for unlawful entry and detention and declaratory judgment were rendered moot when Eddie regained possession of the house, these claims were dismissed on January 6, 1998. Dr. Acquadro dismissed the case in its entirety on August 25, 1998.⁶

On February 23, 1999, Bergeron filed a six-count complaint against Dr. Acquadro, Rose Acquadro, Bonnie Towing, and several Bonnie employees, including James Bonnie. The complaint raised claims of false arrest, false imprisonment, malicious prosecution, and intentional infliction of emotional distress against all of the defendants. Bergeron also brought a defamation claim against Rose Acquadro based upon a telephone call from Massachusetts to Bergeron, her sister Jacqueline Branz, and James Bonnie in Florida in which Acquadro stated that Bergeron "had AIDS."⁷ Finally, Bergeron brought a civil theft claim against James Bonnie and the Acquadros for allegedly disposing of her property located in the house she shared with Eddie.

The Acquadros filed a motion to dismiss for lack of jurisdiction and for failure to state a cause of action, and filed affidavits in support of the motion to dismiss for lack of jurisdiction. In the affidavits, Rose Acquadro denied making a defamatory statement, but did not deny that she made the statement during a telephone conversation with individuals in Florida that Bergeron "had AIDS." Bergeron did not file any affidavits in opposition to the Acquadros' motion to dismiss, but instead presented the live testimony of both herself and her sister at a hearing on the issue of personal jurisdiction. At the hearing, both Bergeron and her sister, Jacqueline Branz, testified that Rose Acquadro and James Bonnie called Eddie's residence the day that Bergeron was released from jail. Branz testified that Rose told her that she wanted them out of her house. Branz also testified that Rose told her that Bergeron "had AIDS."⁸ Additionally, the trial court allowed the parties to argue both personal jurisdiction and whether Bergeron's complaint stated cognizable causes of action. The trial court ultimately denied the Acquadro's motion to dismiss.

On appeal to the Fourth District, the Acquadros contended that Bergeron's failure to refute their affidavits denying the tortious conduct required the trial court to grant their motion to dismiss for lack of personal jurisdiction. See Acquadro v. Bergeron, 778 So.2d 1034, 1035 (Fla. 4th DCA 2001)

. The Fourth District rejected this argument, explaining that

[t]he purpose of affidavits in these circumstances is "to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts." Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989).[⁹] Where the affidavits are in conflict, the trial court holds a "limited evidentiary hearing in order to determine the jurisdiction issue." Id. at 503.

In the present case the trial court did hold an evidentiary hearing, but the purpose was not, as the court correctly recognized, to resolve whether the defendants had committed the torts. That would have required a full-blown trial, not the limited evidentiary hearing contemplated by Venetian Salami.

Because the defendants' affidavits did not deny that the telephone communication, which was the basis of personal jurisdiction, had occurred, the trial court correctly denied the motion to dismiss. Carida v. Holy Cross Hosp., Inc., 424 So.2d 849 (Fla. 4th DCA 1982) (committing defamation by telephone call into Florida constituted the commission of a tort in Florida and subjected defendant to personal jurisdiction); Silver v. Levinson, 648 So.2d 240 (Fla. 4th DCA 1994) (same).

Id. Therefore, the Fourth District affirmed the trial court's denial of the Acquadros' motion to dismiss. This appeal followed.

ANALYSIS

I.

The conflict issue in this case is whether the Fourth District erred in concluding that personal jurisdiction was proper over two out-of-state residents based on section 48.193(1)(b), Florida Statutes (1999).¹⁰ Recently, in Wendt, we addressed a substantially similar issue, and concluded:

[I]n order to "commit a tortious act" in Florida, a defendant's physical presence is not required. Second, "committing a tortious act" in Florida under section 48.193(1)(b) can occur through the nonresident defendant's telephonic, electronic, or written communications into Florida. However, the cause of action must arise from the communications. This predicate finding is necessary because of the connexity requirement contained in section 48.193(1). See § 48.193(1) (stating that "[a]ny person... who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself ... to the jurisdiction of the courts of this state for any cause of action arising from the doing of the following acts").

822 So.2d at 1260 (footnote omitted). Therefore, on the basis of Wendt, we approve the Fourth District's decision to the extent it concluded that allegedly defamatory phone calls made into Florida by a nonresident could be sufficient to establish personal jurisdiction. Accordingly, we find that Rose Acquadro's telephone conversation in which she stated that Bergeron "has AIDS" is sufficient to establish personal jurisdiction.

However, petitioners also contend that even if the Court concludes that jurisdiction is proper with regard to Rose Acquadro,...