Becker v. Johnson, 1D05-5909.

• Decision Date: 08 August 2006
• Docket Number: No. 1D05-5909.,1D05-5909.
• Citation: 937 So.2d 1128
• Parties: Christopher BECKER, Appellant, v. Angela JOHNSON, Appellee.
• Court: Florida District Court of Appeals

937 So.2d 1128

Christopher BECKER, Appellant, v. Angela JOHNSON, Appellee.

No. 1D05-5909.

District Court of Appeal of Florida, First District.

August 8, 2006.

Rehearing Denied September 27, 2006.

Christopher Becker, pro se, Appellant.

Bryan S. Gowdy of McGuire Woods LLP, Jacksonville; Kristi Beth Luna of Jacksonville Area Legal Aid, Jacksonville, for Appellee.

PER CURIAM.

Appellant, the husband of appellee, appeals the trial court's Final Judgment of Injunction for Protection Against Domestic Violence with Minor Children After Notice, which prohibited appellant from committing any acts of violence against appellee, from contacting the appellee, and from having custody, possession, or control of any firearms. The order also granted the appellee temporary custody of the parties' minor child. Appellant, a resident of Maryland, argues on appeal that there was an insufficient factual basis for the court to exercise its personal long-arm jurisdiction over appellant, and therefore, the entry of the order violated appellant's due process rights. Appellant's only alleged contacts with the state of Florida are voice and text messages left on appellee's cellular phone while she was present in Florida. Because we agree with appellant, that these contacts are insufficient to establish personal jurisdiction over a non-resident, we hold that the trial court erred in entering its final judgment of injunction against appellant and reverse and vacate this order.

I. BACKGROUND

Before July 19, 2005, both parties lived in Maryland. However, on that date, appellee left with the parties' minor child for Florida without appellant's knowledge. Soon after, on July 25, 2005, appellee filed her Petition for Protection Against Domestic Violence in Florida circuit court. The petition alleged the following:

The [Respondent] is my husband and the father of my daughter. . . . The [Respondent] and I were together off and on for ten years until we separated three years ago.

On July 19, 2005, [my daughter] and I left Maryland without the [Respondent's] knowledge because he threatened to kill me and spend the rest of his life in prison if I ever took [our daughter] from him. Since this date, the [Respondent] has been calling my cell phone and leaving messages and text messages (that I have saved). On July 25, 2005, the [Respondent] left messages on my cell phone stating that he was on his way looking for me; he stated that he will spend the rest of his life looking for me and that he will find me. On July 23, 2005, the [Respondent] left a text message on my cell phone stating, "Thank you. I just think that I am going crazy. I hear her . . . talking to me. I g[u]ess it's just cause [sic] I miss her!"

Three weeks ago, the [Respondent] busted out my car window with a crowbar as I was sitting inside; glass shattered everywhere, cutting my arm. I made a police report with Maryland State Highway Patrol.

In her petition, appellee requested, among other things, a temporary injunction for protection against domestic violence and temporary custody of the minor child.¹

Appellant was personally served with the petition in Maryland. On August 29, 2005, appellant filed a motion to quash service of process and dismiss based on lack of personal jurisdiction and subject matter jurisdiction. In the motion, appellant argued that appellee had alleged no facts upon which the trial court could exercise long-arm jurisdiction over appellant. On the same date, a hearing was held on the motion to dismiss and counsel for appellant made a special appearance to argue the motion. This motion was denied on the basis that the allegation made in the petition for injunction, that appellant had made telephone calls into the state of Florida, was "sufficient to enter a no contact Final Injunction for Protection Against Domestic Violence." However, at the hearing, the trial court noted that appellant should file a motion if he wanted the issue reheard or to address any other arguments or issues.

On September 16, 2005, appellant moved for rehearing. Attached to the motion was a sworn affidavit made by appellant which provided that appellee's cellular telephone has a Maryland number and that the messages appellant left on the phone were made before he knew appellee was residing in Florida.² After appellee was given a chance to respond³, the trial court denied appellant's motion for rehearing, stating that "[s]ufficient evidence was presented to provide a basis that Respondent had knowledge of Petitioner's presence in the State of Florida when he made statements that were sufficient to promote fear of harm from Respondent." The trial court found sufficient contacts existed in order to invoke the jurisdiction of the court. On the same day this order was filed, the trial court entered its final order of injunction for protection against domestic violence.

II. PERSONAL JURISDICTION

Section 741.30, Florida Statutes (2005), provides a cause of action for an injunction for protection against domestic violence. This statute requires that a final judgment for injunction for protection against domestic violence shall indicate on its face that, "[t]he court had jurisdiction over the parties and matter under the laws of Florida and that reasonable notice and opportunity to be heard was given to the person against whom the order is sought sufficient to protect that person's right to due process." § 741.30(6)(d)3, Fla. Stat. (2005) (emphasis added). Because appellant, a Maryland resident, was not served in Florida, personal jurisdiction must be established through section 48.193, Florida Statutes (2005), Florida's long-arm statute. However, to be subject to the jurisdiction of Florida courts pursuant to this statute, due process requires there also be sufficient "minimum contacts" between the forum state and the non-resident defending party "such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

In establishing minimum contacts, the United States Supreme Court has provided a purposeful availment requirement which "ensures that a defendant will not be haled into a jurisdiction solely as a result of `random,' `fortuitous,' or `attenuated' contacts." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). "`[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'" Id. at 474-75, 105 S.Ct. 2174 (citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). The "constitutional touchstone remains whether the defendant purposefully established `minimum contacts' in the forum State." Id. at 474, 105 S.Ct. 2174 (emphasis added).

Appellant's only alleged contacts with Florida were voice and text messages left on appellee's cellular telephone while she was present in Florida. Telephonic, electronic, or written communications to Florida from an outside state can establish personal jurisdiction without the need that the defending party have a physical presence in the state. See Wendt v. Horowitz, 822 So.2d 1252, 1257-58 (Fla.2002) (providing that physical presence is not necessary to establish minimum contacts). However, in this case, there is nothing in the petition filed by appellee alleging that appellant knew appellee was present in Florida at the time he left the messages on her cellular phone. Additionally, appellant stated the following in his affidavit:

The Petitioner's cellular telephone has a Maryland telephone number. Any messages left for her or sent to the Petitioner were sent by me before I was aware that the Petitioner was residing in Florida. I did not know until after the Petitioner had filed her petition that the Petitioner went to Florida after taking our child from Maryland. Since then I have not made any calls or sent any text messages to the Petitioner.

Although appellee argued below that appellant had reason to know she would seek refuge in Florida, appellee never filed an affidavit in response. See Venetian Salami, 554 So.2d at 502 (providing that in order for a respondent to raise the issue of minimum contacts, he must file an affidavit in support of his position, and then the burden is placed upon the petitioner to prove by affidavit the basis upon which jurisdiction may be...