Kingland Estates, Ltd. v. Davis

• Decision Date: 10 June 2015
• Docket Number: No. 3D14–2975.,3D14–2975.
• Parties: KINGLAND ESTATES, LTD.; Classic Investments, Ltd.; and Richard Cox, Appellants, v. Kathleen DAVIS, Marjorie Ilma Knox, and the Marjorie Ilma Knox Revocable Trust, Appellees.
• Court: Florida District Court of Appeals

170 So.3d 825

KINGLAND ESTATES, LTD.; Classic Investments, Ltd.; and Richard Cox, Appellants

v.Kathleen DAVIS, Marjorie Ilma Knox, and the Marjorie Ilma Knox Revocable Trust, Appellees.

No. 3D14–2975.

District Court of Appeal of Florida, Third District.

June 10, 2015.

Rehearing Denied July 29, 2015.

Holland & Knight, J. Raul Cosio, Christopher N. Bellows and Rebecca M. Plasencia, Miami, for appellants.

Nicholson & Eastin, LLP and Robert N. Nicholson, Fort Lauderdale; Broad and Cassel, Mark F. Raymond, Patricia M. Baloyra, Miami, and Beverly Pohl, for appellees.

Before SHEPHERD, C.J., and WELLS and SALTER, JJ.

Opinion

WELLS, J.

Kingland Estates Limited (“KEL”), Classic Investments Limited (KEL's majority shareholder), and Richard Cox (sole shareholder and managing director of Classic and chairman and managing director of KEL) (collectively “the Barbados defendants”)¹ , appeal from an order denying their motion to dismiss for lack of personal jurisdiction. We reverse the order on appeal and remand with instructions to dismiss the Barbados defendants from the instant action.

Plaintiff Marjorie Ilma Knox, around whom this action centers, is a citizen of Barbados currently living in Miami.² This action has its genesis in the sale of shares in a family owned company, KEL, which was formed in 1958 to hold title to substantial acreage in Barbados. Beginning in 1992, members of Ms. Knox's family began to acquire other family members' shares of stock in KEL and ultimately in 2005, Classic purchased all but Ms. Knox's remaining shares in KEL, giving Classic control of the company.

Since that time, Ms. Knox has filed a number of actions in Barbados and at least one in Canada to secure a ruling that her remaining shares are worth more than evidenced by KEL's books and records. In 2007, Ms. Knox created a revocable trust funded by her shares of KEL stock. Her daughter, Kathleen I. Davis, as trustee and as Ms. Knox's attorney in fact, has now joined with Ms. Knox in these efforts, filing an action in the probate division of the circuit court. The instant action takes a new tack, this time claiming that the Barbados defendants and two of Ms. Knox's relatives, Iain Deane and Tess Rohmann—both of whom sold their shares in KEL to Classic in 2007—have engaged in a criminal enterprise to force her to divest her interest in KEL for less than its full value. According to Ms. Knox and her daughter:

Appellants participated in ‘a coordinated and systematic scheme ... to intimidate, threaten, defame, and extort Mrs. Marjorie Knox and the other Plaintiffs ...’ with the objective ‘to force Mrs. Knox and/or the ... Trust ... to sell highly valuable real estate holdings in ... [KEL] for far below market value....’ ‘[This] coordinated scheme evolved in or around the year 2007 from a scheme of obfuscation, misinformation, and false accounting, to become a racketeering enterprise that began employing threats, harassment, and intimidation directed into the United States, all designed to forcibly divest Mrs. Knox and/or the Knox Trust of its interest in KEL....’

The complaint asserts four specific instances in which members of this enterprise purportedly acted in Florida in furtherance of their scheme:

• posting of anonymous threats and defamatory statements on a blog created and controlled by Kathleen here in Miami, Florida;

• delivering “false financial” records to Ms. Knox in Miami, Florida;

• giving perjured testimony in connection with “a civil court proceeding in Miami”; and

• tampering with “potential witnesses in Miami.”

The complaint asserts five causes of action. Count I seeks relief under section 895.03 of the Florida Statutes (Florida's RICO statute); Count II seeks relief under section 895.03(4) (for RICO conspiracy); Count III claims intentional infliction of severe emotional distress; Count IV claims defamation; and Count V claims a conspiracy. Jurisdiction over the Barbados defendants is invoked under section 48.193, Florida's long arm statute on a claim that based on the aforementioned acts these defendants committed these crimes and torts in the state of Florida.

The Barbados defendants moved to dismiss the action against them and supported that motion with the affidavit of Richard Cox. The court below denied the motion to dismiss concluding that the complaint satisfied the initial pleading requirements of section 48.193 of the Florida Statutes and that the Barbados defendants' affidavit did not directly contest the factual allegations in the complaint with respect to long arm jurisdiction or minimum contacts. We review this matter de novo, and reverse. See Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002) (“This Court must conduct a de novo review of a trial court's ruling on a motion to dismiss for lack of personal jurisdiction.”); accord Edwards v. Airline Support Group, Inc., 138 So.3d 1209, 1211 (Fla. 4th DCA 2014) ; Swanky Apps, LLC v. Roony Invest & Fin., S.A., 126 So.3d 336, 338 (Fla. 3d DCA 2013) ; Extendicare, Inc. v. Estate of McGillen, 957 So.2d 58, 63 (Fla. 5th DCA 2007) ; Dev. Corp. of Palm Beach v. WBC Constr., L.L.C., 925 So.2d 1156, 1160 (Fla. 4th DCA 2006).

By each count of their complaint, Ms. Knox and her daughter sought to secure jurisdiction over the Barbados defendants under section 48.193, which in pertinent part provides:

A 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 or herself ... to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts:

....

2. Committing a tortious act within this state.

§ 48.193(1)(a) 2., Fla. Stat. (2014).

In Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989), the Florida Supreme Court articulated a two-step analysis to determine whether personal jurisdiction exists over a nonresident defendant under section 48.193 of the Florida Statutes. “A court first must determine whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of our long-arm statute. A court then must determine whether sufficient minimum contacts exist between our forum state and the defendant to satisfy the Fourteenth Amendment's due process requirements—in short, whether a nonresident defendant ‘should reasonably anticipate being haled into court’ in Florida.” Acquadro v. Bergeron, 851 So.2d 665, 669 n. 9 (Fla.2003) (quoting Doe v. Thompson, 620 So.2d 1004, 1005 (Fla.1993) ); see Rollet v. de Bizemont, 159 So.3d 351, 356 (Fla. 3d DCA 2015) (“In Florida, ‘both parts [of the personal jurisdicition test] must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant.’ Hampton Island Pres., LLC v. Club & Cmty. Corp., 998 So.2d 665, 667 (Fla. 4th DCA 2009) (quoting Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002) ).”). With regard to the Barbados defendants, neither prong of the Venetian Salami analysis was met.

Here, all five counts of the complaint are predicated on the same jurisdictional facts: that some unidentified and unknown individuals made threatening, defamatory statements on a blog maintained in Miami by Ms. Knox's daughter; that the defendants, which would include the Barbados defendants, sent false financial statements to Ms. Knox in Florida; and that the defendants, which would include the Barbados defendants, committed perjury in an action pending in Miami when Tess Rohmann “lied under oath regarding numerous issues, including the price per share at which she had sold her KEL shares.”

First and most obviously, Count III claiming intentional infliction of emotional distress³ and Count IV claiming defamation⁴ fail to allege any jurisdictional facts that would bring this action within the ambit of Florida's long-arm jurisdiction statute. See Thorpe v. Gelbwaks, 953 So.2d 606, 609 (Fla. 5th DCA 2007) (“First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida's long-arm jurisdiction statute.”); Gerber Trade Fin., Inc. v. Bayou Dock Seafood Co., 917 So.2d 964, 966 (Fla. 3d DCA 2005) (same). As the Florida Supreme Court has explained, a defendant, like the Barbados defendants, need not be physically present in Florida to commit a tortious act here but may commit a tortious act in Florida for purposes of section 48.193(1)(a) 2,⁵ through “telephonic, electronic, or written communications into Florida.” Acquadro, 851 So.2d at 670 ; see Wendt, 822 So.2d at 1253 ; Swanky Apps, LLC, 126 So.3d at 339. However, in this case, the complaint and the affidavits attached to and incorporated into it, concede that after years of effort, plaintiffs have been unable to identify the defendants as the individuals who posted the offending defamatory statements that form the basis for the claims asserted in Counts III and IV. Moreover, the affidavit submitted by Cox on behalf of the Barbados defendants affirmatively states that they were not involved in the conduct alleged.⁶ This evidence was wholly unrefuted. Thus, as to Counts III and IV, the established jurisdictional facts are insufficient to bring this action within the ambit of the long-arm statute.

The same result obtains for the remaining three counts of the complaint—Count I claiming violation of section 895.03(1), (2), and (3) of the Florida Statutes —Florida's RICO act⁷ ; Count II claiming violation of section 895.03(4) of the Florida Statutes —RICO conspiracy provision⁸ ; and Count IV claiming the existence of a conspiracy.^{9 , 10} These three counts rely on the same factual predicate claiming that the Barbados defendants engaged in a conspiracy and a pattern of racketeering by:

a. making defamatory and threatening posts on the daughter's blog in violation of sections 836.05, 836.10, 895.02 of the Florida Statutes ;

b. making false entries in the books of a corporation (KEL) in violation of sections 817.034, 817.15, and 895.02(2

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