Law Offices of Sybil Shainwald v. Barro

• Decision Date: 26 April 2002
• Docket Number: No. 5D01-2724.,5D01-2724.
• Citation: 817 So.2d 873
• Parties: LAW OFFICES OF SYBIL SHAINWALD, et al., Appellants, v. Melinda BARRO, Weitz & Luxenberg, etc., et al., Appellees.
• Court: Florida District Court of Appeals

817 So.2d 873

LAW OFFICES OF SYBIL SHAINWALD, et al., Appellants, v. Melinda BARRO, Weitz & Luxenberg, etc., et al., Appellees.

No. 5D01-2724.

District Court of Appeal of Florida, Fifth District.

April 26, 2002.

Dennis R. O'Connor and Warren B. Kwavnick of Cooney, Mattson, Lance, Blackburn, Richards & O'Connor, P.A., Ft. Lauderdale, for Appellants.

Sharon J. Calix of Hall, David & Joseph, P.A., Miami, for Appellee Melinda Barro.

No Appearance for other Appellees.

SAWAYA, J.

Sybil Shainwald, a New York attorney, and the Law Offices of Sybil Shainwald, a professional corporation (collectively Shainwald), appeal the lower court's non-final order denying Shainwald's motion to dismiss for lack of personal jurisdiction. This court has jurisdiction pursuant to rule 9.130(a)(3)(C)(i), Florida Rules of Appellate Procedure. We reverse and remand for an evidentiary hearing.

The motion to dismiss was filed in a malpractice action initiated by Melinda Barro (Barro), a Florida resident, against Shainwald and numerous other attorneys. The genesis of the malpractice action was a products liability suit in which Shainwald and the other attorneys allegedly represented Barro in her attempt to recover damages against Bristol-Myers Squibb Co. (Bristol-Myers) and Medical Engineering Corp. (Medical) for injuries caused to Barro by her breast implants. Shainwald initially filed the products liability suit in New York. However, it was subsequently transferred to the U.S. District Court for the Middle District of Florida. Following the transfer of the case to Florida, Shainwald maintains that her representation of Barro ceased. Eventually, Bristol-Myers was dismissed from the action and a $757,569.64 judgment was entered against Medical.

Subsequent to entry of the judgment in the products liability action, Barro filed her amended malpractice complaint wherein she alleges that her attorneys, including Shainwald, were negligent and breached their fiduciary duty in handling the litigation. Shainwald filed a motion to dismiss for lack of personal jurisdiction and supporting affidavits, asserting that she has never engaged in business in Florida and therefore does not have sufficient minimum contacts to be subjected to Florida's jurisdiction. After a brief non-evidentiary hearing, the trial court denied Shainwald's motion. The issue we must resolve is whether the trial court erred in denying Shainwald's motion without first conducting an evidentiary hearing regarding the jurisdictional issue.

Two inquiries must be made when deciding whether personal jurisdiction exists over a nonresident. First, the complaint must allege sufficient facts to bring the action within the ambit of one of the various jurisdictional criteria contained in Florida's long-arm statute found in section 48.193, Florida Statutes (2000). See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989)

; Horowitz v. Laske, 751 So.2d 82 (Fla. 5th DCA 1999); Quality Christmas Trees Co., Inc. v. Florico Foliage, Inc., 689 So.2d 1222 (Fla. 5th DCA 1997); Pluess-Staufer Indus., Inc. v. Rollason Eng'g & Mfg., Inc., 635 So.2d 1070 (Fla. 5th DCA 1994). Second, if the complaint properly alleges long-arm jurisdiction, sufficient minimum contacts must be demonstrated that satisfy the requirements of federal due process. Venetian Salami; Gloveland Shipping, Ltd. v. Sveriges Angfartygs Assurans Forening, 791 So.2d 4, 11 (Fla. 1st DCA 2000) (citing International Shoe Co. v. State of Wash., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

In determining whether the complaint contains sufficient allegations relating to the criteria contained in section 48.193, the courts permit the plaintiff to initially plead the pertinent language of the statute as the basis for jurisdiction without the necessity of specifically pleading all of the supporting facts. See Venetian Salami. Shainwald does not contest that Barro sufficiently alleges in her complaint the statutory criteria contained in section 48.193(1)(a) ("[o]perating, conducting, engaging in, or carrying on a business or business venture in this state.") and section 48.193(1)(b) ("[c]ommitting a tortious act within this state."). However, Shainwald, by affidavits, does challenge those allegations.

Regarding the second inquiry, the Florida Supreme Court, eschewing a "mechanistic approach" to personal jurisdiction, adopted the "modern jurisprudential approach" utilized by the federal courts. That approach requires the courts to determine whether the acts of the nonresident defendant give rise to sufficient "minimum contacts" with the forum state such that maintaining a suit there "does not offend `traditional notions of fair play and substantial justice.'" Georgia Insurers Insolvency Pool v. Brewer, 602 So.2d 1264, 1268 (Fla.1992) (quoting Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). "Factors that go into determining whether sufficient minimum contacts exist include the foreseeability that the defendant's conduct will result in suit in the forum state and the defendant's purposeful availment of the forum's privileges and protections." Georgia Insurers, 602 So.2d at 1264 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). In determining whether personal jurisdiction would comport with fair play and substantial justice, the facts of each case must be weighed. Venetian Salami; Quality Christmas Trees.

A defendant from a foreign jurisdiction may contest jurisdiction by filing a motion to dismiss. The motion may challenge the jurisdictional allegations of the complaint and it may claim a lack of sufficient minimum contacts. See Venetian Salami; Horowitz; Beasley v. Diamond R. Fertilizer, Co., Inc., 710 So.2d 1025 (Fla. 5th DCA 1998)

; Quality Christmas Trees; John Posey Corp. v. R.J.T. Eng'g, Inc., 617 So.2d 441 (Fla. 5th DCA 1993). Affidavits are generally necessary to support these challenges because the motion, by itself, only raises the legal sufficiency of the pleadings which is not an issue in these proceedings. Horowitz; Hewitt v. Taffee, 673 So.2d 929 (Fla. 5th DCA 1996). The burden then shifts to the plaintiff to prove by affidavit or other sworn statement that jurisdiction is proper. Venetian Salami; Quality Christmas Trees. If the affidavits can be harmonized, the trial court can make a decision based upon facts that are essentially undisputed. Venetian Salami; Quality Christmas Trees. If the affidavits are in direct conflict and cannot be reconciled, then the trial court must hold a limited evidentiary hearing to determine jurisdiction. Venetian Salami; Clarkson v. Snyder, 739 So.2d 157 (Fla. 5th DCA 1999); John...