Rollet v. De Bizemont

• Decision Date: 11 March 2015
• Docket Number: No. 3D14–2165.,3D14–2165.
• Citation: 159 So.3d 351
• Parties: Gilles ROLLET, Appellant, v. Gwenaelle DE BIZEMONT, Appellee.
• Court: Florida District Court of Appeals

159 So.3d 351

Gilles ROLLET, Appellant

v.Gwenaelle DE BIZEMONT, Appellee.

No. 3D14–2165.

District Court of Appeal of Florida, Third District.

March 11, 2015.

Pardo Gainsburg and Stevan J. Pardo, Miami, and Michael J. Pardo, for appellant.

Alain Lecusay, Miami, for appellee.

Before SUAREZ, SALTER and EMAS, JJ.

Opinion

EMAS, J.

Gilles Rollet appeals a non-final order denying his motion to dismiss for lack of personal jurisdiction. For the reasons that follow, we reverse and remand with directions to dismiss the complaint for lack of personal jurisdiction.

BACKGROUND

Gwenaelle de Bizemont (“de Bizemont”) filed a complaint against her husband¹ , Rollet and others² , seeking, inter alia, equitable rescission of an assignment of a real estate contract to purchase a condominium on South Beach. De Bizemont alleged that Rollet fraudulently, or with undue influence, assigned the contract to a foreign entity without de Bizemont's consent in order to divest her of her property rights. The only allegation in the Complaint relating to personal jurisdiction was de Bizemont's statement that Rollet was both “sui juris” and “a foreign resident.” It is undisputed that Rollet and de Bizemont are citizens of France and reside in Dubai, United Arab Emirates. Neither of them have ever resided in Florida.

The purchase and sale contract was attached to the complaint, and provided that the closing was to take place in Miami–Dade County, and that the contract was to be construed under Florida law. The assignment at issue was also attached to the complaint. It identified the assignee as Aderson Capital, Ltd., with an address in the British Virgin Islands.

Rollet filed a motion to dismiss the complaint for lack of personal jurisdiction, together with his accompanying affidavit. In the affidavit, Rollet averred de Bizemont failed to plead allegations to establish personal jurisdiction over him, and that it would be impossible to plead any such allegations because Rollet:

• Was a French citizen and not a United States citizen;

• Was never domiciled in nor ever resided in Florida;

• Has resided in Dubai, United Arab Emirates, without interruption, since 2005;

• Did not own any real property in Florida, or hold any mortgage or lien on real property in Florida;

• Had no office, agency or registered agent in Florida and was not registered to do business in Florida;

• Did not do business in Florida or conduct any mailing, advertising or solicitation in Florida;

• Possessed no Florida licenses or registrations; and

• Had not traveled to Florida for any reason since 2010.

Rollet also averred that he and de Bizemont signed the real estate contract in Dubai, and that he had no conversations with her in Florida regarding any transaction that is the subject of the lawsuit. De Bizemont filed no counter-affidavit or other document or evidence to contest the averments in Rollet's affidavit.

A non-evidentiary hearing was held on August 13, 2014, at the conclusion of which the court entered an order denying the motion to dismiss without elaboration.³ This appeal followed.

Rollet asserts that the Complaint failed to contain sufficient allegations to establish personal jurisdiction and that, given the unrebutted averments in Rollet's affidavit, the trial court erred in denying the motion to dismiss. De Bizemont contends that the trial court's order must be affirmed because Rollet failed to provide a transcript of the non-evidentiary hearing; that it is improper for Rollet to rely on his affidavit on appeal because the hearing below was non-evidentiary; and that the trial court properly denied the motion to dismiss because the Complaint sufficiently alleged a claim of fraud which arose in Florida.

ANALYSIS

We review the issue presented de novo. Labbee v. Harrington, 913 So.2d 679 (Fla. 3d DCA 2005). Our analysis begins with Florida's long-arm jurisdiction statute, section 48.193, Florida Statutes (2014), which provides, in pertinent part:

(1)(a) 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 and, if he or she is a natural person, his or personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts:

1. Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.

2. Committing a tortious act within this state.

...

7. Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

The Florida Supreme Court has described the two-step process required to be applied by a trial court in its determination of personal jurisdiction over a particular defendant:

First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements.

Borden v. East–European, Ins. Co., 921 So.2d 587, 592 (Fla.2006) (quoting Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989) ). See also Tobacco Merchants Ass'n of U.S. v. Broin, 657 So.2d 939, 941 (Fla. 3d DCA 1995). In determining whether the complaint alleges sufficient jurisdictional facts to bring the action within Florida's long-arm statute, “the trial court must strictly construe the statute in favor of the non-resident defendant[ ].” Navas v. Brand, 130 So.3d 766 (Fla. 3d DCA 2014). “If the complaint does not allege a sufficient basis to assert long-arm jurisdiction over the defendant, the court need not reach the issue of whether the defendant has the requisite minimum contacts with the state.” Vance v. Tire Eng'g & Distrib., LLC, 32 So.3d 774, 776 (Fla. 2d DCA 2010).

An allegation in the complaint that a defendant is “sui juris” is clearly insufficient, alone, to establish long-arm jurisdiction over a non-resident defendant. See Hilltopper Holding Corp. v. Estate of Cutchin, 955 So.2d 598, 601 (Fla. 2d DCA 2007) (noting the plaintiff may meet its burden of sufficiently pleading the basis for jurisdiction “either by tracking the language of section 48.193 without pleading supporting facts, or by alleging specific facts that demonstrate that the defendant's actions fit within one or more subsections of section 48.193 ”). Nevertheless, de Bizemont contends that the complaint sufficiently alleged a basis for specific personal jurisdiction⁴ because it attached a contract for the purchase and sale of real property in Florida, and that contract was signed by de Bizemont and Rollet.⁵ However, the Complaint (as against Rollet) does not allege a breach of this purchase and sales contract.⁶ The gravamen of the Complaint against Rollet is that he fraudulently assigned this contract to a third party who ultimately purchased the property. Neither Rollet nor de Bizemont purchased the property that is the subject of the contract, and the mere attachment of this contract to the Complaint is insufficient to establish personal jurisdiction over Rollet because the allegations against him assert a fraudulent assignment of the contract. There is no allegation in the complaint that the assignment took place in Florida. See Edwards v. Airline Support Group, Inc., 138 So.3d 1209 (Fla. 4th DCA 2014) (holding the complaint did not sufficiently allege a basis for specific jurisdiction where there was no allegation that an alleged fraud took place in Florida).

Further, even if we were to conclude that the complaint sufficiently alleged specific personal jurisdiction over Rollet, de Bizemont failed to allege or otherwise establish sufficient minimum contacts to satisfy the due process prong of Florida's long-arm jurisdiction. In Florida, “both parts 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) ). Under this prong, which is to be determined on a case-by-case basis, “the specific inquiry is whether the nonresident defendant should reasonably have anticipated being haled into court in Florida.” Wiggins v. Tigrent, Inc., 147 So.3d 76, 86 (Fla. 2d DCA 2014). The complaint contains no allegations to satisfy the minimum contacts prong.

Finally, de Bizemont's failure to file an affidavit or other evidence to rebut Rollet's affidavit, filed in support of his motion to dismiss, required dismissal of the complaint.

As this court has previously recognized:

There is a specific procedure set out in Venetian Salami for determining the sufficiency of allegations asserting jurisdiction under the long-arm statute. A defendant wishing to contest jurisdiction must file a legally sufficient affidavit in support of his position. “The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.”

Broin, 657 So.2d at 941 (quoting Venetian Salami, 554 So.2d at 502 ). Moreover, once this burden has shifted⁷ , “[i]f no such sworn proof is forthcoming from the plaintiff as to the basis for jurisdiction, the trial court must grant the defendant's motion to dismiss. ” Id. (emphasis added). See also Vencap, Inc. v. McDonald Sec. Corp., 827 So.2d 1061 (Fla. 2d DCA 2002) ; Horowitz v. Rose Printing Co., Inc., 664 So.2d 325 (Fla. 1st DCA 1995) ; Williams v. Martin, 595 So.2d 164 (Fla. 4th DCA 1992).

It is undisputed that Rollet filed an affidavit contesting the allegations of personal jurisdictional set forth in de Bizemont's complaint. That...