Silver v. Levinson

• Decision Date: 28 December 1994
• Docket Number: No. 94-1092,94-1092
• Citation: 648 So.2d 240
• Parties: 20 Fla. L. Weekly D119 Richard A. SILVER, Appellant, v. Lawrence LEVINSON, Appellee.
• Court: Florida District Court of Appeals

Page 240

648 So.2d 240

20 Fla. L. Weekly D119

Richard A. SILVER, Appellant, v. Lawrence LEVINSON, Appellee.

No. 94-1092.

District Court of Appeal of Florida Fourth District.

Dec. 28, 1994.

Rehearing Denied Feb. 2, 1995.

R. Fred Lewis of Magill & Lewis, P.A., Miami, for appellant.

Raoul G. Cantero, III and Alix J.M. Apollon of Adorno & Zeder, P.A., Miami, for appellee.

PARIENTE, Judge.

Richard A. Silver (defendant) appeals a trial court's order finding that it had personal jurisdiction over defendant, a Connecticut attorney; that venue was proper in Broward County; and that the complaint stated a cause of action for libel.

We have jurisdiction to review the trial court's determination of jurisdiction and venue pursuant to Florida Rules of Appellate Procedure 9.130(a)(3)(A) and (C)(i). Here, because the threshold question of personal jurisdiction turns on whether defendant committed an intentional tort in Florida, we must also necessarily review the complaint to determine whether it states a cause of action for libel. See 8100 R.R. Ave. Realty Trust v. R.W. Tansill Constr. Co., 638 So.2d 149 (Fla. 4th DCA 1994). If the complaint does not set forth a cause of action for the tort of libel, then assertion of personal jurisdiction predicated on the commission of that specific tort would be improper.

Defendant is an attorney who resides and practices in Connecticut. Lawrence Levinson (plaintiff) bases his assertion of personal jurisdiction on defendant's purposeful mailing of an allegedly defamatory letter from Connecticut to Florida and received in Florida by several individual recipients.

Specifically, plaintiff claims defendant wrote a letter to officers and directors of Cancer Treatment Holdings, Inc. (CTH), a company in which plaintiff owned stock. In the letter, attached to the complaint, defendant accused plaintiff of selling stock options at an artificially low price in order to fraudulently deprive his ex-wife of her share of the proceeds from a dissolution settlement agreement. Defendant's letter includes accusations of criminal conduct, including violations of the federal securities laws in connection with the transfer of the stock options. Plaintiff contends that defendant's statements were false and defamatory, made with actual malice and with intent to injure plaintiff. Defendant mailed this letter to CTH officers and directors in Florida. Consequently, plaintiff contends that his reputation has been damaged in Florida. Accepting the well-pleaded allegations of the complaint as true, in conjunction with the actual letter, we conclude that the complaint sets forth a cause of action for the intentional act of libel. See Hay v. Independent Newspapers, Inc., 450 So.2d 293 (Fla. 2d DCA 1984) and cases cited therein. Broward County is a proper venue as the place to which the letters were mailed.

Even if the complaint states a cause of action for libel, defendant contends he cannot be subject to personal jurisdiction in Florida on the basis of a single act, the mailing of the letter into Florida. Defendant's attack on jurisdiction is two-pronged under Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). Defendant first contends that his mailing of the letters from Connecticut to Florida does not constitute the commission of a tort "within this state" for the purpose of subjecting him to the long arm jurisdiction of the Florida courts under subsection 48.193(1)(b), Florida Statutes (1993). The trial court concluded that the allegations that defendant intentionally mailed the letters to Florida addressees and that plaintiff's injuries occurred in Florida were sufficient to allege a tort committed in the state of Florida. We agree that plaintiff's complaint containing a cause of action for an intentional tort of libel aimed directly at Florida and resulting in injuries to a Florida resident subjected defendant to the reach of our long arm statute.

Under Florida law, the tort of libel is not completed until the statements are published. Firestone v. Time, Inc., 271 So.2d 745 (Fla.1972), vacated on other grounds, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Hay, 450 So.2d at 293. In this case, the final element of the tort was not satisfied until the letters were received by the addressees in Florida. Until that time, no tort had been "committed." See generally Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777, 104 S.Ct. 1473, 1479, 79 L.Ed.2d 790 (1984); Restatement (Second) of Torts Sec. 577A, comment a (1977). This conclusion is in consonance with several federal circuit court decisions interpreting Florida law which have found that the place of the publication of the defamatory statement caused by the libel is a relevant inquiry for the purpose of applying Florida's long arm statute. Madara v. Hall, 916 F.2d 1510, 1515 (11th Cir.1990), cited with approval, In re Estate of Vernon, 609 So.2d 128, 129 (Fla. 4th DCA 1992); Rebozo v. Washington Post Co., 515 F.2d 1208, 1211-12 (5th Cir.1975).

In Carida v. Holy Cross Hosp., Inc., 424 So.2d 849 (Fla. 4th DCA 1982), overruled on other grounds, Doe v. Thompson, 620 So.2d 1004 (Fla.1993), slanderous statements made during a telephone call placed to a Florida number were found to provide a sufficient basis for personal jurisdiction over the nonresident caller. We do not agree that Carida was overruled by Doe because Doe only addressed the "corporate shield" doctrine: section 48.193(1)(b) does not subject an employee to personal jurisdiction who has performed a negligent act outside of the state solely in his corporate capacity even if the injury occurs in Florida. Thompson v. Doe, 596 So.2d 1178 (Fla. 5th DCA 1992), approved, 620 So.2d 1004 (Fla.1993). Our conclusion is in accordance with the first district's reasoning in Allerton v. State Dept. of Insur., 635 So.2d 36, 40 (Fla. 1st DCA), review denied, 639 So.2d 975 (Fla.1994):

We do not believe that the supreme court intended in Doe to deprive a Florida plaintiff, injured by the intentional misconduct of a nonresident corporate employee expressly aimed at him, of the right to obtain personal jurisdiction over that employee in a Florida court.

In Doe, the supreme court expressly noted that "[a] corporate officer committing fraud or other intentional misconduct can be subject to personal jurisdiction, however." 620 So.2d at 1006 n. 1 (emphasis supplied). In this case, defendant has not raised the corporate shield defense to personal jurisdiction. Even if he had, he would fall within the exception noted in Doe because he allegedly committed an intentional tort.

In defendant's second prong of attack, he asserts that subjecting him to jurisdiction in Florida violates his due process rights. We must analyze whether subjecting defendant to suit in Florida violates his due process rights even if jurisdiction is proper under Florida's long arm statute. Venetian Salami; Estate of Vernon, 609 So.2d at 128.

The single most important factor to consider is whether "the defendant's conduct and connection with the forum are such that he should reasonably anticipate being haled into court there...." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287, 100 S.Ct. 559, 562, 62 L.Ed.2d 490 (1980). This factor must be viewed from the perspective of the defendant, not that of the plaintiff. See Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 53 L.Ed.2d 683 (1977). Due process requires that the nonresident have sufficient minimum contacts with the state of Florida such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).

The United States Supreme Court has rejected any "talismanic jurisdictional formula" to determine the requisite minimum contact. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 485-86, 105 S.Ct. 2174, 2189, 85 L.Ed.2d 528 (1985). Subjecting a defendant to in personam jurisdiction based on a single, isolated transaction by the nonresident defendant does not necessarily offend due process. Lacy v. Force V Corporation, 403 So.2d 1050, 1054 (Fla. 1st DCA 1981); see also Godfrey v. Neumann, 373 So.2d 920 (Fla.1979). Doe does not hold otherwise. The analysis must focus on the nature of the act. When dealing with isolated acts of a defendant, rather than centering on continuous economic activity within the state, a key focus is the quality and nature of the interstate transaction. The court must inquire into whether the conduct is so random, fortuitous or attenuated that it cannot fairly be said that the potential defendant should reasonably anticipate being haled into court in another jurisdiction. Burger King, 471 U.S. at 486, 105 S.Ct. at 2189.

Physical presence within the state is not a necessary prerequisite, subject to the corporate shield doctrine enunciated in Doe. It would be neither logical nor consistent with notions of fair play or with modern realities to subject a nonresident motorist to personal jurisdiction in this state when he negligently injures a Florida resident in Florida based on an isolated act, but conclude that a professional who deliberately sends defamatory material into this state is beyond our jurisdictional reach. Having made our world more accessible through mail, phone and faxes:

[I]t is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted. So long as a commercial actor's efforts are "purposefully directed" toward residents of another State, we have consistently rejected the...