Third District Court of Appeal
State of Florida
Opinion filed November 21, 2018.
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No. 3D18-792
Lower Tribunal No. 17-13703
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Highland Stucco and Lime Products, Inc.,
Appellant,
vs.
Silverio Onorato and Faye Onorato,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Jose M. Rodriguez, Judge.
GrayRobinson, P.A., and Jack R. Reiter, for appellant.
Rebecca S. Vinocur; Simmons Hanly Conroy and William Kohlburn (Salt
Lake City, UT), for appellees.
Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
ON MOTION FOR CLARIFICATION
ROTHENBERG, C.J.
On the appellee’s motion for clarification, we grant the motion, withdraw
this court’s opinion issued on September 20, 2018, and issue the following opinion
in its stead.
The defendant below, Highland Stucco and Lime Products, Inc.
(“Highland”), appeals from an order denying its motion to dismiss for lack of
personal jurisdiction. Because the plaintiffs, Silverio Onorato (“Onorato”) and
Faye Onorato (collectively, “the plaintiffs”) failed to satisfy the “minimum
contacts” federal constitutional due process requirement, see Reynolds Am., Inc. v.
Gero, 56 So. 3d 117, 119 (Fla. 3d DCA 2011) (citing Venetian Salami Co. v.
Parthenais, 554 So. 2d 499, 502 (Fla. 1989)), we reverse.
BACKGROUND
The plaintiffs filed a products liability action against Highland and several
other defendants alleging that Onorato developed mesothelioma from his exposure
from 1972 to 1976 to asbestos-containing products that were manufactured,
distributed, and/or sold by the defendants in the state of Florida.
Highland filed a motion to dismiss for lack of personal jurisdiction, and in
support of its motion, Highland submitted the sworn affidavit of Frederick M.
Atkinson (“Atkinson”). In his affidavit, Atkinson explained that Highland, which
dissolved in 2009, was acquired in the mid-1960s by his father, who is now
deceased, and Atkinson began working at Highland in 1966, moving up through
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the ranks of the company until he became the vice-president in 1972, and the
president approximately twenty years later. The affidavit provides that, among
other things, Highland is not and has never been a resident of the state of Florida,
and at all times has been a resident of the state of California with its principal place
of business in California; had no owners, agents, or employees in Florida; never
owned or operated a facility outside of Southern California; never transacted any
business in Florida; never negotiated, entered into, or performed a contract in
Florida; never owned, used, or possessed real or personal property in Florida; never
maintained a place of business in Florida; was never registered to conduct business
in Florida; never maintained any bank accounts, offices, post office boxes,
telephone numbers, or any other business facility in Florida; never advertised in
any Florida publication or on any Florida radio or television station; did not
directly solicit business in Florida; never manufactured, distributed, sold, supplied,
or installed any asbestos-containing products in Florida; and had no connection
with Florida arising from any action or conduct Highland purposely directed
towards Florida. The affidavit further states that “[t]he overwhelming majority of
HIGHLAND’s business was conducted in California. During the time period when
HIGHLAND used asbestos, its products were primarily sold to building supply
dealers within a 60 mile radius of its Van Nuys, California plant.”
In response to Highland’s motion, the plaintiffs submitted the following: (1)
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excerpts from Onorato’s deposition wherein he testified that Highland’s products
were commercially available for purchase in Florida during the time of his
exposure; (2) a 1959 trade journal advertisement for Highland’s “Hi-Sorb”
acoustical plaster that was distributed by Highland Stucco and Lime Products of
Florida, Inc. (“Highland of Florida”); (3) an article from the same trade journal that
references a plant in Fort Lauderdale operated by Highland of Florida; and (4) an
excerpt from Atkinson’s deposition which was taken in connection with a 2000
California lawsuit. Highland replied with documentation demonstrating that
Highland of Florida was dissolved in 1964, approximately eight years prior to
Onorato’s alleged exposure.
The trial court conducted a non-evidentiary hearing on the motion. At the
conclusion of the hearing, the trial court denied Highland’s motion to dismiss. In
its order, the trial court concluded that the plaintiffs had alleged sufficient
jurisdictional facts to support the trial court’s exercise of specific jurisdiction over
Highland pursuant to section 48.193(1)(a), Florida Statutes, and to satisfy the
constitutional due process requirements because Onorato “testified to his use of
and exposure to Highland Stucco products within the state of Florida,” and that
“[the] product was purchased through distributors in Florida.” This appeal
followed.
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STANDARD OF REVIEW
This Court reviews a trial court’s ruling on a motion to dismiss for lack of
personal jurisdiction de novo. Wendt v. Horowitz, 822 So. 2d 1252, 1256 (Fla.
2002). Where the trial court’s decision is based on live testimony, the appellate
court defers to the trial court’s determination as to the credibility of witnesses.
Evans v. Thornton, 898 So. 2d 151, 152 (Fla. 4th DCA 2005) (citing McCarter v.
Bigfoot Indus. Inc., 805 So. 2d 1028, 1031 (Fla. 4th DCA 2001)). Because the
trial court made its determination based only on written submissions, we stand on
equal footing with the trial court as to the interpretation of the written submissions.
Crawford v. Baker, 64 So. 3d 1246, 1251 (Fla. 2011) (citing Muir v. Muir, 925 So.
2d 356, 358 (Fla. 5th DCA 2006)).
ANALYSIS
I. Personal Jurisdiction
In Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), the
Florida Supreme Court set forth a two-step process for determining whether
personal jurisdiction exists. First, a trial court must determine whether: (1) there
exist sufficient jurisdictional facts to bring the action within the purview of
Florida’s long-arm statute, section 48.193, Florida Statutes;1 and (2) whether the
1During the time of Onorato’s alleged exposure, the statute was numbered as
section 48.182, Florida Statutes.
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foreign corporation possesses sufficient minimum contacts with Florida to satisfy
federal constitutional due process requirements. Venetian Salami, 554 So. 2d at
501-02. The first, or statutory prong, is established by demonstrating either general
or specific jurisdiction. Teva Pharm. Indus. v. Ruiz, 181 So. 3d 513, 517 (Fla. 2d
DCA 2015). General jurisdiction is established where the defendant has engaged
in substantial and not isolated activity within the state. Id. In other words, the
defendant’s affiliations with the state are so continuous and systemic as to render it
essentially “at home” in the forum state. Daimler AG v. Bauman, 571 U.S. 117,
128 (2014) (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.
915, 919 (2011)). Specific jurisdiction, on the other hand, is established by
pleading specific facts that demonstrate that the defendant’s conduct fits within
one or more subsections of section 48.193.
A. Specific Jurisdiction Under Florida’s Long-Arm Statute
In this case, the plaintiffs are relying on specific jurisdiction in order to
satisfy personal jurisdiction under Florida’s long-arm jurisdiction. Section
48.193(1)(a) provides, in part:
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:
1. Operating, conducting, engaging in, or carrying on a business or
business venture in this state or having an office or agency in this
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state.
2. Committing a tortious act within this state.
3. Owning, using, possessing, or holding a mortgage or other lien on
any real property within this state.
4. Contracting to insure a person, property, or risk located within this
state at the time of contracting.
. . . .
6. Causing injury to persons or property within this state arising out
of an act or omission by the defendant outside this state, if, at or
about the time of the injury, either:
a. The defendant was engaged in solicitation or service
activities
within this state; or
b. Products, materials, or things processed, serviced, or
manufactured by the defendant anywhere were used or
consumed within this state in the ordinary course of
commerce, trade, or use.
7. Breaching a contract in this state by failing to perform acts
required by the contract to be performed in this state.
. . . .
In the first amended complaint (“complaint”), the plaintiffs alleged that
Onorato developed mesothelioma as a result of being exposed in Florida to
products containing asbestos manufactured by Highland. Because the complaint
alleges that Highland committed a tortious act in Florida, thus satisfying specific
jurisdiction under section 48.193(1)(a)(2), the burden shifted to Highland to
contest the allegations by affidavit or other proof, or to claim that the federal
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minimum contacts requirement was not satisfied. S. Wall Prods. Inc. v. Bolin, 251
So. 3d 935, 938-39 (Fla. 4th DCA 2018) (citing Venetian Salami, 554 So. 2d at
502).
As noted above, Highland submitted the Atkinson affidavit in support of its
motion to dismiss. In his affidavit, Atkinson averred that Highland never
transacted any business in Florida; never negotiated, entered into, or performed a
contract in Florida; never owned, used, or possessed real property in Florida; never
contracted to insure any person, property, or risk in Florida; never maintained a
place of business in Florida; never registered to do business in Florida; never had a
registered agent in Florida; never obtained bank accounts, offices, post office
boxes, telephone numbers, or any other business facilities in Florida; and never
advertised in any Florida publication, radio station, or television station.
Atkinson’s affidavit also states that Highland did not directly solicit business
within Florida; had no connection with Florida arising from any action or conduct;
never purposely directed conduct toward Florida; and never manufactured,
distributed, sold, supplied or installed any asbestos-containing products in Florida.
Because Highland adequately contested the allegations, the burden then
shifted back to the plaintiffs to refute the evidence submitted by Highland.
Venetian Salami, 554 So. 2d at 502. The plaintiffs conducted no jurisdictional
discovery and the only evidence they submitted to rebut Atkinson’s affidavit was:
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(1) an unauthenticated advertisement from a 1959 trade journal for Highland Hi-
Sorb acoustical plaster distributed by Highland of Florida; (2) an unauthenticated
article in the same 1959 trade journal that references a plant in Fort Lauderdale
operated by Highland of Florida; and (3) testimony given by Atkinson in a 2000
California case. In the 2000 California case, Atkinson specifically testified that all
of Highland’s sales were made to building material dealers who would usually pick
the products up at the plant. However, on occasion, Highland would deliver the
products to the dealers, but this did not occur often because the company had only
one truck and primarily sold to dealers within a sixty-mile radius of its plant in
Van Nuys, California. Highland contends that nothing in Atkinson’s testimony
serves to refute the affidavit that Atkinson filed in this case. We agree.
Highland, the named defendant in this action, was a California corporation
that dissolved in 2009. Highland of Florida, at best, was a Florida corporation that
dissolved in 1964, approximately eight years before Onorato’s alleged exposure to
stucco products containing asbestos, and Onorato has failed to show any
connection or relationship between the two corporations. Nothing in the record
suggests that the two corporations shared a corporate identity.
Further, even if the plaintiffs had established that the Florida entity was a
subsidiary of Highland, the mere presence of a subsidiary in Florida, without more,
is insufficient to subject a non-Florida corporate parent to Florida’s long-arm
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jurisdiction. See Walt Disney Co. v. Nelson, 677 So. 2d 400, 403 (Fla. 5th DCA
1996). More importantly, even if the plaintiffs had satisfied specific jurisdiction
under Florida’s long-arm jurisdiction, they still failed to establish that Highland,
not Highland of Florida, had sufficient minimum contacts with Florida, such that
extending jurisdiction does not offend constitutional due process.
B. Constitutional Due Process
While the statutory prong of the analysis is applied broadly, the
constitutional
prong is controlled by United States Supreme Court precedent interpreting the Due
Process Clause and imposes a more restrictive requirement. Exec-Tech Bus. Sys.,
Inc., v. New Oji Paper Co., 752 So. 2d 582, 584 (Fla. 2000). The constitutional
prong of the analysis requires the trial court to consider whether the defendant has
sufficient minimum contacts with the state so that the exercise of jurisdiction
would not offend traditional notions of fair play and substantial justice. Venetian
Salami, 554 So. 2d at 502 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)).
In this connection, the plaintiff must establish that the defendant’s contacts
with the forum state are: (1) related to the cause of action or gave rise to it; (2)
involve some act by which the defendant purposefully availed itself of the
privilege of conducting business within the forum; and (3) the defendant’s act is
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such that it should reasonably anticipate being haled into court in that forum state.
See Bolin, 251 So. 3d at 938 (citing Moro Aircraft Leasing, Inc. v. Int’l Aviation
Mktg., Inc., 206 So. 3d 814, 817 (Fla. 2d DCA 2016)). “Random, fortuitous, or
attenuated contacts” are insufficient. See Burger King Corp. v. Rudzewicz, 471
U.S. 462, 475 (1985).
The “purposefully availed itself of conducting business within the forum”
and that the “act is such that it should reasonably anticipate being haled into court
in that forum state” prongs of the constitutional due process analysis are especially
important in this appeal. In products liability cases like this one, it is the
defendant’s purposeful availment that renders jurisdiction consistent with
“traditional notions of fair play and substantial justice.” J. McIntyre Mach., Ltd. v.
Nicastro, 564 U.S. 873, 880 (2011). It is not enough that Highland’s products may
have found their way into Florida or that Highland may have predicted that they
might reach Florida, as foreseeability that a product may find its way into a forum
state is not enough, by itself, to allow that state to constitutionally exercise
jurisdiction over an out-of-state defendant. Blumbery v. Steve Weiss & Co., Inc.,
922 So. 2d 361, 365 (Fla. 3d DCA 2006); see also Bolin, 251 So. 3d at 939-40
(noting that the United States Supreme Court has concluded that merely placing
goods in the stream of commerce does not create sufficient minimum contacts to
warrant the assertion of jurisdiction) (citing to the plurality in J. McIntyre Mach.).
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Specifically, in Bolin, the Fourth District concluded in an asbestos products
liability case that Florida lacked personal jurisdiction over the Georgia corporate
defendant where there was no evidence that the Georgia defendant marketed its
product in the state, employed agents in the state, had any agreements with
distributors in the state, or had any contact which would suggest purposeful
availment of the privileges of the forum, and had not presented any evidence as to
how the defendant’s product was distributed to Florida.
Similarly, in the instant case, the plaintiffs never established a link between
Highland and the product he used, how it came to be in Florida, nor that
Highland’s contacts within the state of Florida were “such that the maintenance of
the suit does not offend ‘traditional notions of fair play and substantial justice.’” J.
McIntyre Mach., 564 U.S. at 880 (quoting Int’l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)). We, therefore, conclude that even if specific jurisdiction under
Florida’s long-arm jurisdiction was established, the plaintiffs failed to meet their
burden of overcoming Highland’s sworn affidavit and submitting evidence
demonstrating that Highland’s contacts with Florida are sufficient under the
constitutional due process prong of the jurisdictional analysis.
CONCLUSION
Highland submitted a very detailed affidavit in support of its motion to
dismiss for lack of personal jurisdiction. Because the plaintiffs failed to satisfy
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their burden by presenting evidence as to how Highland’s product(s) may have
made their way to Florida and in what quantity, or that Highland directed its
product into Florida for distribution, and it was undisputed that Highland was at all
times a resident of California, with its principal place of business in California, and
has never conducted business in Florida, advertised in a Florida publication, nor
manufactured, sold, distributed, or supplied any products containing asbestos in
Florida, the plaintiffs failed to demonstrate that Highland purposefully availed
itself of the privilege of conducting business within the state such that it reasonably
could have anticipated being haled into court in this state. The plaintiffs, therefore,
failed to meet their burden of satisfying the constitutional due process prong of the
personal jurisdiction analysis. Accordingly, we reverse the trial court’s order
denying Highland’s motion to dismiss for lack of personal jurisdiction.
Reversed.
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