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Date: 07-06-2022
Case Style:
Shaun P. Murphy, Former Husband vs Claudia A. Murphy, Former Wife
Case Number: 20-1117
Judge:
Adam Tanenbaum
Court:
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA
On Appeal From The Circuit Court for Duval County
Lance M. Day
Judge
Plaintiff's Attorney: Rebecca B. Creed, Creed & Gowdy, P.A
Defendant's Attorney:
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Description:
Tallahassee, Florida - Divorce lawyer represented Appellant with an order denying motion to dismiss for lack of personal jurisdiction.
In September 2019, the former wife filed a petition that
sought domestication of a 1999 Hawaiian divorce decree,
clarification of the former wife’s entitlement to the former
husband’s military pension, and determination of arrears. The
former wife alleged that the parties had not resided in Hawaii in
approximately twenty years. To support her contention that the
former husband was subject to jurisdiction in Florida, she alleged
that he “resided in the State of Florida for most of the last ten to
eleven years” in “both the Tampa and Jacksonville areas” and had
“owned properties in both of the counties.” She further alleged “he
may still own property” in Florida. (emphasis supplied). While
acknowledging the former husband “recently left the state,” the
former wife went on to aver that “his continued, substantial and
recent residency in the state provide a basis for personal
jurisdiction over him.” (emphasis supplied).
A summons issued, and the former wife had the former
husband personally served in North Carolina. The former husband
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then timely filed a sworn motion to dismiss that challenged the
trial court’s jurisdiction over him. His sworn statements
established that he resided in Florida from January 2010 through
December 2012, and from July 2017 through February 2019, all
incidental to his military service. He claimed residency in North
Carolina. If true, this meant the former husband last resided in
Florida roughly seven months prior to the former wife’s initiation
of her suit. He did admit to owning real property in Florida from
July to November 2017, but he denied owning any in the state
since then.
The trial court held a hearing on the former husband’s motion,
but the former wife did not offer any evidence to refute the motion’s
sworn statements. Nevertheless, in the trial court’s order denying
the motion, it claimed to be “confine[d] to the four corners of the
pleading.” It accepted all of the former wife’s allegations “as true”
and “construe[d] the allegations in the light most favorable to the”
former wife. The trial court acknowledged the parties’ agreement
that the former husband had relocated to North Carolina before
the filing of the petition. Still, it denied the motion, reasoning that
the former wife “identifie[d] the parties, allege[d] personal and
subject matter jurisdiction, and state[d] a claim for which relief
can be granted.” This, though, is not the analysis required by the
supreme court for application of Florida’s long-arm statute.
Indeed, the trial court failed to cite or even reference a provision
in the long-arm statute on which it relied to find personal
jurisdiction over the former husband. The law required that the
motion be granted, and we correct the trial court’s error here.
II
The Legislature limns a variety of actions that could cause a
person living outside Florida to be subjected to the jurisdiction of
this state’s courts. See § 48.193, Fla. Stat.; see also Venetian
Salami Co. v. Parthenais, 554 So. 2d 499, 500 (Fla. 1989) (“By
enacting section 48.193, the legislature has determined the
requisite basis for obtaining jurisdiction over nonresident
defendants as far as Florida is concerned.”). As a threshold matter,
a plaintiff must plead (and if challenged, prove) that a non-resident
defendant engaged in one of the statutorily enumerated forms of
conduct before service of Florida process outside the state could be
4
treated as if it had been effectuated within the state. See
§ 48.193(3), Fla. Stat.; cf. Cortez v. Palace Resorts, Inc., 123 So. 3d
1085, 1090 (Fla. 2013) (observing that personal jurisdiction is
obtained “by effecting service of process, which occurs where the
defendant is present in, resides in, or has its principal place of
business in Florida, or through application of the state’s long-arm
statute”).
To be sure, a plaintiff does not need to plead much in the way
of jurisdictional facts. The former wife, for example, did not have
to plead any more than language tracking the long-arm statute to
authorize issuance of process for service on the former husband in
North Carolina. See Fla. R. Civ. P. 1.070(h) (providing that when
service of process “is to be made under statutes authorizing service
on nonresidents,” the basis for service may be pleaded “in the
language of the statute without pleading the facts supporting
service”). As an alternative, the former wife could have chosen to
“alleg[e] specific facts indicating that the defendant’s actions fit
within one of the sections of Florida’s long-arm statute,” without
citing the applicable long-arm provision (although that would have
been helpful). Dep’t of Legal Affairs v. Wyndham Int’l, Inc., 869 So.
2d 592, 596 (Fla. 1st DCA 2004). Either way, the onus was on the
former wife to allege some cognizable basis for the court’s exercise
of jurisdiction over the former husband outside the state.
The only readily apparent jurisdictional allegations that the
former wife made in her petition addressed the length of time the
former husband had lived in Florida before he left, the properties
he used to own in Florida, and the possibility that he may still own
property in Florida. She did not specify a provision in the long-arm
statute on which she sought to rely, but she may have had section
48.193(1)(a)5. in mind. It is a “specific jurisdiction” provision,1 and
it authorizes personal jurisdiction over a nonresident if he was still
1 “‘Specific jurisdiction’ . . . occurs ‘when a State exercises
personal jurisdiction over a defendant in a suit arising out of or
related to the defendant’s contacts with the forum.’” White v.
Pepsico, Inc., 568 So. 2d 886, 888 n.3 (Fla. 1990) (quoting
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
414 n.8 (1984)).
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either “maintaining a matrimonial domicile” in Florida or “resided
in this state” when the action was commenced. § 48.193(1)(a)5.,
Fla. Stat. For this provision to work for the former wife, however,
her suit had to be “a proceeding for alimony, child support, or
division of property in connection with an action to dissolve a
marriage,” or it had to be “an independent action for support of
dependents.” Id. The former wife’s suit was neither of these—it
instead sought clarification and enforcement of a divorce decree.
See Yoder v. Yoder, 363 So. 2d 409, 409–10 (Fla. 1st DCA 1978)
(holding that a suit to establish an out-of-state divorce decree as a
Florida judgment, adjudicate alimony arrearages due, and enforce
the decree was neither category of suit described in the provision
that is now subparagraph (5)). This subparagraph could not
support personal jurisdiction over the former husband.
That leaves one other section of the long-arm statute that
might arguably apply: subsection (2). The former wife in fact relied
on this subsection as part of her argument against the former
husband’s motion. Subsection (2) authorizes the exercise of
“general jurisdiction” over a non-resident defendant “who is
engaged in substantial and not isolated activity within this state.”
§ 48.193(2), Fla. Stat. (emphasis supplied).2 Unlike with specific
jurisdiction, there is no “require[d] connexity between the [nonresident’s] activities and the cause of action” asserted in the
complaint. Wendt v. Horowitz, 822 So. 2d 1252, 1260 n.7 (Fla.
2002); see also White, 568 So. 2d at 889 n.4 (“‘Connexity’ is the term
courts have adopted to mean a link between a cause of action and
the activities of a defendant in the forum state.”); Am. Overseas
Marine Corp. v. Patterson, 632 So. 2d 1124, 1130 (Fla. 1st DCA
1994) (“A finding of general jurisdiction in this case would subject
[a non-resident] to the jurisdiction of the Florida courts for all legal
action notwithstanding where the alleged wrongdoing or injury
occurred, or whether the injury had any connection with activities
undertaken in Florida.”). For this reason, the contacts must be
2 “When a State exercises personal jurisdiction over a
defendant in a suit not arising out of or related to the defendant’s
contacts with the forum, the State has been said to be exercising
‘general jurisdiction’ over the defendant.” White, 568 So. 2d at 888
n.3 (quoting Helicopteros, 466 U.S. at 414 n.9)).
6
“extensive and pervasive,” which is “a much higher threshold”
than for specific jurisdiction. Am. Overseas Marine Corp., 632 So.
2d at 1127–28 (internal quotations and citation omitted).
Demonstrating robust contacts within the state, however, is
not enough. Grammar rules tell us that under subsection (2), those
contacts also must be in the present, not just in the past. We say
this because the linking verb in the statutory provision that we
highlighted in the prior paragraph (viz.: “is engaged”) is in the
present tense. It is part of an adjective clause that begins with the
relative pronoun serving as the subject of the clause—“who.” That
clause altogether modifies the antecedent of “who,” which is “a
defendant.” This adjective clause, stated in the present tense,
thereby describes the type of defendant subject to general
jurisdiction in subsection (2). That is to say, because the verb “is”
links the past participle “engaged”—operating here as a subject
complement—to the relative pronoun it modifies—“who”—the
clause effectively links “engaged” (in the present tense) to the
defendant being described. This means, in turn, that jurisdiction
must be based on current (not exclusively past) “substantial and
not isolated activity” within Florida. Cf. Heineken v. Heineken, 683
So. 2d 194, 196 (Fla. 1st DCA 1996) (concluding that “limited past
contacts,” like a defendant’s possession of a Florida driver’s license
and a Florida voter registration card, are not “‘substantial and not
isolated’ activities within the state sufficient to” satisfy subsection
(2)); Gibbons v. Brown, 716 So. 2d 868, 870 (Fla. 1st DCA 1998)
(treating the phrase “is engaged” as adding a present-tense
component to the consideration of whether a defendant’s contacts
with the state are “substantial and not isolated activity”).
If the Legislature had intended to allow prior conduct (i.e.,
activity that started and ended in the past) to support jurisdiction
over a nonresident, it would have used a past tense of the being
verb (i.e., “was engaged”) or a perfect tense (i.e., “has engaged” or
“had engaged”). It did not. Then again, why would it? General
jurisdiction is premised on a non-resident defendant in essence
still being “present” in the state now. Cf. Rosenberg Bros. & Co. v.
Curtis Brown Co., 260 U.S. 516, 517 (1923) (“The sole question for
decision is whether, at the time of the service of process, defendant
was doing business within the state of New York in such manner
and to such extent as to warrant the inference that it was present
7
there.” (emphasis supplied)); see also Int’l Shoe Co. v. Washington,
326 U.S. 310, 317 (1945) (equating pervasiveness of a foreign
corporation’s “continuous and systematic” activities in the forum
state with its “presence” there). How could a non-resident
defendant’s prior contact with the state—now discontinued—be
used to support such a legal fiction? After all, by any measure, such
a defendant no longer is present in the state, virtually or
otherwise. It simply would not make any logical sense—and worse,
it would be wholly inconsistent with the long-arm statute—to
suggest the former husband’s previous connections or activities in
the state—no matter how pervasive they once were—are at all
relevant to whether the former husband could be subject to general
jurisdiction under subsection (2) at the time the former wife filed
suit.3
Simply put, unlike the type of contact required for specific
jurisdiction, the contacts in support of general jurisdiction, by
definition, cannot be exclusively in the past. The former wife had
to establish not only the former husband’s “extensive and
pervasive” contacts, but also the fact that he currently maintained
those contacts with Florida at the time she filed suit. This, she
failed to do. As we showed above with the highlighted words in our
description of the jurisdictional allegations, the only potentially
present contact alleged by the former wife was stated in her
petition as speculation: that “he may still own property” here. We
do not need to reach whether this allegation could suffice, though.
3 Prior contacts or activity would be relevant to the question
whether the former husband’s being hauled into a Florida court
was foreseeable. That, however, is a separate due-process analysis
that we do not have to reach here. Cf. World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 297 (1980) (addressing “the
foreseeability that is critical to due process analysis” by asking
whether “the defendant’s conduct and connection with the forum
State are such that he should reasonably anticipate being haled
into court there”). Unless the former wife sufficiently established
the application of the long-arm statute in the first instance (which
she did not), whether the former husband had the minimum
contacts with Florida to comport with due process is beside the
point.
8
Once the former husband contested the former wife’s jurisdictional
allegations with his sworn statement denying that he owned
property in Florida currently, the burden shifted to the former wife
“to prove by affidavit the basis upon which jurisdiction may be
obtained.” Venetian Salami, 554 So. 2d at 502; see also Jones v.
Jack Maxton Chevrolet, Inc., 484 So. 2d 43, 45 & n.4 (Fla. 1st DCA
1986) (explaining that regardless of the jurisdictional facts
pleaded, if a motion to dismiss is filed that challenges personal
jurisdiction, the plaintiff would have to “prove the evidentiary facts
to support the statutory requirements” in any event).
The former wife did not submit any affidavits or other sworn
statement, so she did not meet her burden of production. The only
evidence before the court was the former husband’s sworn motion,
leaving unrefuted the former husband’s statements that he had no
present contacts with Florida. The trial court should have disposed
of the former husband’s motion based on the undisputed fact that
he had no presence in the state at the time the former wife filed
suit. Cf. Venetian Salami, 554 So. 2d at 503 (explaining that the
trial court “will be in a position to make a decision [regarding
jurisdiction] based upon facts which are essentially undisputed”
when the affidavits that are submitted “can be harmonized”); id.
(explaining, however, that if the affidavits cannot be reconciled,
the court must “hold a limited evidentiary hearing in order to
determine the jurisdiction issue”). The trial court has no authority
to exercise jurisdiction over the former husband, and the motion to
dismiss must be granted.
* * *
We vacate the March 5, 2020, order denying the former
husband’s motion to dismiss, and we remand the matter with an
instruction to dismiss the petition for lack of personal jurisdiction.
VACATED and REMANDED with instruction.
B.L. THOMAS, J., concurs; MAKAR, J., dissents with opinion.
9
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
MAKAR, J., dissenting.
This straightforward appeal of an order exercising jurisdiction
over a former husband in a dispute over his military pension has
been pending in this Court for over two years. I dissent with only
a minimalist opinion to bring this case to an end.
In its March 2020 order, the trial judge properly exercised
personal jurisdiction because the former husband’s contacts with
Florida were sufficient under section 48.193(2), Florida Statutes,
the general jurisdiction statute, which does not require the former
wife’s “claim arise from activity or effects within Florida, nor that
there be any ‘connexity’ between the claim and the [former
husband’s] activities in Florida.” Garris v. Thomasville-Thomas
Cnty. Humane Soc’y, Inc., 941 So. 2d 540, 544 (Fla. 1st DCA 2006).
At the time the former wife filed her petition in September
2019, the former husband had resided in Florida two separate
times, totaling almost five years in the nine years prior to the
filing; his most recent residency was from July 2017 until February
2019, which was just months before the filing of the former wife’s
petition. The former husband had also owned property during one
of his residencies in Florida.
The fact that the former husband moved out of Florida in
2019, just before the petition was filed, does not automatically
negate jurisdiction; otherwise, defendants would leave the state in
an attempt to avoid jurisdiction despite having engaged in
substantial ongoing contacts just moments prior to being sued. See,
e.g., Singer v. Unibilt Dev. Co., 43 So. 3d 784, 789 (Fla. 5th DCA
2010) (“When the activities of the nonresident are of sufficient
quality that it should in fairness expect to defend itself here, it
should not make a difference that it happens to cease these
activities prior to the filing of the complaint, especially where the
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activities occur close in time to the events giving rise to the cause
of action.”); cf. Buckingham, Doolittle & Burroughs, LLP v. Kar
Kare Auto. Group, Inc., 987 So. 2d 818, 822 (Fla. 4th DCA 2008)
(noting that no caselaw exists that “addresses what period of time
must pass before a company which stops doing business in a state
is no longer considered to have sufficient contacts to justify general
in personam jurisdiction pursuant to the statute” and upholding
dismissal where business had terminated its relationship more
than eighteen months before suit was filed) (emphasis added).
General jurisdiction becomes meaningless if, as is claimed, a
defendant’s contacts must exist on the exact day and time the
lawsuit is filed; Florida courts have not imposed such an
unreasonable and linguistically cramped view of the language of
the general jurisdiction statute. Plus, if the legislature had
intended such a hyper-technical result it could have used limiting
language, such as “at the time of filing” or the like, that it has used
in dozens of other statutes; it did not—and courts shouldn’t on
their own initiative judicially interlineate words that defeat a
statute’s purpose
Outcome: Former husband’s substantial presence and activities in
Florida were neither isolated, haphazard, nor sporadic (such as
coming to Florida occasionally to visit family or friends). Instead,
he resided in-state for half of the nine years preceding—and up
until shortly before—the filing of the former wife’s petition. As
such, it is neither unforeseeable nor unjust to require the former
husband to be haled into a Florida court and allow the former
wife’s claim to proceed. The trial judge, after reviewing the
evidence and holding a hearing, denied the former husband’s
motion to dismiss on jurisdictional grounds, which was a proper
exercise of authority.
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