5D05-250 Carter v. Rambo

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-250

Case Date: 02/20/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006 ROCH CARTER, Appellant, v. THE ESTATE OF ELIZABETH P. RAMBO, ETC., Appellee. ________________________________/ Opinion filed February 24, 2006 Non-Final Appeal from the Circuit Court for Volusia County, Edwin P.B. Sanders, Judge. James B. Thompson, Jr., and Heather C. Goodis of Thompson, Goodis, Thompson, Groseclose & Richardson, P.A., St. Petersburg, for Appellant. Susan B. Morrison of Law Office of Susan B. Morrison, P.A, Tampa and Bennie Lazzara, Jr., of Wilkes & McHugh, P.A., Tampa for Appellee. PALMER, J. Roch Carter appeals the trial court's non-final order denying his motions to quash service of process and to dismiss this action. Concluding that the Estate of Elizabeth P. Rambo (Rambo) failed to establish personal jurisdiction over Carter, we reverse.1 Rambo filed suit against numerous defendants, including Carter, for injuries allegedly caused by the negligent operation of a nursing home. In the complaint, Carter is described as being a managing member of Partner's Health Group-Florida, LLC (LLC), the entity which operated the nursing home. The complaint alleges that Carter Case No. 5D05-250

breached or failed to perform the duties of a managing member of the LLC and that said breach or failure constituted recklessness or an act of omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of the rights of others. Carter filed motions to quash service of process and to dismiss the complaint, arguing that the trial court lacked personal jurisdiction over him. In support of the motions, Carter filed an affidavit asserting that he did not have sufficient minimal contact with the State of Florida to establish personal jurisdiction. Carter also filed a deposition in support of his motion. In that deposition, Carter admitted that he filed uniform business reports with Florida for the LLC; however, he claimed that he signed the reports in error. A certification at the bottom of the reports set forth as follows: I further certify that the information indicated on this report is true and accurate and that my signature shall have the same legal effect as if made under oath; that I am a managing member or manager of the limited liability company or the receiver or trustee empowered to execute this report as required by chapter 608 Florida statutes. Carter stated that he was authorized to sign on behalf of the company, but knew he was not a managing partner. The trial court denied Carter's motions on the basis that Carter had signed the uniform business reports filed with Florida as a managing member. The trial court explained as follows: COURT: Okay. Guys, I think when you sign under oath that you're a manager or managing member, that you get personal

Jurisdiction is proper pursuant to rule 9.130(a)(3)(C)(i) of the Florida Rules of Appellate Procedure. 2

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jurisdiction. Now, that doesn't foreclose his ability to go in and show that he wasn't to a jury. But as far as getting personal jurisdiction, I think it's denied. I think you got it. Carter appeals, arguing that the trial court erred in so ruling because Rambo failed to demonstrate a basis for Florida to have personal jurisdiction over him. We agree. The question in this appeal is whether the courts in Florida can obtain personal jurisdiction over non-resident Carter in his individual capacity. Two inquiries must be made when deciding whether personal jurisdiction exists over a nonresident: (1) 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, and (2) if the complaint properly alleges long-arm jurisdiction, sufficient minimum contacts must be demonstrated that satisfy the requirements of federal due process. Law Offices of Sybil Shainwald v. Barro, 817 So. 2d 873 (Fla. 5th DCA 2002). The first prong of this analysis, involves a shifting burden: Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts. Fla.R.Civ.P. 1.070(i); Jones v. Jack Maxton Chevrolet, Inc., 484 So. 2d 43 (Fla. 1st DCA 1986). By itself, the filing of a motion to dismiss on grounds of lack of jurisdiction over the person does nothing more than raise the legal sufficiency of the pleadings. Elmex Corp. v. Atlantic Fed. Savings & Loan Ass'n, 325 So. 2d 58 (Fla. 4th DCA 1976). A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits 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. Elmex Corp. Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989).

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Here, Rambo filed a complaint which tracked the language of Florida's long-arm statute and alleged in detail that Carter was an individual doing business in Florida, that he operated a nursing home during Rambo's residence, and that he had committed tortious acts while in Florida. See

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