5D07-1559 Snyder v. McLeod

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-1559

Case Date: 12/24/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007

GRETCHEN SNYDER, Appellant, v. PATRICIA McLEOD, Appellee. ________________________________/ Opinion filed December 28, 2007 Non Final Appeal from the Circuit Court for Seminole County, John Galluzzo, Judge. David A. Collins of David A. Sierra & Associates, Orlando, and Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando, for Appellant. J. Scott Murphy of Allen & Murphy, P.A., Maitland, for Appellee. CASE NO. 5D07-1559

LAWSON, J. Gretchen Snyder appeals an order denying her motion to dismiss Patricia McLeod's personal injury lawsuit. The suit involves injuries that McLeod alleges to have suffered as a result of Snyder's negligent operation of an automobile in Georgia. We

agree with Snyder that the record reflects no statutory or constitutional basis for asserting personal jurisdiction over her, and reverse.1 A plaintiff has the initial burden to allege sufficient facts in his or her complaint to demonstrate the basis for a court's jurisdiction, including facts to establish both statutory and constitutional long-arm jurisdiction over a non-resident defendant. E.g., Hilltopper Holding Corp. v. Estate of Cutchin, 955 So. 2d 598, 601 (Fla. 2d DCA 2007) (citing Venetian Salami Co. v. Parenthais, 554 So. 2d 499, 502 (Fla. 1989)). If the plaintiff sufficiently pleads jurisdiction, the burden shifts to the defendant to file an affidavit or other sworn proof contesting the plaintiff's jurisdictional pleadings. Id . The defendant's affidavit "must contain factual allegations, which, if taken as true , show that the defendant's conduct does not subject him to jurisdiction." Id. (emphasis in original). If the defendant's affidavit fully disputes the plaintiff's jurisdictional allegations, the burden shifts back to the plaintiff to submit affidavits or other sworn proof establishing a basis for jurisdiction. Id. at 602. If the plaintiff fails to do so, the defendant's motion to dismiss must be granted. Id . McLeod's complaint alleged that Snyder was a Florida resident at the time of the accident. This allegation was sufficient to establish personal jurisdiction over Snyder. See, e.g., Davis v. State , 928 So. 2d 442, 448 (Fla. 5th DCA 2006) (noting that circuit courts have jurisdiction over Florida residents and citing to Patten v. Mokher, 184 So. 29 (Fla. 1938)). The burden then shifted to Snyder. Although Snyder's original motion to

This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) because the court's non-final order determined jurisdiction. The de novo standard of review applies. Wendt v. Horowitz, 822 So. 2d 1252, 1256 (Fla. 2002).

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dismiss did not include an affidavit, the trial court granted Snyder an opportunity to file a legally sufficient motion. Snyder's amended motion to dismiss included an affidavit that fully disputed the allegation that she was a Florida resident. According to Snyder's affidavit: (1) she resided in Buffalo, New York, at all material times; (2) she had lived in Florida only temporarily before the accident, and with no intention of becoming a Florida resident; (3) she had continuously received her mail in New York, having had it temporarily forwarded to Florida only for the short time she was here; (4) she had abandoned Florida before the accident, with no intention of returning; (5) she had left no possessions in Florida from her temporary stay; (6) she had always been licensed to drive in New York, including the day of the accident, and never had a Florida driver's license; and (7) she was registered to vote in New York. In an apparent attempt to establish that Snyder was a Florida resident at the time of the accident, McLeod's attorney took Snyder's deposition and subpoenaed records from Bell South, Brighthouse Networks, Progress Energy and Cranes Roost Village Apartments. However, McLeod never filed Snyder's deposition, nor any affidavit or other evidence to contradict the sworn statements in Snyder's affidavit. We agree with Snyder that, on this record, the trial court should have granted her motion to dismiss. First, the record establishes that Snyder was not a Florida resident. The issue of residency most often arises in divorce cases, because section 61.021, Florida Statutes, requires that one of the parties must reside in Florida for six months before a dissolution petition can be filed in Florida. The analysis in dissolution cases is therefore instructive. Under section 61.021, Florida residency is defined as "an actual presence in Florida coupled with an intention at that time to make Florida the residence." McCarthy v.

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Alexander, 786 So. 2d 1284, 1285-86 (Fla. 2d DCA 2001) (quoting Jenkins v. Jenkins, 556 So. 2d 441, 442 (Fla. 4th DCA 1990)). Thus, temporarily residing in Florida without a present intention to make Florida one's legal residence is not sufficient to establish Florida residency. E.g., Curran v. Curran, 362 So. 2d 1042 (Fla. 4th DCA 1978).2 Additionally, section 61.052(2) provides that proof of a valid Florida driver's license and voter registration may be used to corroborate the Florida residency requirement in section 61.021. See also Hunter v. Hunter, 736 So. 2d 801 (Fla. 1st DCA 1999). As explained in Keveloh v. Carter, 699 So. 2d 285 (Fla. 5th DCA 1997): A person may have several temporary local residences but can have only one legal residence. A legal residence or "domicile" is the place where a person has fixed an abode with the present intention of making it his or her permanent home. Once established, a domicile continues until it is superseded by a new one. A domicile is presumed to continue, and the burden of proof ordinarily rests on the party asserting the abandonment of one domicile to demonstrate the acquisition of another. A change of residence is accomplished and becomes effective when there is a good-faith intention to establish it, coupled with an actual physical move to the new residence, as evidenced by positive overt acts. Id. at 288 (citations omitted). Applying this law to the facts averred to by Snyder, it is clear that Snyder's temporary presence in Florida did not establish that she was a Florida resident. She averred that she had no intent to make Florida her residence, and attested to facts consistent with her claimed subjective intent

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