Russo v. Fink

87 So. 3d 815, 2012 WL 1605456, 2012 Fla. App. LEXIS 7333
CourtDistrict Court of Appeal of Florida
DecidedMay 9, 2012
DocketNo. 4D11-2004
StatusPublished
Cited by12 cases

This text of 87 So. 3d 815 (Russo v. Fink) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russo v. Fink, 87 So. 3d 815, 2012 WL 1605456, 2012 Fla. App. LEXIS 7333 (Fla. Ct. App. 2012).

Opinion

DAMOORGIAN, J.

Appellant, Ellen Russo, appeals a non-final order granting Marilyn Fink’s motion to dismiss for lack of personal jurisdiction. We affirm.

By way of background, Russo, a Florida resident, filed a complaint against Leonard Fink and Marilyn Fink, residents of Nevada. The complaint set forth counts for conversion, civil theft pursuant to section 772.11, Florida Statutes, breach of fiduciary duty, and civil conspiracy against the Finks. The count for breach of fiduciary duty was against Leonard Fink alone, whereas the other counts were against Leonard and Marilyn Fink. As a basis for these counts, it alleged that Russo and her brother, Leonard, opened and maintained two joint accounts in Broward County, Florida, which were funded by monies received as a gift from their father Irving Fink. The siblings were to use the money for the benefit of their father for the remainder of his life, and were to distribute the remainder to themselves equally upon his death. The complaint then alleged that Leonard Fink closed the Florida ac[817]*817counts and took the proceeds without the permission or knowledge of Ellen Russo or their father. It further alleged that Leonard’s wife, Marilyn, was aware of Leonard’s actions and encouraged him to obtain the funds. Upon Irving’s death, Russo made several verbal demands on Leonard for her equal share of the sum on deposit, as well as a written demand upon both Leonard and Marilyn.

In response to the complaint, Marilyn Fink filed a motion to dismiss for lack of personal jurisdiction. The gravamen of the motion was that the complaint failed to demonstrate minimum contacts with the State of Florida to enable jurisdiction over her, or allege that she committed any of the activities described in Florida’s long arm statute — section 48.193, Florida Statutes (2010). The motion was supported by an affidavit in which Marilyn Fink stated, in relevant part, that: (1) she had no knowledge of or involvement with the withdrawal of the funds in question or their use thereafter; (2) she had no business contacts with Florida during the relevant period in time; and (3) she denied committing any tortious act in Florida, specifically the alleged conversion, civil theft, and civil conspiracy.

Russo responded by submitting a memorandum of law in opposition to the motion and corresponding counter-affidavit, asserting that Marilyn Fink was subject to the court’s jurisdiction by way of her commission of the torts of conversion, civil theft, and civil conspiracy, causing injury to Russo in Florida. It explained that the amounts withdrawn by Leonard were deposited into an account jointly owned by Marilyn and Leonard Fink.

The trial court allowed limited discovery to be conducted on the issue of personal jurisdiction before ruling on the motion. After a hearing and the submission of additional memoranda by the parties to support their respective positions, the trial court entered an order granting Marilyn Fink’s motion to dismiss. Although the trial court determined that the complaint alleged sufficient facts to bring the action within Florida’s long-arm statute, it dismissed the complaint against Marilyn Fink because her contacts with Florida were insufficient to satisfy constitutional due process requirements. While we agree with the trial court’s conclusion, we hold that the basis for the dismissal was incorrect. Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

We review 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).

Russo raises two issues on appeal relating to the second-prong of a personal jurisdiction analysis.1 However, we need not reach these two issues because we conclude the dismissal was proper under the first-prong of a personal jurisdiction analysis, i.e. the complaint failed to allege sufficient facts to bring the action within Florida’s long-arm statute.

In Joseph v. Chanin, 869 So.2d 738 (Fla. 4th DCA 2004), this Court recognized that:

Florida has established a two-prong test for determining jurisdiction over the [818]*818person. Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). The court must first determine whether the plaintiff alleged sufficient facts to comply with Florida’s long-arm statute, section 48.193, Florida Statutes (2001). Next, the court must determine if the defendant had sufficient minimum contacts with the State of Florida to satisfy due process.

Id. at 740. “Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant.” Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002).

Florida’s long-arm statute addresses both specific and general jurisdiction, granting specific jurisdiction over any person who commits a number of acts, including “[cjomitting a tortious act within this state.” § 48.193(l)(b), Fla. Stat. (2010). “[A] tort claim is deemed to have accrued where the last event necessary to make the defendant liable for the tort took place.” Merkin v. PCA Health Plans of Fla., Inc., 855 So.2d 137, 140 (Fla. 3d DCA 2003) (quoting Envases Venezolanos, S.A. v. Collazo, 559 So.2d 651, 652 (Fla. 3d DCA 1990)). Alternatively, in order for a court to have general jurisdiction over a defendant pursuant to section 48.193(2), Florida Statutes (2010), the defendant’s activity within Florida must be “substantial and not isolated activity,” which has been defined as “continuous and systematic.” See Woods v. Nova Cos. Belize Ltd., 739 So.2d 617, 620 (Fla. 4th DCA 1999)

With respect to the conversion, civil theft, and conspiracy counts, the amended complaint is devoid of allegations that Marilyn Fink committed any act or omission within Florida or agreed to any act with Leonard. Our review of the amended complaint leads us to conclude that the allegations failed to establish that Marilyn Fink committed the requisite tortious acts in Florida. The underlying allegations are based on the unilateral actions of Leonard Fink who was solely responsible for the withdrawal of his father’s funds from the joint account he maintained with Russo in Florida. Moreover, the complaint does not allege that Marilyn Fink took part in the withdrawal of the funds or that she was present in Florida when the act occurred.

Even assuming Marilyn Fink did play a role in controlling the funds after they left Florida, the relevant act for personal jurisdiction purposes with regard to the tort of conversion is the initial wrongful deprivation. See Merkin, 855 So.2d at 140 (holding that the tort of conversion accrues where a party exercises “wrongful dominion and control over the property to the detriment of the rights of its actual owner.”); Envases Venezolanos, S.A., 559 So.2d at 652 (Fla. 3d DCA 1990) (In the context of the depletion of a bank account in one jurisdiction and its transmission to another, that “wrongful act is necessarily deemed to have taken place where the defendant effects a withdrawal.... ”). Here, that deprivation took place in Florida without Marilyn Fink’s involvement as evidenced by the factual allegations in the complaint.

Turning to the count for civil theft, the applicable statute, section 772.11(1), Florida Statutes (2010), provides, in pertinent part,

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Bluebook (online)
87 So. 3d 815, 2012 WL 1605456, 2012 Fla. App. LEXIS 7333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russo-v-fink-fladistctapp-2012.