Third District Court of Appeal
State of Florida
Opinion filed March 22, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1388
Lower Tribunal No. 21-26040
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Ernesto J. Suarez,
Appellant,
vs.
Roberto Guzman,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Carlos Guzman, Judge.
Rodriguez Tramont & Nuñez, P.A., and Paulino A. Núñez, Jr. and
Frank R. Rodriguez, for appellant.
Martinez Morales, LLC, and Raul Morales and Angela Bousalis, for
appellee.
Before EMAS, LINDSEY and GORDO, JJ.
EMAS, J.
Ernesto Suarez, a resident of California, appeals an order denying his
motion to dismiss, for lack of personal jurisdiction, a one-count complaint
filed by Roberto Guzman seeking to partition an E*Trade investment account
held by Suarez and Guzman as joint tenants with right of survivorship.
Together with his motion to dismiss, Suarez filed an affidavit in which
he contested the complaint’s factual allegations of personal jurisdiction and
minimum contacts with the State of Florida. In response, Guzman filed an
affidavit supporting the jurisdictional allegations of his complaint which
conflicted with Suarez’s affidavit in material respects. Despite the existence
of these conflicting affidavits, the trial court did not conduct an evidentiary
hearing, instead denying the motion to dismiss without making any findings
relative to the issue of personal jurisdiction. 1 This was error. See, e.g.,
1
It appears that the trial court was persuaded by the arguments of plaintiff’s
counsel that it was unnecessary for the court to reach the personal
jurisdiction issue because the court could simply exercise in rem jurisdiction
instead. See Escudero v. Hasbun,
689 So. 2d 1144, 1146, n. 3 (Fla. 3d
DCA 1997) (noting “the rights of owners to property placed within the lower
court’s territorial borders may be adjudicated without regard to the residence
or presence of its owners”) (citing Harris & Co. Adv., Inc. v. Republic of Cuba,
127 So. 2d 687, 693 (Fla 3d DCA 1961) for the proposition that “deciding
personal jurisdiction of nonresident of state is not condition precedent for
maintenance of quasi-in-rem action”)). However, because the trial court
adjudicated and denied Suarez’s motion to dismiss, which was based on
personal jurisdiction, it necessarily determined “the jurisdiction of the
person.” Thus, this court has jurisdiction to review this nonfinal order, see
Fla. R. App. P. 9.130(a)(3)(C)i., and we hold the trial court erred in denying
the motion to dismiss for lack of personal jurisdiction in the absence of an
2
Bacinello v. Admiral Marine Surveyors LLC,
338 So. 3d 326, 329-30 (Fla. 3d
DCA 2022) (citing Tobacco Merchs. Ass’n of U.S. v. Broin,
657 So. 2d 939,
941-942 (Fla. 3d DCA 1995) (reaffirming that a defendant wishing to contest
personal jurisdiction must file a legally sufficient affidavit in support of his
position, shifting the burden to the plaintiff to prove the basis upon which
jurisdiction may be obtained. If the plaintiff files a counter-affidavit alleging
conflicting facts related to jurisdiction, and those affidavits cannot be
harmonized, the trial court should hold a limited evidentiary hearing to
resolve the disputed jurisdictional facts)).
Accordingly, we reverse the order on appeal and remand to the trial
court for further proceedings consistent with this opinion.
evidentiary hearing to resolve conflicting affidavits whose material
allegations could not be harmonized. On remand, should the trial court
determine it may exercise in rem jurisdiction over the property in question
without the need for personal jurisdiction over Suarez, it may of course enter
an order so finding and proceed accordingly. We express no opinion on the
merits of any such determination.
3
