Third District Court of Appeal
State of Florida
Opinion filed April 14, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0942
Lower Tribunal No. 11-29169
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Team Health Holdings Inc.,
Appellant,
vs.
Lizette C. Caceres, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, David C. Miller, Judge.
Nelson Mullins Broad and Cassel, and Peter R. Goldman, Linda
Spaulding White, and Nicole Villamar (Ft. Lauderdale), for appellant.
John B. Ostrow, P.A., and John B. Ostrow; Wasson & Associates,
Chartered, and Roy D. Wasson and Annabel C. Majewski, for appellees.
Before FERNANDEZ, LINDSEY, and GORDO, JJ.
LINDSEY, J.
Team Health Holdings (“THH”), a Delaware Corporation with its
principal place of business in Tennessee, appeals from a non-final order
denying its motion to dismiss the Plaintiffs’ Sixth Amended Complaint for lack
of personal jurisdiction. 1 Because THH was not required to attach business
records to its jurisdictional affidavit, we reverse and remand for further
proceedings.
I. BACKGROUND
Plaintiffs 2 filed the underlying medical malpractice action in 2011.
Seven years later, Plaintiffs, in their Fifth Amended Complaint, added THH
under a theory of corporate successor liability. THH moved to dismiss and
attached an affidavit of John Stair, THH’s Chief Operations Counsel and
Assistant Secretary. The trial court granted THH’s motion and granted
Plaintiffs leave to amend their Complaint.
Plaintiffs then filed their Sixth Amended Complaint, which is the
operative complaint. THH again moved to dismiss and attached the original
Stair affidavit and a supplement to the Stair affidavit. The Stair affidavits
contested personal jurisdiction based on Stair’s personal knowledge as
1
We have jurisdiction pursuant to Florida Rule of Appellate Procedure
9.130(3)(C)(i).
2
Plaintiffs are Lizette Caceres; her husband, Rodrigo Caceres; and their two
minor children.
2
Chief Operations Counsel and Assistant Secretary and his review of THH’s
books and records. In their response, Plaintiffs argued that any personal
knowledge gained by Stair from his review of the books and records was
inadmissible hearsay.
At a non-evidentiary hearing on THH’s motion to dismiss, the trial court
agreed with Plaintiffs and found the Stair affidavits legally insufficient:
I don’t think the affidavit is sufficient. I think there’s a
lot of case law saying – it mostly comes up in the
foreclosure world a lot, where these affidavits get
submitted based on their records, without submitting
them; and so I’m going to find the affidavit
insufficient.
After finding the Stair affidavits legally insufficient, the court denied THH’s
motion to dismiss. THH timely appealed.
II. ANALYSIS
A trial court’s ruling on a motion to dismiss for lack of personal
jurisdiction is reviewed de novo. Castillo v. Concepto Uno of Miami, Inc.,
193
So. 3d 57, 59 (Fla. 3d DCA 2016) (citing Wendt v. Horowitz,
822 So. 2d 1252,
1256 (Fla.2002)).
The established procedure in Florida for determining whether a court
may exercise personal jurisdiction is set forth in Venetian Salami Co. v.
Parthenais,
554 So. 2d 499 (Fla.1989). As this Court recently explained:
3
Initially, the plaintiff bears the burden of pleading
sufficient jurisdictional facts to fall within the long-arm
statute. Venetian Salami, 554 So. 2d at 502. “If the
allegations in the complaint sufficiently establish
long-arm jurisdiction, then the burden shifts to the
defendant to contest the jurisdictional allegations in
the complaint, or to claim that the federal minimum
contacts requirement is not met, by way of affidavit
or other similar sworn proof.” Belz Investco Ltd.
P’ship v. Groupo Immobiliano Cababie, S.A.,
721 So.
2d 787, 789 (Fla. 3d DCA 1998) (citing Venetian
Salami, 554 So. 2d at 502; Field v. Koufas,
701 So.
2d 612 (Fla. 2d DCA 1997)). “If properly contested,
the burden then returns to the plaintiff to refute the
evidence submitted by the defendant, also by
affidavit or similar sworn proof.”
Id. If the parties’
sworn proof is in conflict, “the trial court must conduct
a limited evidentiary hearing to resolve the factual
dispute.”
Id.
Meyer Werft GMBH & Co., KG v. Humain,
305 So. 3d 657, 660 (Fla. 3d DCA
2020) (quoting Fincantieri-Cantieri Navali Italiani S.p.A. v. Yuzwa,
241 So.
3d 938, 941-42 (Fla. 3d DCA 2018)).
On appeal, Plaintiffs concede that “Mr. Stair disputed all jurisdictional
allegations.” However, Plaintiffs maintain that the Stair affidavits are legally
insufficient because the books and records that formed the basis of Stair’s
personal knowledge were not attached to the affidavits. Consequently,
Plaintiffs contend the burden has not shifted to them to prove their
jurisdictional allegations. We disagree.
4
“To be legally sufficient, 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.” Hilltopper Holding Corp. v. Estate of Cutchin
ex rel. Engle,
955 So. 2d 598, 601 (Fla. 2d DCA 2007) (citing Acquadro v.
Bergeron,
851 So. 2d 665, 672 (Fla. 2003); Capital One Fin. Corp. v. Miller,
709 So. 2d 639, 640 (Fla. 2d DCA 1998)).
Here, it is undisputed THH submitted sworn proof contesting the
jurisdictional allegations in the operative complaint. At this point, the
allegations in the affidavit, or other sworn proof, are to be taken as true. See
Acquadro,
851 So. 2d at 672 (“In order to prevail on a motion to dismiss, a
defendant must file an affidavit containing allegations, which if taken as true,
show that the defendant’s conduct does not make him or her amenable to
service.”). The burden then returns to Plaintiffs to prove by sworn proof of
their own “the basis upon which jurisdiction may be obtained.” Venetian
Salami Co., 554 So. 2d at 502. If the affidavits can be harmonized, the trial
court will be in a position to make a decision based on undisputed facts. Id.
However, if the affidavits are in conflict, the trial court should hold an
evidentiary hearing in order to determine the jurisdictional issue. Id. at 503.
In other words, it is at this point that evidentiary disputes are resolved.
5
Because the trial court did not follow the procedure set forth in Venetian
Salami, we reverse and remand for further proceedings.
Reversed and remanded.
6
