       Third District Court of Appeal
                               State of Florida

                            Opinion filed May 4, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1233
                          Lower Tribunal No. 12-6263
                             ________________


                             Leopoldo Castillo,
                                    Appellant,

                                        vs.

                   Concepto Uno of Miami, Inc., etc.,
                                    Appellee.



     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, John Schlesinger, Judge.

     Arnstein & Lehr, Hilda Piloto and Susan E. Trench, for appellant.

     Edwards & Clarkson, June M. Clarkson and Theresa B. Edwards (Fort
Lauderdale), for appellee.

Before WELLS, EMAS and LOGUE, JJ.

     EMAS, J.
      INTRODUCTION

      Leopoldo Castillo appeals the trial court’s nonfinal order denying his motion

to dismiss a verified amended complaint for lack of personal jurisdiction. Because

a valid dispute exists over the facts in support of personal jurisdiction, and the

sworn proof provided by the parties in support of their respective positions cannot

be reconciled, we reverse and remand for the trial court to conduct a limited

evidentiary hearing to resolve the disputed jurisdictional facts.

      FACTS

      In March 2012, Concepto Uno of Miami, Inc. filed a verified complaint in

Miami-Dade County against Castillo and his wife, Gilda de Castillo, alleging, inter

alia, breach of four different written contracts for interior design services on

several properties, none of which are located in Florida.1 Following dismissal of

the original verified complaint, Concepto Uno filed a “verified”2 amended

complaint, alleging Castillo “resides in. . . Boca Raton, Florida, and owns property

and does business in Miami-Dade County and is otherwise sui juris.”                 The

amended complaint alleged that “[a]ll contracts were entered into and were due



1 The properties are located in New York, France and Venezuela.
2  Although this amended complaint was titled “verified,” it was not actually
verified by anyone. However, the original complaint, which was dismissed by the
trial court for failure to attach translated versions of the four contracts, was verified
and contained the same jurisdictional allegations as the amended complaint.

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and payable in Miami-Dade County, Florida.” Attached to the complaint were the

four contracts, only one of which purports to bear the signature of Castillo.

      Castillo moved to dismiss the “verified” amended complaint for lack of

personal jurisdiction. Attached to the motion to dismiss was Castillo’s affidavit, in

which he averred that he:

      ● Has resided in the Dominican Republic since 2012, and prior to that in
      Venezuela;
      ● Is not a resident of Florida or of any state in the United States;

      ● Has never lived in Miami-Dade County;

      ● Owns a 1% interest in a property located in Boca Raton; and

      ● Did not execute any of the four contracts attached to the amended
      complaint.
      Concepto Uno filed no affidavit or other sworn proof in response to

Castillo’s motion to dismiss. A hearing was held on the motion to dismiss, at

which no evidence was offered or testimony taken. Though Concepto Uno filed no

written response to the motion to dismiss, it argued at the hearing that the court did

have personal jurisdiction over Castillo because he signed one of the contracts in

Miami. The court did not issue a ruling at the hearing, but later rendered an order

which simply denied Castillo’s motion to dismiss without elaboration. This appeal

followed.




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      ANALYSIS

      We review de novo the trial court’s ruling on a motion to dismiss for lack of

personal jurisdiction. Wendt v. Horowitz, 822 So. 2d 1252, 1256 (Fla. 2002). In

Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), the Florida

Supreme Court set forth a two-prong test to be applied by Florida trial courts in

determining whether personal jurisdiction may properly be exercised over a

defendant.    First, the court must determine whether “the complaint alleges

sufficient jurisdictional facts to bring the action within the ambit of” Florida’s

long-arm statute, section 48.193, Florida Statutes (2015). Id. at 502. Second, if the

complaint does allege sufficient jurisdictional facts, “the next inquiry is whether

sufficient ‘minimum contacts’ are demonstrated to satisfy due process

requirements.”    Id.   “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.”

Id. Where the affidavits cannot be reconciled, the trial court is required to hold a

limited evidentiary hearing to determine the jurisdictional issue. Id. at 503.

      In this case, Castillo filed an affidavit contesting Concepto Uno’s

jurisdictional allegations in the complaint, but Concepto Uno filed no subsequent

affidavit in response and presented no other evidence in support of those



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allegations. Castillo argues that dismissal was therefore required. See Rollet v.

Bizemont, 159 So. 3d 351, 356 (holding that once the burden shifts to the plaintiff,

“‘if no such sworn proof is forthcoming from the plaintiff as to the basis for

jurisdiction, the trial court must grant the defendant’s motion to dismiss.’”

(quoting Tobacco Merchants Ass’n of U.S. v. Broin, 657 So. 2d 939, 941 (Fla. 3d

DCA 1995))). However, this court has previously held that “[o]ther competent

sworn proof, such as depositions, a verified complaint or documents, may

substitute for the affidavit to support the parties’ allegations as to jurisdiction.”

Broin, 657 So. 2d at 941 n. 3.

      The same jurisdictional allegations in the unverified amended complaint had

been set forth in the original verified complaint. Although that complaint was

dismissed, the verified complaint and the jurisdictional allegations contained

therein were legally sufficient to serve as the sworn proof in support of Concepto

Uno’s allegations as to personal jurisdiction of Castillo.

      Given that the jurisdictional allegations in Castillo’s affidavit and the

jurisdictional allegations in Concepto Uno’s sworn proof could not be reconciled,

the court should not have denied the motion, but rather should have conducted an

evidentiary hearing to resolve the disputed jurisdictional facts.

      Therefore, we reverse and remand for the trial court to conduct a limited

evidentiary hearing to resolve the disputed facts relating to personal jurisdiction



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and for further proceedings consistent with this opinion. See Broin, 657 So. 2d at

941 (holding that if the plaintiff raises conflicting facts, the trial court should hold

a limited evidentiary hearing to resolve any disputed facts relating to jurisdiction.)

      Reversed and remanded with directions.




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