       Third District Court of Appeal
                               State of Florida

                           Opinion filed June 10, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-2975
                         Lower Tribunal No. 13-37522
                             ________________


Kingland Estates, Ltd,; Classic Investments, Ltd.; and Richard Cox,
                                   Appellants,

                                        vs.

 Kathleen Davis, Marjorie Ilma Knox, and the Marjorie Ilma Knox
                        Revocable Trust,
                                    Appellees.


     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Lisa S. Walsh, Judge.

      Holland & Knight, J. Raul Cosio, Christopher N. Bellows and Rebecca M.
Plasencia, for appellants.

      Nicholson & Eastin, LLP and Robert N. Nicholson, (Fort Lauderdale);
Broad and Cassel, Mark F. Raymond, Patricia M. Baloyra and Beverly Pohl, for
appellees.


Before SHEPHERD, C.J., and WELLS and SALTER, JJ.

     WELLS, J.
        Kingsland Estates Limited (“KEL”), Classic Investments Limited (KEL’s

majority shareholder), and Richard Cox (sole shareholder and managing director of

Classic and chairman and managing director of KEL) (collectively “the Barbados

defendants”)1, appeal from an order denying their motion to dismiss for lack of

personal jurisdiction. We reverse the order on appeal and remand with instructions

to dismiss the Barbados defendants from the instant action.

        Plaintiff Marjorie Ilma Knox, around whom this action centers, is a citizen

of Barbados currently living in Miami.2 This action has its genesis in the sale of

shares in a family owned company, KEL, which was formed in 1958 to hold title to

substantial acreage in Barbados. Beginning in 1992, members of Ms. Knox’s

family began to acquire other family members’ shares of stock in KEL and

ultimately in 2005, Classic purchased all but Ms. Knox’s remaining shares in KEL,

giving Classic control of the company.

        Since that time, Ms. Knox has filed a number of actions in Barbados and at

least one in Canada to secure a ruling that her remaining shares are worth more

than evidenced by KEL’s books and records.          In 2007, Ms. Knox created a


1Both KEL and Classic are Barbados corporations; Cox is a citizen and resident of
Barbados. Neither of these two corporations has any officers, directors, property,
bank accounts or other connections to Florida and Cox similarly has no
connections or property here.
2   Ms. Knox became a U.S. citizen in January of 2015.

                                          2
revocable trust funded by her shares of KEL stock. Her daughter, Kathleen I.

Davis, as trustee and as Ms. Knox’s attorney in fact, has now joined with Ms.

Knox in these efforts, filing an action in the probate division of the circuit court.

The instant action takes a new tack, this time claiming that the Barbados

defendants and two of Ms. Knox’s relatives, Iain Deane and Tess Rohmann—both

of whom sold their shares in KEL to Classic in 2007—have engaged in a criminal

enterprise to force her to divest her interest in KEL for less than its full value.

According to Ms. Knox and her daughter:

      Appellants participated in ‘a coordinated and systematic scheme . . . to
      intimidate, threaten, defame, and extort Mrs. Marjorie Knox and the
      other Plaintiffs . . .’ with the objective ‘to force Mrs. Knox and/or the .
      . . Trust . . . to sell highly valuable real estate holdings in . . [KEL] for
      far below market value. . . .’ ‘[This] coordinated scheme evolved in
      or around the year 2007 from a scheme of obfuscation,
      misinformation, and false accounting, to become a racketeering
      enterprise that began employing threats, harassment, and intimidation
      directed into the United States, all designed to forcibly divest Mrs.
      Knox and/or the Knox Trust of its interest in KEL . . . .’

      The complaint asserts four specific instances in which members of this

enterprise purportedly acted in Florida in furtherance of their scheme:

    posting of anonymous threats and defamatory statements on a blog created
     and controlled by Kathleen here in Miami, Florida;

    delivering “false financial” records to Ms. Knox in Miami, Florida;

    giving perjured testimony in connection with “a civil court proceeding in
     Miami”; and



                                           3
    tampering with “potential witnesses in Miami.”

      The complaint asserts five causes of action. Count I seeks relief under

section 895.03 of the Florida Statutes (Florida’s RICO statute); Count II seeks

relief under section 895.03(4) (for RICO conspiracy); Count III claims intentional

infliction of severe emotional distress; Count IV claims defamation; and Count V

claims a conspiracy. Jurisdiction over the Barbados defendants is invoked under

section 48.193, Florida’s long arm statute on a claim that based on the

aforementioned acts these defendants committed these crimes and torts in the state

of Florida.

      The Barbados defendants moved to dismiss the action against them and

supported that motion with the affidavit of Richard Cox. The court below denied

the motion to dismiss concluding that the complaint satisfied the initial pleading

requirements of section 48.193 of the Florida Statutes and that the Barbados

defendants’ affidavit did not directly contest the factual allegations in the

complaint with respect to long arm jurisdiction or minimum contacts. We review

this matter de novo, and reverse. See Wendt v. Horowitz, 822 So. 2d 1252, 1256

(Fla. 2002) (“This Court must conduct a de novo review of a trial court’s ruling on

a motion to dismiss for lack of personal jurisdiction.”); accord Edwards v. Airline

Support Group, Inc., 138 So. 3d 1209, 1211 (Fla. 4th DCA 2014); Swanky Apps,

LLC v. Roony Invest & Fin., S.A., 126 So. 3d 336, 338 (Fla. 3d DCA 2013);



                                        4
Extendicare, Inc. v. Estate of McGillen, 957 So. 2d 58, 63 (Fla. 5th DCA 2007);

Dev. Corp. of Palm Beach v. WBC Constr., L.L.C., 925 So. 2d 1156, 1160 (Fla.

4th DCA 2006).

       By each count of their complaint, Ms. Knox and her daughter sought to

secure jurisdiction over the Barbados defendants under section 48.193, which in

pertinent part provides:

      A person, whether or not a citizen or resident of this state, who
      personally or through an agent does any of the acts enumerated in this
      subsection thereby submits himself or herself . . . to the jurisdiction of
      the courts of this state for any cause of action arising from any of the
      following acts:

             ....

             2. Committing a tortious act within this state.

§ 48.193(1)(a)2., Fla. Stat. (2014).

      In Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989), the

Florida Supreme Court articulated a two-step analysis to determine whether

personal jurisdiction exists over a nonresident defendant under section 48.193 of

the Florida Statutes. “A court first must determine whether the complaint alleges

sufficient jurisdictional facts to bring the action within the ambit of our long-arm

statute. A court then must determine whether sufficient minimum contacts exist

between our forum state and the defendant to satisfy the Fourteenth Amendment’s

due process requirements—in short, whether a nonresident defendant ‘should



                                          5
reasonably anticipate being haled into court’ in Florida.” Acquadro v. Bergeron,

851 So. 2d 665, 669 n.9 (Fla. 2003) (quoting Doe v. Thompson, 620 So. 2d 1004,

1005 (Fla. 1993)); see Rollet v. de Bizemont, 159 So. 3d 351, 356 (Fla. 3d DCA

2015) (“In Florida, ‘both parts [of the personal jurisdicition test] must be satisfied

for a court to exercise personal jurisdiction over a non-resident defendant.’

Hampton Island Pres., LLC v. Club & Cmty. Corp., 998 So. 2d 665, 667 (Fla. 4th

DCA 2009) (quoting Am. Fin. Trading Corp. v. Bauer, 828 So. 2d 1071, 1074 (Fla.

4th DCA 2002)).”). With regard to the Barbados defendants, neither prong of the

Venatian Salami analysis was met.

        Here, all five counts of the complaint are predicated on the same

jurisdictional facts:    that some unidentified and unknown individuals made

threatening, defamatory statements on a blog maintained in Miami by Ms. Knox’s

daughter; that the defendants, which would include the Barbados defendants, sent

false financial statements to Ms. Knox in Florida; and that the defendants, which

would include the Barbados defendants, committed perjury in an action pending in

Miami when Tess Rohmann “lied under oath regarding numerous issues, including

the price per share at which she had sold her KEL shares.”

        First and most obviously, Count III claiming intentional infliction of

emotional distress3 and Count IV claiming defamation4 fail to allege any

3   See Winter Haven Hosp., Inc. v. Liles, 148 So. 3d 507, 515 (Fla. 2d DCA 2014):


                                          6
jurisdictional facts that would bring this action within the ambit of Florida’s long-

arm jurisdiction statute. See Thorpe v. Gelbwaks, 953 So. 2d 606, 609 (Fla. 5th

DCA 2007) (“First, it must be determined that the complaint alleges sufficient

jurisdictional facts to bring the action within the ambit of Florida’s long-arm

jurisdiction statute.”); Gerber Trade Fin., Inc. v. Bayou Dock Seafood Co., 917 So.

2d 964, 966 (Fla. 3d DCA 2005) (same). As the Florida Supreme Court has

explained, a defendant, like the Barbados defendants, need not be physically

present in Florida to commit a tortious act here but may commit a tortious act in

Florida for purposes of section 48.193(1)(a)2,5 through “telephonic, electronic, or

      The elements of the tort of [outrage] are:

      (1) The wrongdoer’s conduct was intentional or reckless, that is, he
          intended his behavior when he knew or should have known that
          emotional distress would likely result;

      (2) the conduct was outrageous, that is, as to go beyond all bounds of
          decency, and to be regarded as odious and utterly intolerable in a
          civilized community;

      (3) the conduct caused emotion[al] distress; and

      (4) the emotional distress was severe.
4 See NITV, L.L.C. v. Baker, 61 So. 3d 1249, 1252 (Fla. 4th DCA 2011) (“‘To
establish a cause of action for defamation, a plaintiff must show that (1) the
defendant published a false statement about the plaintiff, (2) to a third party, and
(3) the falsity of the statement caused injury to the plaintiff.’ Razner v. Wellington
Reg’l Med. Ctr., Inc., 837 So. 2d 437, 442 (Fla. 4th DCA 2002) (citing Valencia v.
Citibank Int’l., 728 So. 2d 330, 330 (Fla. 3d DCA 1999)).”).
5 Acquadro, 851 So. 2d at 670, cites to section 48.193(1)(b), “committing a tortious

act within this State,” however that section has since been renumbered, and now

                                          7
written communications into Florida.” Acquadro, 851 So. 2d at 670; see Wendt,

822 So. 2d at 1253; Swanky Apps, LLC, 126 So. 3d at 339. However, in this case,

the complaint and the affidavits attached to and incorporated into it, concede that

after years of effort, plaintiffs have been unable to identify the defendants as the

individuals who posted the offending defamatory statements that form the basis for

the claims asserted in Counts III and IV. Moreover, the affidavit submitted by Cox

on behalf of the Barbados defendants affirmatively states that they were not

involved in the conduct alleged.6 This evidence was wholly unrefuted. Thus, as to

section 48.193(1)(a)2 contains that same language.
6   Cox’s affidavit provided in part:

         25. I have never posted any comment on any internet blog in Florida
         or anywhere in the world, at any time, including concerning any of the
         Plaintiffs or their family members or the ownership of KEL shares.

         26. I have never endorsed, directed, instructed, conspired with or
         agreed with any agent, independent contractor, co-Defendant, or any
         other individual or entity to send any comment or blog, including any
         defamatory, threatening, violent, or otherwise inappropriate posting to
         any internet blog in Florida or anywhere in the world, at any time,
         including concerning any of the Plaintiffs or their family members or
         the ownership of KEL shares or otherwise.

         27. I have no knowledge of whom the “John Does” named in the
         Complaint are, where they might be located, why they have posted
         comments on internet blogs, or from where these comments were
         posted.

         28. I have never met with, made a phone call to, or sent a
         communication via regular or electronic mail to any individual or
         entity or John Doe in the State of Florida or anywhere else in the

                                           8
Counts III and IV, the established jurisdictional facts are insufficient to bring this

action within the ambit of the long-arm statute.

        The same result obtains for the remaining three counts of the complaint—

Count     I claiming violation of section 895.03(1), (2), and (3) of the Florida

Statutes—Florida’s RICO act7; Count II claiming violation of section 895.03(4) of

        world, at any time, to engage in any plan, scheme, or action to defame
        or threaten Plaintiffs through websites, internet blogs, or the posting
        of comments on such websites or internet blogs or otherwise.
7 See de la Osa v. State, 158 So. 3d 712, 721-22 (Fla. 4th DCA 2015), which
explains:

          Section 895.03(3), Florida Statutes (2003), the substantive RICO
        charge . . . provides:

              (3) It is unlawful for any person employed by, or
              associated with, any enterprise to conduct or participate,
              directly or indirectly, in such enterprise through a pattern
              of racketeering activity or the collection of an unlawful
              debt.

           Section 895.02, Florida Statutes (2003), defines the terms contained
        in section 895.03(3) and (4):

              • “Racketeering activity” means “to commit, to attempt
              to commit, to conspire to commit, or to solicit, coerce, or
              intimidate another person to commit” any crime
              chargeable by indictment or information under
              specifically enumerated criminal statutes. § 895.02(1),
              Fla. Stat. (2003).

              • An “enterprise” is defined, in relevant part, as “any ...
              group of individuals associated in fact although not a
              legal entity.” § 895.02(3), Fla. Stat. (2003).


                                           9
the Florida Statutes—RICO conspiracy provision8; and Count IV claiming the

             • A “pattern of racketeering activity” is defined as
             “engaging in at least two incidents of racketeering
             conduct that have the same or similar intents, results,
             accomplices, victims, or methods of commission or that
             otherwise      are    interrelated    by     distinguishing
             characteristics and are not isolated incidents, provided at
             least one of such incidents occurred after the effective
             date of this act and that the last of such incidents
             occurred within 5 years after a prior incident of
             racketeering conduct.” § 895.02(4), Fla. Stat. (2003).

         The statute implicated in [a] conspiracy to commit RICO charge . .
      . provides:

             (4) It is unlawful for any person to conspire or endeavor
             to violate any of the provisions of ... subsection (3).

             § 895.03(4), Fla. Stat. (2003).

         [An] organized scheme to defraud charge . . . involves section
      817.034(4)(a) 1., Florida Statutes (2003), which provides that “[a]ny
      person who engages in a scheme to defraud and obtains property
      thereby is guilty of organized fraud,” punishable as a first degree
      felony if the amount of property obtained has “an aggregate value of
      $50,000 or more.” The statute defines certain terms:

             • “Scheme to defraud” is defined as “a systematic,
             ongoing course of conduct with intent to defraud one or
             more persons, or with intent to obtain property from one
             or more persons by false or fraudulent pretenses,
             representations, or promises or willful misrepresentations
             of a future act.” § 817.034(3)(d), Fla. Stat. (2003).

(Footnote omitted).
8See § 895.03(4), Fla. Stat. (2014) (making it illegal to conspire to violate sections
895.03(1), (2), or (3)).


                                         10
existence of a conspiracy.9,   10   These three counts rely on the same factual

predicate claiming that the Barbados defendants engaged in a conspiracy and a

pattern of racketeering by:

      a. making defamatory and threatening posts on the daughter’s blog in
         violation of sections 836.05, 836.10, 895.02 of the Florida Statutes;

      b. making false entries in the books of a corporation (KEL) in
         violation of sections 817.034, 817.15, and 895.02(2) of the Florida
         Statutes;

      c. suborning perjury and obstructing justice in violation of sections
         837.02 and 892.02(2) of the Florida Statutes;

      d. tampering with, harassing, or retaliating against a witness, victim,
         or informant in violation of sections 914.22 and 895.02 of the
         Florida Statutes; and,

      e. cyberstalking and exploiting an elderly person in violation of
         sections 784.048 and 825.103 of the Florida Statutes.

      Reduced, if possible, to their essence, these claims allege that the Barbados

defendants and a number of unidentified others conspired to deprive Ms. Knox of


9See Olesen v. Gen. Elec. Capital Corp., 135 So. 3d 389, 398-99 (Fla. 5th DCA
2014) (“Civil conspiracy consists of the following elements: ‘(a) a conspiracy
between two or more parties, (b) to do an unlawful act or to do a lawful act by
unlawful means, (c) the doing of some overt act in pursuance of the conspiracy,
and (d) damage to plaintiff as a result of the acts performed pursuant to the
conspiracy.’” (quoting Walters v. Blankenship, 931 So. 2d 137, 140 (Fla. 5th DCA
2006))).
10  In Count V, plaintiffs repeat their assertions that Ms. Knox had been
threatened—again, behavior plaintiffs conceded could not be positively attributed
to any of the defendants.


                                        11
the true value of her shares in KEL, and engaged in an enterprise to accomplish

this goal by (1) anonymously making threatening posts to a Miami blog which

defamed Ms. Knox and so threatened her that she was unable to appear in

Barbados as a witness in proceedings pending there; (2) mailing several

purportedly “false and fraudulent accounting records to Marjorie Knox . . . at her

present address in Miami, Florida thereby devaluing her KEL stock”; and, (3)

suborning purportedly perjured testimony in another case pending in a Florida

court as to the price one of Knox’s relatives had received for her KEL shares.11, 12

      As with Counts III and IV, these allegations are insufficient to support

personal jurisdiction under Florida’s long-arm statute over the Barbados

defendants. As already stated and as the complaint and its attachments concede,

after years of trying, plaintiffs have been unable to tie any of the offending blog-

posts to anyone much less to the Barbados defendants so as to bring the Barbados


11 See Cohen v. State, 985 So. 2d 1207, 1209 (Fla. 3d DCA 2008) (“[S]tatements
alleged to be perjurious must be of ‘empirical fact’ and not of opinion, belief or
perception. See Vargas v. State, 795 So. 2d 270, 274 (Fla. 3d DCA 2001). One of
the essential elements of perjury in official proceedings is that the person making
the statement does not believe it to be true. Id. at 272. The elements of perjury in
official proceedings are: 1) making a false statement, 2) which one does not
believe to be true, 3) under oath in an official proceeding, 4) in regard to any
material matter. See § 837.02(1), Fla. Stat. (1999).”).
12 The plaintiffs also alleged defendant Deane had “lied under oath in a proceeding
in Barbados” concerning the sale price of his stock shares; however, this claim can
certainly in no way support the conclusion that a Florida court could assert
personal jurisdiction over the Barbados defendants.

                                         12
defendants within the jurisdiction of Florida’s courts. With regard to the purported

false entries or fraud related to KEL’s annual statements, the allegations consist of

no more than an accusation that miscellaneous information was not included in the

audited annual financial statements and a wholly conclusory statement that as a

consequence of the failure to include this information the statements were “false

and fraudulent”:

      More specifically, the Defendants have caused KEL to send (and
      continue to send) false and fraudulent accounting records to Marjorie
      Knox via Federal Express at her present address in Miami, Florida.
      For example:

             a. In March 2010, KEL sent by FedEx false “Audited
             Financials” of KEL which included the following
             falsehoods, among others: that the financials had been
             properly audited by a duly appointed auditor; the
             financials omitted material information regarding and
             [sic] any reference to the indemnification; the financials
             failed to reflect transactions and pending agreements; and
             the financials failed to account for accruing amounts due.

These allegations do not state facts that demonstrate that either a false statement

was made or that a fraud has been perpetrated and will not support either a

conspiracy claim or RICO claim much less personal jurisdiction under Florida’s

long-arm statute. See Salazar v. HSBC Bank, USA, NA, 158 So. 3d 699, 702 n.4

(Fla. 3d DCA 2015) (“Salazar’s claim that he had been trying to renegotiate his

loan and that HSBC had represented that it would be worked out fails to state a

claim under any of these grounds including a claim of misrepresentation or fraud.



                                         13
See Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010) (holding that the essential

elements of fraudulent misrepresentation are: (1) a false statement concerning a

material fact; (2) made with the representor’s knowledge that the statement is false;

(3) made with the intention that the representation induce another to act on it; and

(4) consequent injury by the party acting in reliance on the representation); Cady v.

Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988)

(confirming that ‘allegations that certain representations made were false without

designating which ones were false and who made them does not constitute an

acceptable pleading of a defense based upon false misrepresentation’); see also

Parra de Rey v. Rey, 114 So. 3d 371, 386 (Fla. 3d DCA 2013)(confirming that

fraud must be pled with particularity and must specifically identify

misrepresentations or omissions of fact, as well as the time, place or manner in

which they were made).”).

       Similarly, no facts were alleged to establish perjury or that the purported

perjurer conspired with or agreed to engage in a criminal enterprise with the

Barbados defendants. The allegations as to this “claim” is that one of Knox’s

relatives lied “in a proceeding in Barbados regarding the sales price of his shares in

KEL.” Since this purportedly happened in Barbados, we fail to see how this

subjects the Barbados defendants to jurisdiction in Florida. The complaint also

alleges that in 2010 in an action pending in the probate division of the circuit court,



                                          14
one of Knox’s relatives, Tess Rohmann, “a former shareholder in KEL,” also “lied

under oath regarding . . . the price per share at which she had sold her KEL shares.

Specifically, Mrs. Rohmann claimed that she sold her shares in KEL at a deflated

value of $857,100” when in fact she “actually sold her shares for approximately

$1.5 million.” The problem with these “facts” is that none of the KEL defendants

was a party to that action and they successfully fought any claim of jurisdiction

over them in that case. The complaint also confirms that Ms. Rohmann is no

longer a shareholder of KEL and there are no facts alleged to show (1) that Ms.

Rohmann has or at the time of her testimony had any interest, direct or indirect, in

either KEL or any of the Barbados defendants; (2) that Ms. Rohmann entered into

any agreement—that is conspired—with KEL or any Barbados defendant for any

purpose; or (3) that Ms. Rohmann agreed to engage in any scheme or enterprise

with KEL or any Barbados defendant for any purpose. Again, no facts were

alleged with regard to a purported perjury that would support any of the claims

alleged much less long-arm jurisdiction over these foreign defendants.

      In sum, we find plaintiffs’ complaint does not allege sufficient jurisdictional

facts to bring any claim, and thus, this action within the ambit of our long-arm

statute nor does it demonstrate that sufficient minimum contacts exist between

Florida and the Barbados defendants to satisfy the Fourteenth Amendment’s due

process requirements. In fact, nothing was claimed in the complaint which would



                                        15
make the Barbados defendants reasonably anticipate being haled into a Florida

court. See Rollet, 159 So. 3d at 356; Carlyle v. Palm Beach Holdings, Inc., 842

So. 2d 1013, 1017 (Fla. 4th DCA 2003) (“Appellant has also raised issues as to

whether any of the alleged torts are actionable and whether the appellees have met

their burden to show appellant had sufficient minimal contacts with Florida to

satisfy constitutional due process requirements. Our disposition of this appeal on

the connexity issue makes it unnecessary for us to decide these other issues.”).

Moreover, the KEL defendants’ affidavit controverted the jurisdictional allegations

of the complaint and was not rebutted by the plaintiffs below.

      Accordingly, the order denying defendants’ motion to dismiss is reversed

and the cause is remanded to the trial court with direction to enter an order granting

the Barbados defendants’ motion to dismiss.13




13 Our conclusion makes it unnecessary to consider the defendants’ alternative
argument that the case should have been dismissed on forum non conveniens
grounds.

                                         16
