        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                  SOUTHERN WALL PRODUCTS, INC.,
                            Appellant,

                                      v.

           STEVEN E. BOLIN and DEBORAH BOLIN, his wife.

                                 Appellees.

                               No. 4D18-875

                              [July 25, 2018]

                          CORRECTED OPINION

   Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Martin J. Bidwill, Judge; L.T. Case No.
17-018220CA27.

   Walter G. Latimer, Bruno Renda and Noor Fawzy of McGivney, Kluger
& Cook, P.C., Fort Lauderdale, for appellant.

  Rebecca S. Vinocur of Rebecca S. Vinocur, P.A., Coral Gables, for
appellees.

WARNER, J.

   Southern Wall Products appeals the trial court’s order denying its
motion to dismiss for lack of personal jurisdiction in this products liability
action. Because the record shows the lack of minimum contacts to
support specific personal jurisdiction, we reverse.

   The appellees, Steven and Deborah Bolin, filed a 2017 products liability
lawsuit in Broward Circuit Court against multiple defendants, including
SWP. They alleged in their amended complaint that Steven Bolin was
exposed to asbestos-containing products over a period of years, between
1969 and 1981, at numerous job sites in Florida. They claimed that as a
result, he contracted mesothelioma.

   In their complaint, they alleged jurisdiction against all defendants
based on numerous allegations of conducting business in Florida,
including that: 1) the defendants conducted business or had offices within
the state; 2) the plaintiffs’ cause of action arose out of the defendants’
business ventures within the state; 3) the defendants’ asbestos-containing
materials were sold in Florida and Steven Bolin used them in Florida; 4)
the defendants engaged in nationwide marketing and specifically targeted
Florida for their asbestos-containing products; 5) the defendants
conducted substantial and not isolated activities within the state; and 6)
the defendants maintained agents for service of process within the state.
The plaintiffs also alleged that the defendants received substantial
revenues from the sale of products in Florida at all times material to the
cause of action.

   Specific to SWP, the complaint stated that Steven Bolin was exposed to
a joint compound in Florida from SWP in 1975-1977 while working as a
laborer or construction worker for a company in Clearwater, Florida.

    SWP moved to dismiss for lack of personal jurisdiction. It attached an
affidavit of its bookkeeper, averring that SWP, a corporation with its
principal place of business in Tucker, Georgia, had never maintained any
office or physical presence in Florida, and that neither did its predecessor,
Ruco of Atlanta, Inc., also a Georgia corporation. During the 1970s,
Ruco’s sales were centralized in Georgia, and neither SWP nor Ruco
marketed or sold any product in Florida.

    To counter the motion to dismiss, the Bolins filed a response, quoting
from Steven Bolin’s deposition that he had used an asbestos-containing
joint compound in 1977 while working as a laborer and that one of them
was named Ruco. The response also quoted from a deposition of Richard
Whitcomb for SWP, who said SWP was currently distributing its product
in Florida at the time of his deposition, which was in 2017. Approximately
twenty percent of SWP’s sales are made in Florida. The Bolins argued that
SWP had continuous contacts and sales in Florida of asbestos-containing
products and that SWP is subject to specific personal jurisdiction
pursuant to section 48.193, Florida Statutes (2014).

    The trial court held a non-evidentiary hearing on the motion to dismiss.
Counsel for the Bolins declared that they were alleging specific personal
jurisdiction against SWP, not general jurisdiction. The court questioned
whether the fact that SWP was doing business in Florida at the time of the
hearing, decades after the exposure, would support finding personal
jurisdiction over SWP now. SWP objected, arguing that at the time of the
alleged Florida exposure, SWP did not do business in Florida. The trial


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court entered an order denying the motion to dismiss, prompting this
appeal.

    For a Florida court to have jurisdiction over a defendant under the long-
arm statute, courts must apply a two-prong analysis. Venetian Salami Co.
v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989). The court first determines
whether the facts as pleaded were sufficient to support personal
jurisdiction under the long-arm statute, section 48.193, Florida Statutes.
Id. Secondly, if the first requirement is met, it determines “whether the
federal constitutional due process requirements of minimum contacts
have been met.” Am. Fin. Trading Corp. v. Bauer, 828 So. 2d 1071, 1074
(Fla. 4th DCA 2002); Woods v. Nova Co. Belize Ltd., 739 So. 2d 617, 619-
20 (Fla. 4th DCA 1999).

    If the plaintiff has sufficiently alleged a basis for long-arm jurisdiction,
then the burden shifts to the defendant to contest those allegations, by
affidavit or other proof, or to claim that the federal minimum contacts
requirement is not met, by affidavit or other verified evidence. See
Venetian Salami, 554 So. 2d at 502. If adequately contested, then the
burden shifts back to the plaintiff to refute the evidence the defendant
submitted by affidavit or other evidence. Id. at 502.

   The trial court can resolve the issue of personal jurisdiction based on
the affidavits or other evidence if they are not in conflict. Id. at 503.
However, when the evidence on the material facts on jurisdiction is in
conflict, “then the trial court must conduct a limited evidentiary hearing
to resolve the factual dispute.” 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 503). At the evidentiary hearing, the trial
court considers testimony and evidence to resolve the factual disputes,
and then it determines whether the plaintiff has demonstrated long-arm
jurisdiction including minimal contacts. See Teva Pharm. Indus. v. Ruiz,
181 So. 3d 513 (Fla. 2d DCA 2015).

    To satisfy the first prong of the Venetian Salami test, the plaintiff must
allege sufficient facts to support long-arm jurisdiction under section
48.193. In this case, the Bolins asserted jurisdiction pursuant to section
48.193(1)(a)6., Florida Statutes. Specifically, the statute provides for
jurisdiction over an out-of-state defendant for causes of action arising out
of the following acts:

      Causing injury to persons or property within this state arising
      out of an act or omission by the defendant outside this state,


                                       3
      if, at or about the time of the injury, either:

         a. The defendant was engaged in solicitation or service
         activities within this state; or

         b. Products, materials, or things processed, serviced, or
         manufactured by the defendant anywhere were used or
         consumed within this state in the ordinary course of
         commerce, trade, or use.

As to this prong, the evidence is in conflict. The sworn affidavit of the SWP
representative states that neither SWP nor its predecessor Ruco sold any
product in Florida. Bolin, on the other hand, stated that he used asbestos-
containing joint compound from Ruco in construction in Florida in the
1970s, although he did not state that either he or his employer purchased
the compound in Florida. While there is a conflict on this first prong, we
need not send the case back because jurisdiction fails under the minimum
contacts second prong.

   For the second prong of Venetian Salami, minimum contacts analysis,
the plaintiff must establish that the defendant’s contacts with the forum
state are: (1) related to the cause of action or gave rise to it; (2) involve
some act by which the defendant purposefully availed itself of the privilege
of conducting business within the forum; and (3) the defendant’s act is
such that it should reasonably anticipate being haled into court in the
forum state. Moro Aircraft Leasing, Inc. v. Int’l Aviation Mktg., Inc., 206 So.
3d 814, 817 (Fla. 2d DCA 2016); Corporacion Aero Angeles, S.A. v.
Fernandez, 69 So. 3d 295, 299 (Fla. 4th DCA 2011).

    The assertion of jurisdiction under section 48.193(1)(a)(6)., Florida
Statutes, is frequently referred to as jurisdiction based upon a
manufacturer placing its goods in the stream of commerce. The United
State Supreme Court has limited that type of jurisdiction over a
manufacturer on due process grounds, concluding that merely placing
goods in the stream of commerce does not create sufficient minimum
contacts to warrant the assertion of jurisdiction. In J. McIntyre Machinery,
Ltd. v. Nicastro, 564 U.S. 873, 886 (2011), the Court held that a
manufacturer who did not have offices or employees in the state in which
the respondent was seeking to assert jurisdiction, did not advertise in the
state, and whose sole contact with the state was the presence of up to four
of its machines in the state, could not be subject to jurisdiction in that
state. The respondent had brought a products liability claim against a
machine manufacturer incorporated and operating in England, based


                                      4
upon an injury he had suffered while using one of the manufacturer’s
machines in New Jersey. Id. at 878. Quoting from Justice O’Connor’s
concurring opinion in Asahi Metal Industry Co., Ltd. v. Superior Court of
California, Solano County, 480 U.S. 102, 112, 107 S. Ct. 1026, 94 L. Ed.
2d 92 (1987), the plurality in Nicastro explained that:

      The “substantial connection” between the defendant and the
      forum State necessary for a finding of minimum contacts
      must come about by an action of the defendant purposefully
      directed toward the forum State. The placement of a product
      into the stream of commerce, without more, is not an act of
      the defendant purposefully directed toward the forum State.

Id. at 883 (citations omitted, emphasis omitted). Justice Breyer concurred,
finding that a single sale into a sovereign jurisdiction could not constitute
minimum contacts to satisfy due process. Id. at 888.

   This case is factually analogous to Nicastro. While the Bolins alleged
that the defendant marketed nationally, targeted Florida, and sold into
Florida, the affidavit of the SWP representative averred that: 1) the
company had no offices or employees in Florida; 2) did not advertise in
Florida; and 3) did not sell its products in Florida during the 1970s. Bolin
responded with his own deposition testimony that he used a Ruco joint
compound while working construction in Florida in the 1970s. But this
alone does not establish “minimum contacts” under Supreme Court
precedent. At most, even if Bolin is correct regarding his use of the product
in Florida, this amounts to a single use, insufficient to prove minimum
contacts. Perhaps there are more facts which Bolin could have brought
forth regarding Ruco’s contact with Florida; however, he did not, and it
was his burden to do so.

   Instead, the Bolins rely on SWP’s current sales and marketing within
Florida to satisfy minimum contacts. SWP contends that the minimum
contacts analysis must be made at the time of the acts subjecting the
foreign defendant to jurisdiction. We agree. “To support an exercise of
specific personal jurisdiction, the defendant's contacts with the forum
state must directly relate to the challenged conduct or transaction . . . .”
Tamburo v. Dworkin, 601 F.3d 693, 702 (7th Cir. 2010) (citing GCIU-Emp'r
Ret. Fund, 565 F.3d at 1024); N. Grain Mktg., LLC v. Greving, 743 F.3d 487,
492 (7th Cir. 2014). “In order to determine whether a claim relates to or
arises out of a party's contacts, the court ‘cannot simply aggregate all of a
defendant's contacts with a state — no matter how dissimilar in terms of
geography, time, or substance — as evidence of the constitutionally-


                                     5
required minimum contacts.’” GCIU-Emp’r Ret. Fund, 565 F.3d at 1024.
The current activity of SWP in Florida forty years later does not relate to
this cause of action. The acts involved in this action occurred in the 1970s.
Bolin offered no evidence with respect to contacts of SWP or Ruco during
that period.

    The Bolins presented no evidence that SWP purposely availed itself of
the privilege of conducting activities in or targeted activities at Florida. It
had no contact with Florida at all in the 1970s. There is no evidence that
it was marketing its product in the state, that it employed agents in the
state, or had agreements with distributors or any contact at all which
would suggest purposeful availment of privileges of the forum. SWP’s
sworn affidavit states that it sold no product in Florida at all. Assuming
that Bolin was using the Ruco product in his work, there is no explanation
of how it was distributed. Was it purchased in Florida, or was it purchased
in Georgia and shipped to Florida? Was it a one-time sale in Florida?
Without some contrary evidence, the plaintiff did not refute the affidavit
presented by SWP. There is no evidence to support the proposition that
SWP should have anticipated being haled into court under the facts of this
case.

   As Justice Kennedy wrote in the plurality opinion in Nicastro:

      A court may subject a defendant to judgment only when the
      defendant has sufficient contacts with the sovereign “such
      that the maintenance of the suit does not offend ‘traditional
      notions of fair play and substantial justice.’” International
      Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90
      L. Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463,
      61 S. Ct. 339, 85 L. Ed. 278 (1940)). Freeform notions of
      fundamental fairness divorced from traditional practice
      cannot transform a judgment rendered in the absence of
      authority into law. As a general rule, the sovereign's exercise
      of power requires some act by which the defendant
      “purposefully avails itself of the privilege of conducting
      activities within the forum State, thus invoking the benefits
      and protections of its laws,” Hanson [v. Denckla], 357 U.S.
      [235], 253, 78 S. Ct. 1228, though in some cases, as with an
      intentional tort, the defendant might well fall within the
      State's authority by reason of his attempt to obstruct its laws.
      In products-liability cases like this one, it is the defendant's
      purposeful availment that makes jurisdiction consistent with
      “traditional notions of fair play and substantial justice.”


                                      6
564 U.S. at 880. Just as the contacts in Nicastro were not sufficient to
support constitutional jurisdiction, the contacts of SWP to Florida are
insufficient to support jurisdiction in this case.

   The Bolins rely primarily on Jones v. Jack Maxton Chevrolet, Inc., 484
So. 2d 43 (Fla. 1st DCA 1986), which has language in the opinion which
supports their position. However, it is purely dicta and no longer
consistent with the current Supreme Court position on minimum contacts
analysis. We must follow the United State Supreme Court.

   For the foregoing reasons, we reverse the order denying SWP’s motion
to dismiss for lack of personal jurisdiction. On remand, the trial court
shall dismiss SWP from the action.

MAY and KLINGENSMITH, JJ., concur.

                          *          *       *

   Not final until disposition of timely filed motion for rehearing.




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