       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 24, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D18-710
                         Lower Tribunal No. 16-15137
                             ________________


                          Northwind Air Systems,
                                    Appellant,

                                        vs.

                           Terra's Garden, LLC,
                                    Appellee.



     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Maria De Jesus Santovenia, Judge.

      Graner Platzek & Allison, P.A. and Meredith A. Chaiken (Boca Raton), for
appellant.

      No Appearance for appellee.


Before FERNANDEZ and LINDSEY, JJ., and LEBAN, Senior Judge.

      FERNANDEZ, J.
      Appellant, defendant below, Northwind Air Systems appeals the trial court’s

order denying Northwind’s amended motion to dismiss the third-amended

complaint with prejudice and for entry of final judgment. Appellee Terra’s Garden

LLC did not file an answer brief following issuance of an order to do so.1

Following review of Northwind’s initial brief and the appendix filed in this case,

we agree with Northwind and reverse.

      On June 14, 2016, appellee/plaintiff Terra’s Garden LLC filed an unverified

complaint against Northwind, a Canadian corporation, for breach of contract,

breach of warranty of merchantability, and breach of warranty of fitness for a

specific purpose. Terra claimed in the complaint that jurisdiction was proper

because Northwind orally contracted with Terra “to improve [Terra’s] existing

systems with an industrial air vacuum machine.” On August 24, 2016, Northwind

filed a motion to dismiss for lack of personal jurisdiction, failure to attach

instruments upon which the alleged causes of action are brought, and failure to

state a cause of action for breach of warranty of fitness or a specific purpose. On

December 5, 2016, the trial court entered an agreed order on Northwind’s motion

to dismiss, allowing Terra twenty days to amend its complaint.

      On January 18, 2017, Terra filed an unverified amended complaint, after

which Northwind moved to dismiss it. On March 24, 2017, the trial court held a

1 Appellee was ordered to file its answer brief within a time certain or be prevented
from filing an answer brief and participating in oral argument.

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hearing on Northwind’s motion. The hearing was continued, and the trial court

ordered Terra to submit a memorandum of law to support its position that the court

had jurisdiction over Northwind. After Terra submitted the memorandum, on June

29, 2017, the hearing was continued. The trial court granted Northwind’s motion

to dismiss with leave for Terra to amend the complaint again.

      On July 21, 2017, Terra filed a second amended complaint, asserting that the

parties orally contracted for Northwind to provide the equipment from Canada.

Terra claimed that “Defendants envisioned a continuing relationship with Plaintiff

in Florida by providing a ‘guarantee’ and a warranty over the equipment it

provided to Plaintiff.”   Terra claimed that Northwind gave its warranty and

guarantee by email. Terra did not attach any supporting documents. Terra also

made reference to a purchase order that was also not attached to the second

amended complaint.

      Northwind then filed a motion to dismiss the second amended complaint. At

the hearing on the motion on January 22, 2018, the trial court granted Northwind’s

motion to dismiss with leave for Terra to amend a fourth time to show there was

personal jurisdiction over Northwind. On January 29, 2018, Terra filed its third

amended complaint which was almost the same as the previous complaints, except

this time Terra attached a purchase order and emails.           The purchase order

originally sent to Terra was numbered #MA529028. The purchase order attached



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to the third amended complaint was numbered #NW528151. The email attached to

Terra’s complaint, indicated that Northwind stated, “What I can’t guarantee is the

efficiency of [Terra’s] operation.” Northwind also stated, “Unfortunately, you’ll

[referring to Terra] have to experiment somewhat, I think.” Terra claimed in its

third amended complaint that through email, Northwind guaranteed and warrantied

the equipment in Florida.

      On February 13, 2018, Northwind filed an amended motion to dismiss the

third amended complaint. Northwind had previously provided affidavits from its

principal, John Doyle, and its president, Kevin Weaver. Terra did not provide a

rebuttal affidavit or any other sworn proof to rebut Northwind’s affidavits. On

April 11, 2018, the trial court conducted a non-evidentiary hearing and denied

Northwind’s amended motion to dismiss without prejudice, and gave Northwind

twenty days to file an answer. Northwind now appeals.

      The standard of review on a trial court’s ruling on a motion to dismiss for

lack of personal jurisdiction is de novo. Castillo v. Concepto Uno of Miami, Inc.,

193 So. 3d 57, 59 (Fla. 3d DCA 2016). We agree with Northwind that the trial

court erred in denying Northwind’s amended motion to dismiss the third amended

complaint because Terra did not meet its burden to establish proof of jurisdiction

over Northwind and because the trial court failed to conduct an evidentiary

hearing.



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      In Tobacco Merchants. Association of the United States v. Broin, 657 So. 2d

939, 941 (Fla. 3d DCA 1995), this Court stated:

      “In determining whether a party is subject to in personam jurisdiction
      in this state, the trial court must make two separate inquiries: 1)
      whether sufficient facts have been alleged to bring the cause within
      Florida's long-arm statute; and if so, 2) whether there have been
      sufficient minimum contacts with Florida to satisfy federal
      constitutional due process requirements.”

In addition, “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.” Id. “The burden is then placed upon the

plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.”

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

affidavits cannot be reconciled, then “the trial court will have to hold a limited

evidentiary hearing in order to determine the jurisdiction issue.” Id. at 503. If a

plaintiff chooses not to file an affidavit to controvert the defendant’s affidavit, the

factual assertions of the defendant’s affidavit are treated as true. Archdiocese of

Detroit v. Green, 899 So. 2d 322, 325 (Fla. 3d DCA 2004). If the plaintiff fails to

refute the allegations by providing sworn proof “as to the basis for jurisdiction, the

trial court must grant the defendant’s motion to dismiss.” Tobacco Merchs. Ass’n,

657 So. 2d at 941.

      Terra claims that there is personal jurisdiction in Florida over Northwind, a

Canadian corporation, because Northwind has a website that one can access in


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Florida and because Northwind has sold products in Florida. However, “[t]he

mere existence of a website does not show that a defendant is directing its business

activities towards every forum where the website is visible.” Trs. of Columbia

Univ. in City N.Y. v. Ocean World, S.A., 12 So. 3d 788, 795 (Fla. 4th DCA 2009).

In addition, here, Northwind filed the affidavits of its principal, John Doyle, and its

president, Kevin Weaver, in support of its position that Florida did not have

personal jurisdiction over it. Terra did not file any sworn proof to oppose these

affidavits. Northwind’s affidavits demonstrate that Northwind is headquartered in

Canada; it has never advertised in Florida; its sales in 2013 were less than 1% of its

total sales in Florida; in 2014, Northwind’s sales were less than .5% of total sales

in Florida; and in 2015, its sales in Florida were approximately 1% of its sales. The

affidavits further show that Northwind does not use its website to get sales from

Florida because there is no active link or web portal that a Florida buyer can

access. In addition, the affidavits indicate that of its website-generated sales, only

1/3 of 1% of Northwind’s total sales come from Florida. Furthermore, Northwind

did not solicit business from Terra. Terra contacted Northwind to purchase the

product from Northwind. The bill of sale was drafted in Canada and payment was

received in Canada.       Consequently, the trial court erred in not granting

Northwind’s motion to dismiss the third amended complaint.




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      Moreover, at a minimum, the trial court should have held an evidentiary

hearing to determine the jurisdiction issue, as required by Venetian Salami. In the

case before us, the hearing notice in the record does not demonstrate that the

hearing was an evidentiary one, and the order denying Northwind’s motion to

dismiss the third amended complaint does not give the reasoning the trial court

used to rule on the personal jurisdiction issue. Therefore, there is no way for this

Court to know if the hearing that was held was evidentiary.

      Terra had four opportunities to show there was personal jurisdiction over

Northwind, and it was not able to do so. Thus, for these foregoing reasons, we

reverse the trial court’s order denying Northwind’s amended motion to dismiss the

third-amended complaint with prejudice and remand the case with instructions to

dismiss the third amended complaint with prejudice.           Video Indep. Med.

Examination, Inc. v. City of Weston, 792 So. 2d 680, 681 (Fla. 4th DCA 2001).

      Reversed and remanded with instructions.




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