       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 29, 2018.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                         Nos. 3D16-1135 & 3D16-1146
                         Lower Tribunal No. 14-10016
                              ________________


                         Woodruff-Sawyer & Co.,
                           Appellant/Cross-Appellee,

                                        vs.

      Richard Ghilotti and Nancy Ghilotti, as the Co-Personal
     Representatives of the Estate of Dino R. Ghilotti, deceased,
                           Appellees/Cross-Appellant.


     Appeals from non-final orders from the Circuit Court for Miami-Dade
County, Eric William Hendon, Judge.

      Luks, Santaniello, Petrillo & Jones and Stuart L. Cohen and Edgardo
Ferreyra, Jr., for appellant/cross-appellee.

     Kreusler-Walsh Vargas & Serafin, P.A. and Jane Kreusler-Walsh, Rebecca
Mercier Vargas and Stephanie L. Serafin (West Palm Beach); Deutsch &
Blumberg, P.A. and Steven K. Deutsch, for appellees/cross-appellant.


Before SUAREZ, SALTER, and FERNANDEZ, JJ.

     FERNANDEZ, J.
      Appellant Woodruff-Sawyer & Co. (“Woodruff-Sawyer”) appeals the lower

court’s April 18, 2016 non-final order denying Woodruff-Sawyer’s motion to

dismiss for lack of personal jurisdiction. Appellees Richard Ghilotti and Nancy

Ghilotti (the “Ghilottis”), as the Co-Personal Representatives of the Estate of Dino

R. Ghilotti, deceased,1 separately appeal the lower court’s April 18, 2016 order

granting Woodruff-Sawyer’s motion to dismiss for forum non-conveniens and

motion to sever and the lower court’s order denying the Ghilottis’ motion for an

additional stipulation. For the reasons stated below, we reverse the denial of

Woodruff-Sawyer’s motion to dismiss for lack of personal jurisdiction.          The

reversal renders the other issues on appeal moot.

      This cause arises from an agreement to procure insurance between

Woodruff-Sawyer and non-party Ghilotti Construction Company, Inc. (“Ghilotti

Construction”), both with their principal places of business in California.

Woodruff-Sawyer procured automobile insurance and excess automobile insurance

from two non-party insurers for Ghilotti Construction.       In May of 2013, the

Ghilottis’ son, Dino Ghilotti (the “Decedent”), died as a result of a motor vehicle

collision in Coral Gables, Florida.2    Subsequent to the Decedent’s death, the



1  Nancy Ghilotti has since passed away and is no longer a co-personal
representative of the Estate.
2 The Decedent was a passenger in a non-party’s vehicle. The car insured under

the policies relevant here was not involved.

                                         2
Ghilottis sought compensation from various non-parties, the details of which are

not relevant to the disposition of the jurisdictional issues on appeal.

      On October 29, 2014, the Ghilottis filed an amended complaint alleging that

Woodruff-Sawyer acted negligently in procuring said automobile insurance and

breached its fiduciary duty in doing so. Specifically, the Ghilottis alleged that the

insurance policies Woodruff-Sawyer procured did not provide sufficient and

adequate underinsured motorist benefits to cover damages incurred as a result of

the Decedent’s death. With respect to jurisdiction, the amended complaint avers

that at all relevant times Woodruff-Sawyer: (i) “was operating, conducting,

engaging in, or carrying on an insurance broker and/or agency business in

Florida;” (ii) “was a foreign corporation authorized to transact business in Florida

and designated a Florida registered agent to accept service of process;” and (iii)

“effectively committed tortious acts within Florida and directed at individuals in

Florida, including [the Decedent].”       The amended complaint also contains a

recitation of facts describing an agreement between Woodruff-Sawyer and Richard

Ghilotti, wherein Woodruff-Sawyer “agreed and undertook to act as the insurance

broker and/or insurance agent for Richard Ghilotti and his company, Ghilotti

Construction . . . [and procure automobile insurance] to fully cover [the Decedent]

. . . [who] was an intended and third party beneficiary of the foregoing contract.”

Further, the Ghilottis alleged that Woodruff-Sawyer “knew or should have known



                                           3
that [the Decedent] was a full-time . . . [student in] Miami-Dade County . . .

[whose car] would be and was principally garaged in Miami-Dade County, Florida,

while he was [a student].”

      On December 3, 2014, Woodruff-Sawyer filed a motion to dismiss the

amended complaint for lack of personal jurisdiction, supported by the affidavit of

Zac Overbay, a Senior Vice President and shareholder of Woodruff-Sawyer on its

behalf. On March 4, 2015, the Ghilottis filed a memorandum of law in opposition

to said motion, supported by the affidavit of Richard Ghilotti. On March 6, 2015,

Woodruff-Sawyer filed a reply to the opposition, as well as a motion to sever. On

August 26, 2015, the lower court held a hearing on the same. On April 18, 2016,

the lower court entered an order denying Woodruff-Sawyer’s motion to dismiss for

lack of personal jurisdiction. This appeal followed.

      We review the lower court’s order denying Woodruff-Sawyer’s motion to

dismiss for lack of personal jurisdiction de novo. See, e.g., Wendt v. Horowitz,

822 So. 2d 1252, 1256 (Fla. 2002). Our analysis is governed by a two-step inquiry

for determining whether long-arm jurisdiction over a nonresident defendant is

proper, consistent with the holding of Venetian Salami Co. v. Parthenias, 554 So.

2d 499 (Fla. 1989).

      First, we must determine whether the Ghilottis alleged facts sufficient to

bring the action within the ambit of Florida’s long-arm statute. The first prong of



                                         4
the analysis does not include due process considerations. Internet Sols. Corp. v.

Marshall, 39 So. 3d 1201, 1215 (Fla. 2010) (“[The Florida Supreme Court has]

never construed the first prong of the jurisdiction analysis with a constitutional

overlay . . . [i]ssues of due process and fairness are properly considered in the

second prong, which imposes a more restrictive requirement.”) (internal quotations

and citations omitted). To bring the cause within the ambit of the long-arm statute,

the complaint may either allege facts sufficient to show that the defendant’s actions

fit within one or more of the subsections of the statute, or track the language of the

statute. Fla. R. Civ. P. 1.070(i); Venetian Salami, 554 So. 2d at 502.

      Second, if the first prong is satisfied, we must determine whether Woodruff-

Sawyer has sufficient “minimum contacts,” with Florida, to satisfy due process

requirements.    Personal jurisdiction takes two forms, general jurisdiction and

specific jurisdiction, as detailed herein.

      A motion to dismiss, without more, only challenges the legal sufficiency of

the pleadings. In order to contest the complaint’s jurisdictional allegations or to

raise due process concerns, a defendant must file an affidavit or other sworn proof.

      If the defendant’s affidavit properly contests the basis for long-arm

jurisdiction with legally sufficient facts, the plaintiff bears the burden to refute the

proof in the defendant’s affidavit with a supporting affidavit. If the relevant facts

set forth in the respective affidavits directly conflict, then the trial judge must hold



                                             5
a limited evidentiary hearing to resolve the factual dispute. Id. at 502-03; see also

Belz v. Investco Ltd. P’ship v. Groupo Immobiliano Cababie, S.A., 721 So. 2d 787

(Fla. 3d DCA 1998).

      On appeal, Woodruff-Sawyer argues the lower court erred in denying the

motion to dismiss for lack of personal jurisdiction because the Ghilottis have failed

to allege facts sufficient to warrant the imposition of personal jurisdiction under

the long-arm statute, and because Woodruff-Sawyer does not have sufficient

minimum contacts with Florida to satisfy the Due Process Clause of the United

States Constitution.

      Personal jurisdiction, unlike subject matter jurisdiction, is a waivable right.

See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462 n.14 (1985); Babcock v.

Whatmore, 707 So. 2d 702 (Fla. 1998). In certain circumstances, Florida law

authorizes the exercise of personal jurisdiction based upon consent.3 See, e.g., Fla.

Stat. §§ 685.101 and 685.102; Jetbroadband WV, LLC v. Mastec N. Am., 13 So.

3d 159 (Fla. 3d DCA 2009).

3  Although courts, in some cases, use the terms “consent” and “waiver”
interchangeably, it is important to distinguish between instances in which the
jurisdictional challenge is considered on the merits versus instances in which a
defendant is precluded from asserting a jurisdictional defense. As discussed in
Babcock, a court will not entertain a personal jurisdictional defense for a number
of reasons, including, but not limited, failing to timely object to personal
jurisdiction or seeking affirmative relief. 707 So. 2d at 704-05. In such cases, a
court does not reach the due process analysis. However, where a jurisdictional
challenge is properly entertained on its merits, the due process requirements of the
United States Constitution must also be considered.

                                         6
      Section 48.091, Florida Statutes, requires every foreign corporation qualified

to transact business in Florida to designate a registered agent for service of process.

The Ghilottis argue Woodruff-Sawyer consented to personal jurisdiction in Florida

by both obtaining a license to do business and designating a registered agent in

Florida. As a threshold issue, it is important to clarify that although the Ghilottis

frame the issue as one of “consent” to jurisdiction, in actuality the Ghilottis argue

for the exercise of general jurisdiction over Woodruff-Sawyer.4

      The Ghilottis rely primarily on three cases to support the proposition that

both registration to do business and designation of a registered agent for service of

process in Florida is sufficient, without more, to establish personal jurisdiction in

Florida courts: White; Ulloa; and Cherry.



4 The Ghilottis do not argue, and the record does not support, that Woodruff-
Sawyer should be precluded from contesting personal jurisdiction. The Ghilottis
do not point to an agreement between the parties that confers personal jurisdiction
on a Florida court, which could affect the due process analysis. See, e.g.,
Jetbroadband WV, LLC, 13 So. 3d at 163 (“Normally, courts review a number of
factors to determine whether minimum contacts exist. However, in the commercial
context, the Supreme Court has held that the minimum contacts standard is met if a
forum-selection clause exists that is freely negotiated and is not unreasonable and
unjust.”) (internal quotations and citations omitted). Nor do the Ghilottis cite any
Florida statute that explicitly states obtaining a license to do business and
designating a registered agent, in Florida, are sufficient to satisfy due process
requirements. Contra Bane v. Netlink, 925 F.2d 637, 640 (3d Cir. 1991)
(“Pennsylvania law explicitly states that the qualification of a foreign corporation
to do business is sufficient contact to serve as the basis for the assertion of personal
jurisdiction . . . such registration by a foreign corporation carries with it consent to
be sued in Pennsylvania courts.”).

                                           7
      White and Ulloa are inapposite. See, e.g., Magwitch, LLC v. Pusser’s W.

Indies Ltd., 200 So. 3d 216, 218 (Fla. 2d DCA 2016). First, White addresses the

sufficiency of service of process under section 48.081, Florida Statutes (1983), and

does not address due process considerations.5 White v. Pepsico, 568 So. 2d 886,

888 (Fla. 1990) (“The only question before this Court is whether White executed

service of process on Pepsico pursuant to the requirements of the Florida

Statutes.”). Second, Ulloa does not involve issues of personal jurisdiction. Ulloa

v. CMI, Inc., 133 So. 3d 914, 920 (Fla. 2013) (“This case clearly does not involve

personal jurisdiction because [the non-party witness] is not a party to the action.”).

      Cherry6 has yielded to subsequent precedent. Rose’s Stores, Inc. v. Cherry,

526 So. 2d 749 (Fla. 5th DCA 1988). Cherry is inconsistent with both Florida’s

long-arm statute as well as the United States Supreme Court’s decisions in Daimler

AG v. Bauman, 571 U.S. 117 (2014), and Goodyear Dunlop Tires Operations, S.A.

v. Brown, 564 U.S. 915 (2011).7

5 Even if White had thoroughly addressed due process considerations, as we note
below, subsequent precedent has since refined the constitutional due process
standard for determining general jurisdiction.
6 Cherry, 526 So. 2d 749, is one of a number of similarly situated cases. See, e.g.,

Dombroff v. Eagle-Picher Indus., Inc., 450 So. 2d 923 (Fla. 3d DCA 1984);
Ranger Nationwide, Inc. v. Cook, 519 So. 2d 1087 (Fla. 3d DCA 1988); and
Junction Bit & Tool Co. v. Institutional Mortg. Co., 240 So. 2d 879 (Fla. 4th DCA
1970).
7 This Court has recognized that Daimler and Goodyear “significantly” changed

the constitutional due process standard for determining general jurisdiction. Banco
De Los Trabajadores v. Cortez Moreno, 237 So. 3d 1127, 1134 (Fla. 3d DCA
2018).

                                          8
      Section 48.193(2), Florida Statutes, provides a basis for asserting general

jurisdiction over foreign corporations who are “engaged in substantial and not

isolated activity within [Florida].”8 Florida courts have interpreted this statutory

language to require “continuous and systematic” business contacts that are

“extensive and pervasive.” See, e.g., Banco De Los Trabajadores, 237 So. 3d at

1134; Aegis Defense Servs., LLC v. Gilbert, 222 So. 3d 656, 659 (Fla. 5th DCA

2017); and Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245, 259 (Fla. 4th DCA

2011).   Here, the amended complaint does not track the language of section

48.193(2), nor does it allege facts sufficient to show that Woodruff-Sawyer

engaged in substantial and not isolated activity within Florida. The allegation that

Woodruff-Sawyer “was a foreign corporation authorized to transact business in

Florida and designated a Florida registered agent to accept service of process,”

without more, can hardly be described as substantial and not isolated activity.

Thus, the Ghilottis fail to even satisfy the first prong of the Venetian Salami test.

      While we need not address the second prong, given the failure to satisfy the

first, we note that the due process standard for the exercise of general jurisdiction

is even more exacting.       Indeed, Daimler reiterated the due process inquiry

undertaken in Goodyear, “whether that corporation’s affiliations with the State are
8 Section 48.193(2), Florida Statutes – A defendant who is engaged in substantial

and not isolated activity within this state, whether such activity is wholly interstate,
intrastate, or otherwise, is subject to the jurisdiction of the courts of this state,
whether or not the claim arises from that activity.


                                           9
so continuous and systematic as to render [it] essentially at home in the forum

State.” 571 U.S. at 139 (quoting Goodyear, 564 U.S. at 919) (internal quotations

omitted). Woodruff-Sawyer is not incorporated in Florida, does not maintain its

principal place of business in Florida, and is not so heavily engaged in activity in

Florida as to render it essentially at home in Florida. See also BNSF Ry. Co. v.

Tyrrell, 137 S. Ct. 1549 (2017). The exercise of general jurisdiction, in this

instance, is not appropriate.

      Section 48.193(1)(a), Florida Statutes, enumerates several acts that subject a

nonresident to the jurisdiction of the courts of Florida, provided the cause of action

arises from any of those acts. We are required to strictly construe the long-arm

statute in favor of the nonresident defendant. Navas v. Brand, 130 So. 3d 766, 770

(Fla. 3d DCA 2014).

      The Ghilottis argue that the amended complaint, either through alleging

detailed facts or tracking statutory language, implicates sections 48.193(1)(a)(2)

and (1)(a)(7). Specifically, the Ghilottis claim Woodruff-Sawyer is subject to

long-arm jurisdiction because it committed tortious acts in Florida and breached an

agreement in Florida.

      First, we are unpersuaded that section 48.193(1)(a)(7) is implicated, which

requires a breach of contract in Florida “by failing to perform acts required by the

contract to be performed in this state.” In no part does the amended complaint



                                         10
track this language, nor does it contain specific facts to that effect. Even still,

Woodruff-Sawyer’s affidavit specifically contesting that basis of long-arm

jurisdiction went unrebutted by the Ghilottis’ affidavit. Thus, with respect to

section 48.193(1)(a)(7), the complaint does not allege sufficient jurisdictional facts

to bring the action within the ambit of Florida’s long-arm statute.

      Next, we address section 48.193(1)(a)(2), “[c]ommitting a tortious act

within this state.”    The Ghilottis claim that Woodruff-Sawyer “effectively

committed tortious acts within Florida and directed at individuals in Florida,

including [the Decedent.]” As has been recognized by the Florida Supreme Court,

a defendant’s physical presence is not required in order to “commit a tortious act”

in Florida. Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002) (holding that a

nonresident defendant’s telephonic, electronic, or written communications into

Florida can amount to committing a tortious act in Florida). However, that does

not obviate the connexity requirement: the existence of a causal connection

between the defendant’s activities in Florida and the plaintiff’s cause of action. Id.

Here, Woodruff-Sawyer’s affidavit, in relevant parts, goes unrebutted: all activities

and communications related to procuring the subject policies occurred in

California, and the subject policies were issued to a California company.

Therefore, we find that the Ghilottis did not satisfy the requirements for personal




                                         11
jurisdiction under Florida’s long-arm statute. See, e.g., Merkin v. PCA Health

Plans of Florida, Inc., 855 So. 2d 137, 141 (Fla. 3d DCA 2003).

      Finally, the exercise of specific jurisdiction in this cause would be contrary

to due process.   In Walden, the United States Supreme Court held that the

foreseeability of harm to plaintiffs with connections to the forum state does not

suffice to authorize specific jurisdiction, where the relevant conduct occurred

entirely outside of the forum state. 571 U.S. 277 (2014). In other words, “the

plaintiff cannot be the only link between the defendant and the forum,” as is the

case here.   Id. at 286.   “What is needed – and what is missing here – is a

connection between the forum and the specific claims at issue.” Bristol-Myers

Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017).

      For the reasons discussed above, we reverse, holding that the circuit court

lacked both general and specific jurisdiction over Woodruff-Sawyer.

      Reversed.




                                        12
