       Third District Court of Appeal
                              State of Florida

                      Opinion filed November 21, 2018.


                              ________________

                                No. 3D18-792
                         Lower Tribunal No. 17-13703
                             ________________


              Highland Stucco and Lime Products, Inc.,
                                  Appellant,

                                      vs.

                  Silverio Onorato and Faye Onorato,
                                  Appellees.



     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Jose M. Rodriguez, Judge.

     GrayRobinson, P.A., and Jack R. Reiter, for appellant.

     Rebecca S. Vinocur; Simmons Hanly Conroy and William Kohlburn (Salt
Lake City, UT), for appellees.


Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.

                    ON MOTION FOR CLARIFICATION

     ROTHENBERG, C.J.
       On the appellee’s motion for clarification, we grant the motion, withdraw

this court’s opinion issued on September 20, 2018, and issue the following opinion

in its stead.

       The defendant below, Highland Stucco and Lime Products, Inc.

(“Highland”), appeals from an order denying its motion to dismiss for lack of

personal jurisdiction. Because the plaintiffs, Silverio Onorato (“Onorato”) and

Faye Onorato (collectively, “the plaintiffs”) failed to satisfy the “minimum

contacts” federal constitutional due process requirement, see Reynolds Am., Inc. v.

Gero, 56 So. 3d 117, 119 (Fla. 3d DCA 2011) (citing Venetian Salami Co. v.

Parthenais, 554 So. 2d 499, 502 (Fla. 1989)), we reverse.

                                 BACKGROUND

       The plaintiffs filed a products liability action against Highland and several

other defendants alleging that Onorato developed mesothelioma from his exposure

from 1972 to 1976 to asbestos-containing products that were manufactured,

distributed, and/or sold by the defendants in the state of Florida.

       Highland filed a motion to dismiss for lack of personal jurisdiction, and in

support of its motion, Highland submitted the sworn affidavit of Frederick M.

Atkinson (“Atkinson”). In his affidavit, Atkinson explained that Highland, which

dissolved in 2009, was acquired in the mid-1960s by his father, who is now

deceased, and Atkinson began working at Highland in 1966, moving up through

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the ranks of the company until he became the vice-president in 1972, and the

president approximately twenty years later. The affidavit provides that, among

other things, Highland is not and has never been a resident of the state of Florida,

and at all times has been a resident of the state of California with its principal place

of business in California; had no owners, agents, or employees in Florida; never

owned or operated a facility outside of Southern California; never transacted any

business in Florida; never negotiated, entered into, or performed a contract in

Florida; never owned, used, or possessed real or personal property in Florida; never

maintained a place of business in Florida; was never registered to conduct business

in Florida; never maintained any bank accounts, offices, post office boxes,

telephone numbers, or any other business facility in Florida; never advertised in

any Florida publication or on any Florida radio or television station; did not

directly solicit business in Florida; never manufactured, distributed, sold, supplied,

or installed any asbestos-containing products in Florida; and had no connection

with Florida arising from any action or conduct Highland purposely directed

towards Florida. The affidavit further states that “[t]he overwhelming majority of

HIGHLAND’s business was conducted in California. During the time period when

HIGHLAND used asbestos, its products were primarily sold to building supply

dealers within a 60 mile radius of its Van Nuys, California plant.”

      In response to Highland’s motion, the plaintiffs submitted the following: (1)

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excerpts from Onorato’s deposition wherein he testified that Highland’s products

were commercially available for purchase in Florida during the time of his

exposure; (2) a 1959 trade journal advertisement for Highland’s “Hi-Sorb”

acoustical plaster that was distributed by Highland Stucco and Lime Products of

Florida, Inc. (“Highland of Florida”); (3) an article from the same trade journal that

references a plant in Fort Lauderdale operated by Highland of Florida; and (4) an

excerpt from Atkinson’s deposition which was taken in connection with a 2000

California lawsuit. Highland replied with documentation demonstrating that

Highland of Florida was dissolved in 1964, approximately eight years prior to

Onorato’s alleged exposure.

      The trial court conducted a non-evidentiary hearing on the motion. At the

conclusion of the hearing, the trial court denied Highland’s motion to dismiss. In

its order, the trial court concluded that the plaintiffs had alleged sufficient

jurisdictional facts to support the trial court’s exercise of specific jurisdiction over

Highland pursuant to section 48.193(1)(a), Florida Statutes, and to satisfy the

constitutional due process requirements because Onorato “testified to his use of

and exposure to Highland Stucco products within the state of Florida,” and that

“[the] product was purchased through distributors in Florida.”            This appeal

followed.




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                           STANDARD OF REVIEW

        This Court reviews a trial court’s ruling on a motion to dismiss for lack of

personal jurisdiction de novo. Wendt v. Horowitz, 822 So. 2d 1252, 1256 (Fla.

2002). Where the trial court’s decision is based on live testimony, the appellate

court defers to the trial court’s determination as to the credibility of witnesses.

Evans v. Thornton, 898 So. 2d 151, 152 (Fla. 4th DCA 2005) (citing McCarter v.

Bigfoot Indus. Inc., 805 So. 2d 1028, 1031 (Fla. 4th DCA 2001)). Because the

trial court made its determination based only on written submissions, we stand on

equal footing with the trial court as to the interpretation of the written submissions.

Crawford v. Baker, 64 So. 3d 1246, 1251 (Fla. 2011) (citing Muir v. Muir, 925 So.

2d 356, 358 (Fla. 5th DCA 2006)).

                                 ANALYSIS

   I.      Personal Jurisdiction

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

Florida Supreme Court set forth a two-step process for determining whether

personal jurisdiction exists. First, a trial court must determine whether: (1) there

exist sufficient jurisdictional facts to bring the action within the purview of

Florida’s long-arm statute, section 48.193, Florida Statutes;1 and (2) whether the

1During  the time of Onorato’s alleged exposure, the statute was numbered as
section 48.182, Florida Statutes.
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foreign corporation possesses sufficient minimum contacts with Florida to satisfy

federal constitutional due process requirements. Venetian Salami, 554 So. 2d at

501-02. The first, or statutory prong, is established by demonstrating either general

or specific jurisdiction. Teva Pharm. Indus. v. Ruiz, 181 So. 3d 513, 517 (Fla. 2d

DCA 2015). General jurisdiction is established where the defendant has engaged

in substantial and not isolated activity within the state. Id. In other words, the

defendant’s affiliations with the state are so continuous and systemic as to render it

essentially “at home” in the forum state. Daimler AG v. Bauman, 571 U.S. 117,

128 (2014) (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.

915, 919 (2011)). Specific jurisdiction, on the other hand, is established by

pleading specific facts that demonstrate that the defendant’s conduct fits within

one or more subsections of section 48.193.

      A. Specific Jurisdiction Under Florida’s Long-Arm Statute

      In this case, the plaintiffs are relying on specific jurisdiction in order to

satisfy personal jurisdiction under Florida’s long-arm jurisdiction. Section

48.193(1)(a) provides, in part:

      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:

      1. Operating, conducting, engaging in, or carrying on a business or
         business venture in this state or having an office or agency in this
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          state.

      2. Committing a tortious act within this state.

      3. Owning, using, possessing, or holding a mortgage or other lien on
         any real property within this state.

      4. Contracting to insure a person, property, or risk located within this
          state at the time of contracting.
      . . . .

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

      7. Breaching a contract in this state by failing to perform acts
          required  by the contract to be performed in this state.
      . . . .

      In the first amended complaint (“complaint”), the plaintiffs alleged that

Onorato developed mesothelioma as a result of being exposed in Florida to

products containing asbestos manufactured by Highland. Because the complaint

alleges that Highland committed a tortious act in Florida, thus satisfying specific

jurisdiction under section 48.193(1)(a)(2), the burden shifted to Highland to

contest the allegations by affidavit or other proof, or to claim that the federal

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minimum contacts requirement was not satisfied. S. Wall Prods. Inc. v. Bolin, 251

So. 3d 935, 938-39 (Fla. 4th DCA 2018) (citing Venetian Salami, 554 So. 2d at

502).

        As noted above, Highland submitted the Atkinson affidavit in support of its

motion to dismiss.       In his affidavit, Atkinson averred that Highland never

transacted any business in Florida; never negotiated, entered into, or performed a

contract in Florida; never owned, used, or possessed real property in Florida; never

contracted to insure any person, property, or risk in Florida; never maintained a

place of business in Florida; never registered to do business in Florida; never had a

registered agent in Florida; never obtained bank accounts, offices, post office

boxes, telephone numbers, or any other business facilities in Florida; and never

advertised in any Florida publication, radio station, or television station.

Atkinson’s affidavit also states that Highland did not directly solicit business

within Florida; had no connection with Florida arising from any action or conduct;

never purposely directed conduct toward Florida; and never manufactured,

distributed, sold, supplied or installed any asbestos-containing products in Florida.

        Because Highland adequately contested the allegations, the burden then

shifted back to the plaintiffs to refute the evidence submitted by Highland.

Venetian Salami, 554 So. 2d at 502.       The plaintiffs conducted no jurisdictional

discovery and the only evidence they submitted to rebut Atkinson’s affidavit was:

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(1) an unauthenticated advertisement from a 1959 trade journal for Highland Hi-

Sorb acoustical plaster distributed by Highland of Florida; (2) an unauthenticated

article in the same 1959 trade journal that references a plant in Fort Lauderdale

operated by Highland of Florida; and (3) testimony given by Atkinson in a 2000

California case. In the 2000 California case, Atkinson specifically testified that all

of Highland’s sales were made to building material dealers who would usually pick

the products up at the plant. However, on occasion, Highland would deliver the

products to the dealers, but this did not occur often because the company had only

one truck and primarily sold to dealers within a sixty-mile radius of its plant in

Van Nuys, California. Highland contends that nothing in Atkinson’s testimony

serves to refute the affidavit that Atkinson filed in this case. We agree.

      Highland, the named defendant in this action, was a California corporation

that dissolved in 2009. Highland of Florida, at best, was a Florida corporation that

dissolved in 1964, approximately eight years before Onorato’s alleged exposure to

stucco products containing asbestos, and Onorato has failed to show any

connection or relationship between the two corporations. Nothing in the record

suggests that the two corporations shared a corporate identity.

      Further, even if the plaintiffs had established that the Florida entity was a

subsidiary of Highland, the mere presence of a subsidiary in Florida, without more,

is insufficient to subject a non-Florida corporate parent to Florida’s long-arm

                                          9
jurisdiction. See Walt Disney Co. v. Nelson, 677 So. 2d 400, 403 (Fla. 5th DCA

1996). More importantly, even if the plaintiffs had satisfied specific jurisdiction

under Florida’s long-arm jurisdiction, they still failed to establish that Highland,

not Highland of Florida, had sufficient minimum contacts with Florida, such that

extending jurisdiction does not offend constitutional due process.

      B. Constitutional Due Process

      While the statutory prong of the analysis is applied broadly, the

      constitutional

prong is controlled by United States Supreme Court precedent interpreting the Due

Process Clause and imposes a more restrictive requirement. Exec-Tech Bus. Sys.,

Inc., v. New Oji Paper Co., 752 So. 2d 582, 584 (Fla. 2000). The constitutional

prong of the analysis requires the trial court to consider whether the defendant has

sufficient minimum contacts with the state so that the exercise of jurisdiction

would not offend traditional notions of fair play and substantial justice. Venetian

Salami, 554 So. 2d at 502 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316

(1945)).

      In this connection, 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

                                        10
such that it should reasonably anticipate being haled into court in that forum state.

See Bolin, 251 So. 3d at 938 (citing Moro Aircraft Leasing, Inc. v. Int’l Aviation

Mktg., Inc., 206 So. 3d 814, 817 (Fla. 2d DCA 2016)). “Random, fortuitous, or

attenuated contacts” are insufficient. See Burger King Corp. v. Rudzewicz, 471

U.S. 462, 475 (1985).

      The “purposefully availed itself of conducting business within the forum”

and that the “act is such that it should reasonably anticipate being haled into court

in that forum state” prongs of the constitutional due process analysis are especially

important in this appeal.      In products liability cases like this one, it is the

defendant’s purposeful availment that renders jurisdiction consistent with

“traditional notions of fair play and substantial justice.” J. McIntyre Mach., Ltd. v.

Nicastro, 564 U.S. 873, 880 (2011). It is not enough that Highland’s products may

have found their way into Florida or that Highland may have predicted that they

might reach Florida, as foreseeability that a product may find its way into a forum

state is not enough, by itself, to allow that state to constitutionally exercise

jurisdiction over an out-of-state defendant. Blumbery v. Steve Weiss & Co., Inc.,

922 So. 2d 361, 365 (Fla. 3d DCA 2006); see also Bolin, 251 So. 3d at 939-40

(noting that the United States Supreme Court has concluded that merely placing

goods in the stream of commerce does not create sufficient minimum contacts to

warrant the assertion of jurisdiction) (citing to the plurality in J. McIntyre Mach.).

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      Specifically, in Bolin, the Fourth District concluded in an asbestos products

liability case that Florida lacked personal jurisdiction over the Georgia corporate

defendant where there was no evidence that the Georgia defendant marketed its

product in the state, employed agents in the state, had any agreements with

distributors in the state, or had any contact which would suggest purposeful

availment of the privileges of the forum, and had not presented any evidence as to

how the defendant’s product was distributed to Florida.

      Similarly, in the instant case, the plaintiffs never established a link between

Highland and the product he used, how it came to be in Florida, nor that

Highland’s contacts within the state of Florida were “such that the maintenance of

the suit does not offend ‘traditional notions of fair play and substantial justice.’” J.

McIntyre Mach., 564 U.S. at 880 (quoting Int’l Shoe Co. v. Washington, 326 U.S.

310, 316 (1945)). We, therefore, conclude that even if specific jurisdiction under

Florida’s long-arm jurisdiction was established, the plaintiffs failed to meet their

burden of overcoming Highland’s sworn affidavit and submitting evidence

demonstrating that Highland’s contacts with Florida are sufficient under the

constitutional due process prong of the jurisdictional analysis.

                                 CONCLUSION

      Highland submitted a very detailed affidavit in support of its motion to

dismiss for lack of personal jurisdiction. Because the plaintiffs failed to satisfy

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their burden by presenting evidence as to how Highland’s product(s) may have

made their way to Florida and in what quantity, or that Highland directed its

product into Florida for distribution, and it was undisputed that Highland was at all

times a resident of California, with its principal place of business in California, and

has never conducted business in Florida, advertised in a Florida publication, nor

manufactured, sold, distributed, or supplied any products containing asbestos in

Florida, the plaintiffs failed to demonstrate that Highland purposefully availed

itself of the privilege of conducting business within the state such that it reasonably

could have anticipated being haled into court in this state. The plaintiffs, therefore,

failed to meet their burden of satisfying the constitutional due process prong of the

personal jurisdiction analysis.   Accordingly, we reverse the trial court’s order

denying Highland’s motion to dismiss for lack of personal jurisdiction.

      Reversed.




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