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Wendt v. Horowitz Case Brief

Summary of Wendt v. Horowitz, 822 So.2d 1252 (2002)

Cause of action: The following is a third party cause of action for indemnification as the result of a lawsuit for securities fraud.

Procedural History: After letters were submitted after a hearing on Horowitz’s motion to dismiss for lack of PJ, which was dismissed.  5th DCA held the PJ was improper under the long arm statute, as no tortious action was committed in FL, that only the negligent response would pertain to this argument, and that response took place in MI, not FL.  However, the 5th DCA never ruled on part 2 of the test.

Facts: Trinh used a pyramid scheme in which he had others go out and get high interest prom notes to finance his produce business.  Trinh retained Horowitz as his attorney, who is based out of MI.  Horowitz advised everyone that these were not securities (even though in essence they were).  Those three were investigated under the Office of the Comptroller, who was told the same thing Horowitz told the suitors for investors.  Soon enough, investors sued Wendt, who in turn sued Horowitz, who was allegedly given the wrong information on the phone and in letters from MI.

Issue(s): Under FL laws of civil procedure, do making telephonic, electronic, or written communications into this State can constitute a “tortious act” within FL to subject a nonresident DF to personal jurisdiction under its long arm statute?

Court’s Rationale/Reasoning: The court decides to conduct a de novo review of a trial court’s ruling on a motion to dismiss for lack of PJ.  There is a 2-step inquiry (see rule).

A court can exercise PJ whenever a foreign company commits a tortious act on FL soil.  Then the court applies the rule from Int’l Shoe.  Horowitz does not deny he sent letters to FL in response to the FL Division of Securities or that he drafted loan documents for use in FL, but neither one of these acts is tortious in nature.

The court looks to Venetian Salami.  Physical presence is not necessarily required to satisfy the constitutionality mandated requirement of minimum contacts.  Technology has changed the way we communicate and it no longer requires presence under the technical meaning of the word.  So, can the communication be tortious?

4th DCA said a phone call to a FL citizen could be considered tortious, and the 2nd DCA ruled a tape recorded conversation constituted a tortious act b/c that is where the recorded conversation occurred, and where it was uttered, and thus the PL was subject to PJ in FL.  But the 2nd DCA also ruled sending collection letters and placing phone calls from out of state was not sufficient PJ under the long arm statute.  5th DCA requires actual physical presence for tort to be committed.

But this court disagrees.  No presence for tortious act required.  Also, committing a tortious act in FL under the long arm statute can occur through the nonresident DF’s telephonic, electronic or written communications into FL.  BUT, the cause of action must arise from the communications.  This is the question that the court remands.

Rule: (1) Are there enough facts to bring this case under the long arm of the statute

(2) Is there personal jurisdiction via minimum contacts rule applied in World Wide Volkswagon and previously in Int’l Shoe.

Holding: Yes.  There are (1) enough facts to bring this case under the long arm statute, however (2) the answer is also not sufficient, as the court is still forced to remand the question as to whether the allegations of the complaint state a proper cause of action in the trial court.



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