By Michael P. Sampson (part 8 of 8)
Affidavits: Important to Be Prepared!
An entity drawn into a family law dispute typically must assemble sworn affidavits to support challenges to service of process or personal jurisdiction or both. See Fishman, Inc. v. Fishman, 657 So. 2d 44, 45-46 (Fla. 4th DCA 1995) (nonresident defendants under Venetian Salami and Thompson contesting long-arm jurisdiction must file affidavits, but not if the spouse attempting to establish jurisdiction first does so by pleading a legally sufficient basis for personal jurisdiction over the foreign corporation).
In reviewing a motion to quash service or dismiss, the court likely will derive facts from the affidavits, transcripts, and other records. See Rollet v. de Bizemont, 159 So. 3d 351, 355 (Fla. 3d DCA 2015) (reversing denial of nonresident husband’s motion to dismiss accompanied by his affidavit detailing reasons his wife could not plead sufficient allegations to establish personal jurisdiction over him); Hamilton v. Hamilton, 142 So. 3d 969, 972 (Fla. 4th DCA 2014) (a family stock purchase agreement provided for mandatory venue and consent to jurisdiction in Florida, but Michigan stepson’s affidavit refuted many allegations regarding contacts with Florida, independent of the forum selection clause, that could establish the requisite minimum contacts, and plaintiff stepmother filed no response or affidavits refuting stepson’s attestations); Wendt v. Horowitz, 822 So. 2d 1252, 1254 (Fla.2002); WH Smith, PLC v. Benages & Associates, Inc., 51 So. 3d 577, 582-83 (Fla. 3d DCA 2010); Marina Dodge, Inc. v. Quinn, 134 So. 3d 1103, 1108 (Fla. 4th DCA 2014) (affidavits before the trial court revealed few contacts between the defendant and Florida). See also Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla.1989) (setting forth the process for determining factual issues raised by a motion to dismiss for lack of personal jurisdiction); Bellairs v. Mohrmann, 716 So. 2d 320, 322 (Fla. 2d DCA 1998) (following the Venetian Salami procedure regarding the alter ego theory for establishing jurisdiction); Extendicare, Inc. v. Estate of McGillen, 957 So. 2d 58, 63 (Fla. 5th DCA 2007) (relying on defendant’s affidavits to refute the jurisdictional allegations in a complaint, and finding that plaintiff failed to meet its burden to offer sworn proof to contradict the jurisdictional allegations in the affidavit to establish a basis for jurisdiction).
Affidavits May Be Excused When Spouse Fails to Plead Jurisdictional Basis
A spouse who has sued a corporation or trust must plead a basis for jurisdiction before the burden shifts to the entity to file affidavits contesting jurisdiction.
A court may excuse an entity sued in a divorce action from filing affidavits contesting service of process or jurisdiction, in which case the burden of establishing lack of jurisdiction never shifts to the entity. Fishman, Inc. v. Fishman, 657 So. 2d 44, 45 (Fla. 4th DCA 1995).
In Fishman, the wife joined three out-of-state corporations in her petition for dissolution of marriage. The trial court denied the corporations’ motion to dismiss, apparently because they filed no affidavits to support their position they lacked the minimum contacts with Florida to satisfy due process. The appellate court reversed, because the wife failed to plead in the first place a legally sufficient basis for long arm jurisdiction, so the burden never shifted to the corporations to offer sworn affidavits to plead a negative—there was no jurisdiction.
Likewise, in an ancillary proceeding alleging a nonresident, his Delaware limited liability company, and a Miami resident committed civil conspiracy, it was not enough for the personal representative plaintiff to stick specifics about the “conspiracy” in her declaration or affidavit. Her operative pleading (petition or complaint) had to contain sufficient allegations of civil conspiracy. She alleged no facts in the four corners of her operative pleading evidencing how the nonresident conspired with the other defendants; therefore, she did not trigger the Venetian Salami two-step dance. The parties’ competing affidavits, supporting and contesting jurisdiction, do not become relevant until the plaintiff does that within the 4 corners of the complaint and a nonresident defendant has no obligation to file an affidavit, declaration, or to present other evidence to contest personal jurisdiction. Parisi v. Quadri de Kingston, Case No. 3D20-811 (Fla. 3d DCA January 13, 2021).
Form of Affidavits: Important!
An affidavit from a representative, officer, director, trustee, partner, records custodian or other representative of an entity should state the person’s capacity to swear or affirm to the matters in the affidavit. The person should describe the duties with the entity and specify the basis for personal knowledge about facts, not legal opinions, in the affidavit. See Everett v. Avatar Property & Casualty Insurance Company, Case No. 2D19-1563 (Fla. 2d DCA Jan 29 2021). Although a corporate officer’s knowledge is presumed, a corporate representative’s affidavit should reveal the person’s corporate position and duties and should attach supporting business records if necessary. Id.
Unsworn Declarations: Careful!
Unsworn “declarations” that fail to include the language, “I declare under penalty of perjury” are a legal nullity and have no probative value. See Intego Software, LLC v. Concept Development, Inc., 198 So. 3d 887, 897 (Fla. 1st DCA 2016) (the right to amend pleadings extends to correcting defects in declarations and affidavits).See als; Arnold v. Arnold, 889 So. 2d 215, 216 (Fla. 2d DCA 2004) (“Unsworn statements cannot serve as the basis for a trial court’s factual determinations.”) Sections 92.50 and 92.525, Florida Statutes set forth how oaths and affidavits are made in Florida, in other states, and in foreign countries.
Be Prepared to Provide Facts for Affidavits Supporting Challenges Regarding:
- The circumstances surrounding service of process
- Facts to refute incorrect allegations in the spouse’s pleading that purport to allege a basis for jurisdiction
- The nature and scope of the entity’s business and property
- The extent of agents or contacts in Florida
- Other facts directed to specific personal jurisdiction, general personal jurisdiction or the alter ego theory, if alleged.