William J. Mitchell v. David W. Race

Supreme Court of Florida
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No. SC2023-0432
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WILLIAM J. MITCHELL,
Petitioner,

vs.

DAVID W. RACE,
Respondent.

November 7, 2024

SASSO, J.

We initially accepted jurisdiction to review the decision of the

Fourth District Court of Appeal in Race v. Mitchell, 357 So. 3d 720

(Fla. 4th DCA 2023), based on a certified conflict. See art. V,

§ 3(b)(4), Fla. Const.; see also Fla. R. App. P. 9.030(a)(2)(A)(vi). After

further consideration, and for the reasons that follow, we conclude

that jurisdiction was improvidently granted. We therefore exercise

our discretion, discharge jurisdiction, and dismiss this proceeding.
I.

This case involves a claim Mitchell brought against Race under

the Florida Security of Communications Act, which prohibits,

among other things, unlawfully recording phone calls without the

consent of all parties and provides civil remedies for violations of its

proscriptions. See §§ 934.02(1), .02(3), .03(1), .10(1), Fla. Stat.

(2019). On appeal, the issue broadly presented is whether a Florida

court has personal jurisdiction over a nonresident defendant when

the defendant, while out of state, recorded calls with a plaintiff

located in Florida.

The parties agree that the issue of personal jurisdiction is

guided by the two-step test articulated in Venetian Salami Co. v.

Parthenais, 554 So. 2d 499 (Fla. 1989).1 They disagree over its

proper application to the facts of this case. Predictably then, the

1. There are two requirements for a nonresident defendant to
be subject to personal jurisdiction in Florida. First, the complaint
must allege sufficient jurisdictional facts to bring the defendant
within the scope of Florida’s long-arm statute, section 48.193,
Florida Statutes (2019). See Venetian Salami, 554 So. 2d at 502.
Second, there must be sufficient minimum contacts between the
defendant and Florida to comply with the Due Process Clause of the
United States Constitution. See id.

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litigation in the underlying proceedings has focused on the issue of

personal jurisdiction. But the character of the dispute has

morphed between the trial court and the Fourth District.

In the trial court, the parties’ argument focused on the first

step of the Venetian Salami test: assessing whether Race committed

a tortious act in Florida. See § 48.193(1)(a)2., Fla. Stat. (providing

for long-arm jurisdiction over a nonresident that “[c]ommit[s] a

tortious act within [Florida]”). As a result, the parties dispensed

with any request for an evidentiary hearing regarding the second

step of the Venetian Salami test: assessing whether Race had

sufficient minimum contacts with the state sufficient to satisfy due

process concerns. With the dispute framed this way, the trial court

conducted (with Race’s consent) an expedited hearing solely on the

legal issue of whether Race committed a tortious act in Florida.

Subsequently, the trial court entered a final order concluding

that Race committed a tortious act in Florida because the alleged

“interceptions” occurred in Florida where Mitchell’s statements were

made. The trial court also found that “based on [the] circumstances

and the record before the Court,” personal jurisdiction over Race

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did not violate the due process component of the Venetian Salami

test.

On appeal, the parties began debating the due process

component in earnest. And this issue—the second step of the

Venetian Salami test—ultimately formed the basis for the Fourth

District’s decision. Reversing the trial court’s decision, the Fourth

District concluded that Race “lacks sufficient minimum contacts

with Florida to require him to defend a lawsuit in this state.” Race,

357 So. 3d at 721. The court reasoned:

Where a defendant legally records a phone
conversation in his home state, and has no other
significant contacts with Florida, it offends traditional
notions of fair play and substantial justice to require him
to appear in Florida to defend against a lawsuit for an
alleged violation of the Florida Security of
Communications Act.

Id. at 723. In doing so, the Fourth District did not address the first

step in the Venetian Salami test. Even so, the Fourth District then

certified conflict with France v. France, 90 So. 3d 860 (Fla. 5th DCA

2012), a case addressing only the first step of that test. See id. at

864 (holding that an out-of-state resident can commit a tortious act

in Florida simply by recording a Florida resident). We accepted

jurisdiction based on the Fourth District’s certification.

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II.

Article V provides that this Court “may” exercise its

jurisdiction over cases from the district courts that certify conflict

with another district. There is no question that the Fourth District

certified conflict, and we are therefore squarely within our

constitutional authority to consider and decide this case. Even so,

whether we should exercise our discretion to decide this case is a

separate question.

There are no fixed constitutional standards guiding this

Court’s discretionary jurisdiction. In the past though, we have

declined to exercise constitutionally authorized jurisdiction in

conflict cases when upon closer review of the case, this Court has

not been presented with a clear conflict to resolve. See, e.g.,

Bollettieri Resort Villas Condo. Ass’n v. Bank of N.Y. Mellon, 228 So.

3d 72, 73 (Fla. 2017) (dismissing a case because “the certified

conflict has been resolved”); Summit Claims Mgmt., Inc. v. Lawyers

Express Trucking, Inc., 944 So. 2d 339, 340 (Fla. 2006) (dismissing

a case because “upon further review, we determine that no actual

conflict exists between the lower courts’ opinions in regard to the

certified question”); State v. Fuller, 887 So. 2d 1236, 1237 (Fla.

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2004) (dismissing a case because a subsequent holding eliminated

the existence of an actual conflict); Skinner v. State, 470 So. 2d 702,

702 (Fla. 1985) (same).

Here, after the benefit of full merits briefing and oral

argument, we conclude that because the alleged conflict case

addresses a distinct issue from the one decided by the Fourth

District, we have been presented with a certified but fictional

conflict. What is more, we have been presented with a record that

is insufficient for this Court to adequately address the issue the

Fourth District did analyze. See Burke Prods., Inc. v. Access Elecs.,

LLC, 311 So. 3d 145, 149 (Fla. 2d DCA 2020) (“Whether the

nonresident has those requisite minimum contacts is a fact-specific

inquiry.”).

In the end, while this case presents many interesting issues,

we conclude those issues are largely academic in the context of the

unique procedural history of this case. As a result, we exercise our

discretion, discharge jurisdiction, and dismiss this proceeding.

It is so ordered.

MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
and FRANCIS, JJ., concur.

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NO MOTION FOR REHEARING WILL BE ALLOWED.

Application for Review of the Decision of the District Court of Appeal
Certified Direct Conflict of Decisions

Fourth District - Case No. 4D22-1979

(Broward County)

James A. Stepan of Law Offices of James A. Stepan, P.A.,
Hollywood, Florida; and Thomas Hunker of Hunker Paxton Appeals
& Trials, Fort Lauderdale, Florida,

for Petitioner

James S. Toscano and Rebecca E. Rhoden of Lowndes, Drosdick,
Doster, Kantor & Reed, P.A., Orlando, Florida,

for Respondent

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor
General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, and
Robert Scott Schenck, Assistant Solicitor General, Tallahassee,
Florida,

for Amicus Curiae Attorney General

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