Florida Court’s Jurisdiction Over Out-of-State Party in Domestic Violence Cases

Florida courts may only act if they have personal jurisdiction over the defendant, even in the case of alleged domestic violence. Having family in Florida, visiting Florida on vacation in the past, and sending a spouse and children to visit family in Florida are insufficient contacts to confer personal jurisdiction.  Youssef v. Zaitouni, Case No. 2D17-926 (Fla. 2d DCA Feb. 14, 2018) [.pdf].

When is there personal jurisdiction over an out-of-state resident?

Husband, an Ohio resident, moved through counsel to vacate an injunction entered against him in Florida after his estranged Wife moved to Florida and sought and obtained a domestic violence injunction (DVI) against him.  Husband argued that Florida did not have personal jurisdiction over him because he did not have sufficient contacts with Florida under Florida’s long arm statute, Section 48.193.  The trial court found that family members residing in Florida and past visits were sufficient contacts with Florida to confer jurisdiction.  In the alternative, the trial court invoked its “emergency jurisdiction over the minor children” under the Uniform Child Custody Jurisdiction and Enforcement Act, Sections 61.501-542, Fla. Stat.  (UCCJEA).

The Second District Court of Appeal yesterday reversed the refusal to vacate the injunction, and remanded for dismissal for lack of jurisdiction.  First, the court held that the contacts were not sufficient to confer personal jurisdiction under the long arm statute.  Second, the court found that the UCCJEA governed custody proceedings, and did not create an independent basis for the trial court to exercise personal jurisdiction.

What does this mean for parties seeking domestic violence protection against an out-of-state spouse or alleged abuser?

For the accused party, we recommend you contact a family law attorney right away to discuss your options and determine whether a motion to quash is appropriate in your case.  If you appear in court or respond to the petition without a lawyer, you will likely waive this important defense.

For those seeking protection, we recommend you be prepared to demonstrate the accused’s contacts with the state of Florida.  If you cannot, you should consider instead seeking an injunction in the accused’s home state, and then having that injunction domesticated and enforced in Florida.

But please don’t take legal advice from a blog post.  These cases are complicated, and it is best to consult an attorney with experience in these matters to get advice specific to your unique circumstances.

Dineen Wasylik and Jared Krukar of DPW Legal represented the winning party on appeal. DPW Legal focuses on assisting parties in navigating complicated procedural issue, both on appeal, and by supporting trial counsel.

Many thanks to the trial counsel in this case, Felicia Williams of Father’s Rights Law, P.A.  who did an excellent job of preserving her client’s rights to appeal and to be heard in the proper jurisdiction.  Check out Felicia’s video on what to do if you are served with a domestic violence injunction.

Can Judges and Lawyers Be Facebook “Friends”? It Depends Where You Are.

An attorney can be friends with a judge IRL (in real life). Now they can be Facebook friends too–at least in the Third District.

The Third District Court of Appeal, recognizing the evolving influence and role of social media in our society, has held that a judge should not be disqualified from a case for merely being Facebook “friends” with counsel for a party.

In Law Offices of Herssein and Herssein, P.A., v. United Services Automobile Association, 3D17-1421 (Fla. 3d DCA Aug. 23, 2017), the petitioners filed a writ of prohibition, seeking to disqualify the trial court judge because a potential witness and a potential defendant was listed on the judge’s personal Facebook page as a “friend.”

This issue has nearly a decade of history in Florida law.  In 2009, a Judicial Ethics Advisory Committee Opinion said that a judge may not add lawyers who may appear before him as “friends” on social networking sites, and vice versa.  In 2012, the Fourth District relied on the JEAC Opinion and granted a writ of prohibition, disqualifying a judge because he was Facebook “friends” with the prosecutor, Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

Then, in 2014, the Fifth District granted a writ of prohibition because the trial judge “reached out” to a party in a dissolution case while litigation was pending and tried to “friend” her on Facebook.”  Chace v. Loisel, 170 So. 3d 802 (Fla. 5th DCA 2014).  While clearly what the trial court did was wrong, and factually different than the issue in Domville, the Chace court went on to express “serious reservations about the court’s rationale in Domville.”  The Fifth District said that “there is no difference between a Facebook ‘friend’ and any other friendship a judge might have,” and that “Domville’s logic would require disqualification in cases involving an acquaintance of a judge.”  The Fifth District also noted that “A Facebook friendship does not necessarily signify the existence of a close relationship.”

This is the legal landscape in which the Third District decided Herssein.  Preliminarily, the court recognized that merely being “friends” in the conventional sense has been historically insufficient to warrant disqualification of a judge.  It then latched onto the Fifth District’s statement regarding the closeness of Facebook “friends,” applying this rationale for three reasons:

  • “Some people have thousands of Facebook ‘friends,'”
  • “Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends,'” and
  • “many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology rather than personal interactions.”

The Fifth District noted that Domville had been decided many years prior, in a quickly-evolving technological landscape–stated simply, times have changed.  It certified conflict with Domville, and denied the petition, holding that merely being Facebook “friends” with someone no longer demonstrates closeness of a relationship.

So where does that leave us practicing attorneys?

  • In the Third District, whether you are Facebook “friends” with a judge is irrelevant to whether your actual relationship is sufficiently close to warrant disqualification.  See Herssein.
  • In the Fourth District, being Facebook “friends” with a judge is sufficient on its own to warrant a disqualification.  See Domville.
  • The Fifth District’s dicta suggests it would side with the Third District, but it has issued nothing precedential upon which to rely.  See Chace.
  • Neither the First nor Second Districts have spoken on the issue.

The Clerk of Court is Not the Best Bailee for Your Negotiable Instrument, Second DCA Holds

The Second District last week reversed a judgment of foreclosure, holding that Nationstar–the servicer of the loan at issue–could not establish it was the holder or nonholder in possession of a Note via possession by the clerk of court.

Years prior to the suit that led to the opinion in Partridge v. Nationstar Mortgage, LLC, 2D16-3081 (Fla. 2D DCA Aug. 11, 2017), lender Bank of America had filed the original note and mortgage with the trial court in a different foreclosure action.  That action was ultimately dismissed, but the original note and mortgage were left in the circuit court clerk’s possession.

Nationstar then began servicing the loan, and ultimately filed a foreclosure action of its own.  Nationstar did not take possession of the Note, but instead moved the trial court to take judicial notice of the originals and transfer them to the new action.  Ultimately, the trial court entered judgment of foreclosure for Nationstar, and the homeowner appealed.

On appeal, the Second District held that Nationstar had failed to establish standing because it did not show it possessed the original note.  The court rejected Nationstar’s contention that it “was using the clerk [of the court] as bailee to continue possessing the note on its behalf,” holding that Nationstar’s “unilateral decision to leave the original note and mortgage with the trial court does not establish possession of the note.”

This case demonstrates another of the many ways in which lenders and trial courts often misunderstand the issue of standing.  We at DPW Legal regularly handle appeals for homeowners who have found themselves with a foreclosure judgment against them.  If you find yourself in such a scenario, feel free to contact us so we can help you determine whether you might have a basis for appeal.