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Becker v. Hooshmand3/12/2003
ly, facts were alleged that indicate that the defendant committed a tortious act within the state.
Florida courts have long recognized that a cause of action in tort arises where the injury to the plaintiff first occurs. See, e.g., Williams v. Goldsmith, 619 So. 2d 330 (Fla. 3d DCA 1993)(tortious interference with contract claim accrued where plaintiff suffered injury by loss of clients); see also Walt Disney World Co. v. Leff, 323 So. 2d 602 (Fla. 4th DCA 1975)(personal injury action accrued where injury occurred); Tucker v. Fianson, 484 So. 2d 1370 (Fla. 3d DCA 1986)(legal malpractice action accrued where asserted negligence impacted plaintiff's economic interest).
The Florida Supreme Court recently clarified this issue and noted that: In order to commit a tortious act in Florida, a defendant's physical presence is not required. Second, committing a tortious act in Florida under section 48.193(1)(b) can occur through the nonresident defendant's telephonic, electronic, or written communications into Florida. However, the cause of action must arise from the communications. Wendt v. Horowitz, 822 So.2d 1252 (Fla. 2002).
Furthermore, this court has previously held that committing a tortious act under Florida's long arm statute does not require that a physical tort occur in this state. See, e.g, Carida v. Holy Cross Hosp., Inc., 424 So. 2d 849 (Fla. 4th DCA 1982). (slanderous telephone conversations were sufficient.) Similarly, this court has concluded that mailing a letter into the State of Florida was sufficient to find that tortious conduct took place in the state. Silver v. Levinson, 648 So. 2d 241 (Fla. 4th DCA 1994). Additionally, this court has held that making a defamatory statement over the telephone constitutes the commission of a tortious act for purposes of Florida's long arm statute. Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So. 2d 716 (Fla. 4th DCA 1998). We find that the communications that form the basis of the allegations in this case are analogous to cases previously decided by this court and certainly fit within the recent Supreme Court's discussion of electronic communications. As a result, we conclude that the initial burden required under Venetian Salami was satisfied.
Next we turn to Becker's attempt to contest jurisdiction. Becker did submit an affidavit that contested the factual allegations of the complaint concerning jurisdiction. However, her affidavit was submitted ten days after the trial court ruled on the motion to dismiss. The trial court specifically commented on the lack of supporting affidavits in denying the motion based on the four corners of the complaint.
Whether or not Becker's untimely affidavit challenges the allegations relating to jurisdiction pursuant to Venetian Salami, the affidavit was not filed in a timely manner. The trial court could not properly have considered it and was correct in ruling on the motion based on the four corners of the complaint. As a result, we affirm the decision of the trial court in all respects.
AFFIRMED.
GUNTHER and MAY, JJ., concur.
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