No doubt family law disputes can result in some of the most acrimonious litigation. If France v. France, No. 5D11-1477, a decision handed down by Florida’s 5th DCA last week, is any indication, they can also result in highly complex issues of jurisdiction and conflicts of law among states.

Generally, if you’re injured while in Florida, due to negligent, reckless, or intentional conduct of someone else in Florida, Florida courts have jurisdiction, and Florida law applies. It becomes more complicated when the person who causes your injury is not in Florida at the time they do whatever it is that causes your injury. And what happens if that person is not only in another state at the time of the event that causes your injury, but he/she is in a state where it is perfectly legal and proper to engage in the conduct, even though it is unlawful in Florida?

The issue in France is even more complicated than that. The case involves Florida’s Security of Communications Act, § 934.03, Florida Statutes, which makes it illegal to record a telephone conversation without the consent of the other parties to the call. Under federal law, and in the majority of states, including North Carolina, it is not unlawful to record a telephone conversation in which you’re a participant, because only one party’s consent is necessary, so your consent counts.

But in a minority of states, including Florida, it is unlawful to record a telephone conversation unless every participant in the call consents. In France, the former husband sued his former wife for recording phone calls without his consent. He was in Florida during the calls. She was in North Carolina. The words she recorded were spoken in Florida, but recorded in North Carolina. His rights were unlawfully violated in Florida, but she acted lawfully according to North Carolina law.

Can he sue her in Florida? Maybe. The Fifth District said it felt constrained to find that the answer is yes, but the judges weren’t happy about it.

The court framed the issue as one of jurisdiction rather than of conflicts of law. Two showings are required before a Florida court can assert jurisdiction over a non-Floridian alleged to have injured a Florida resident through a negligent, reckless or intentional act or failure to act. The first requirement is to satisfy Florida’s long arm statue, which can be met if the person committed “a tortious act within” Florida. The second is to satisfy the constitutional requirement of having “minimum contacts” with the state, i.e., that the person acted in such a way that they could “reasonably have anticipated being haled into court” in Florida.   

The trial court in France dismissed the complaint based on its conclusion that the former wife had not committed a tortious act within Florida. To analyze that issue on appeal, the Fifth District looked to two decisions dealing with this issue from the 2nd DCA. In the first, Koch v. Kimball, 710 So. 2d 5 (Fla. 2d DCA 1998), the Second District said an insurance company employee who was in Georgia when she recorded a call with her supervisor, who was in Florida at the time, could be sued in Florida. Even though the tape recorder was in Georgia during the call, the court based its holding on case law saying words are captured where they are spoken, not where they are heard. So even though the employee was in Georgia, she committed a tortious act in Florida by recording words spoken in Florida.

In the second decision, Kountze v. Kountze, 996 So. 2d 246 (Fla. 2d DCA 2008), the 2nd DCA, sitting en banc, overruled Koch, and held that Florida courts did not have jurisdiction over a person who was in Nebraska while recording a phone call with his cousin, who was in Florida. That decision was based on concerns about the constitutionality of Florida asserting its police powers over persons in other states.

But 5 years before Koch was overruled by the 2nd DCA, in Acquadro v. Bergeron, a 2003 decision, the Florida Supreme Court said it approved of the holding in Koch in the course of holding that Florida’s long arm statute was satisfied where an out-of-state defendant made telephone calls into Florida in which she allegedly defamed the plaintiff.

In a footnote in Acquadro, the Florida Supreme Court said it “approve[d] the Second District’s decision in Koch because like [Wendt v. Horowitz, 822 So. 2d 1252, 1257 (Fla. 2002)] the decision held that a telephonic communication into Florida can constitute a tortious act.”

Based on that statement of approval, the Fifth District felt that it was bound to follow Koch, and find that the former wife’s conduct brought her within Florida’s long arm statute. But the judges made clear that if writing on a clean slate, they probably would have reached a different conclusion. The court certified conflict with Kountze, making it more likely that the Florida Supreme Court might take its own look at the issue.

The 5th DCA said the analysis in Wendt seems to support the opposite result in France, because in Wendt the Supreme Court said in order for a telephonic communication into Florida to confer jurisdiction, “the cause of action must arise from the communications,” and the cause of action in France arose from “the act of recording communications, not the communications themselves.” Maybe, but that seems like a strained reading of Wendt to me.

Wendt also cited Koch with seeming (though not explicit) approval, as an example of one of two lines of cases — the line of cases it ultimately agreed with. And the holding in Wendt is two-fold. First, a defendant doesn’t have to be in Florida to commit a tortious act in Florida.

Second, the defendant in that case was found to have committed a tortious act in Florida by negligently preparing documents while he was in Michigan based on the fact that he intended to, and did, send them to Florida. One could just as easily argue that the tortious act in that case didn’t arise from the communications themselves but from the negligent preparation of them (with the intent to send them to Florida), which occurred in Michigan, just as the 5th DCA intimated that the tort didn’t arise from the communications but from recording them.

It seems to me that the statement in Wendt about the tort arising from the communications was intended to address situations such as the following: An out-of-state defendant has business dealings with a Florida resident, and at a meeting in Texas, the defendant is alleged to have fraudulently induced the plaintiff to purchase property in Texas. After the contract is signed, the defendant participates in phone calls with the plaintiff while the plaintiff is in Florida, but the alleged fraud occurred before those calls took place. In that situation, the mere fact that the defendant called the plaintiff in Florida doesn’t give Florida courts jurisdiction over the defendant, because the tort was committed in Texas. 

And I think a different distinction can be made. What’s interesting is that while approving Koch in Acquadro, the court said it was doing so because the 2nd DCA had “held that a telephonic communication into Florida can constitute a tortious act.” On the other hand, the Supreme Court doesn’t seem to have adopted the underlying premise of Koch.

Recall that the logic of Koch was that interception of the call actually occurred in Florida because it’s where the words are spoken that matters, not where they’re heard. By contrast, in Acquadro and Wendt, the place where the words were heard is what mattered.

So it might be that although the Supreme Court agreed with the general principle in Koch that one can commit a tort in Florida over the phone, it might reach a different result if confronted with a situation squarely raising the issue of where a call is recorded.