BANCO INVERSION v. Celtic Finance Corp.

• Decision Date: 03 August 2005
• Docket Number: No. 4D03-3382.,4D03-3382.
• Parties: BANCO INVERSION, S.A. and Bayerische Hypo-Und Vereins Bank, AG, Appellants, v. CELTIC FINANCE CORPORATION, S.A., Appellee.
• Court: Florida District Court of Appeals

907 So.2d 704

BANCO INVERSION, S.A. and Bayerische Hypo-Und Vereins Bank, AG, Appellants, v. CELTIC FINANCE CORPORATION, S.A., Appellee.

No. 4D03-3382.

District Court of Appeal of Florida, Fourth District.

August 3, 2005.

Jack R. Reiter and Robin Corwin Campbell of Adorno & Yoss, LLP, Miami, for appellants.

Chris Keith, Fort Lauderdale, for appellee.

ON MOTION FOR REHEARING

STONE, J.

Appellants' motion for rehearing is denied. However, we withdraw our opinion of March 9, 2005, and substitute the following opinion in its place.

Banco Inversion, S.A., a Spanish company (Banco), appeals a non-final order denying a motion to dismiss for lack of long-arm jurisdiction. The plaintiff, Celtic, is a Panamanian corporation registered to do business in Florida. Its place of business is in Broward County. The company has never done business out of any other location. Its principal, Henry Forero, is a Florida resident.

Banco asserts that it is not subject to personal jurisdiction in Florida, that Florida lacks venue over Celtic's claims, and that the court also erred in denying Banco's motion to dismiss on forum non conveniens grounds.

Celtic's claims include breach of oral contract, quantum meruit, fraud, and interference with contract. Celtic contends that Banco, in June 1999, retained Celtic as a business consultant and to prepare for placing bonds to be issued by Banco and sold in Europe. According to Celtic, the parties entered into an oral agreement for services to be rendered by Celtic. Banco initially contacted Celtic by fax, and the agreement was later reached by telephone. Banco agreed to pay for consulting services at an hourly rate and to reimburse expenses. Celtic asserts that all payments were to be made to Celtic in Florida. The parties also initially agreed that Celtic would have exclusive rights to manage the offering.

From June through September 1999, Celtic provided more than 150 hours of consulting services at its Florida office, including holding extensive telephone conferences with Banco and received over 500 calls and faxes from Banco. It also consulted during two visits to Banco's offices in Europe. Celtic contacted and arranged for other U.S. financial service firms to participate with it, and also arranged for the bonds to be printed.

Subsequently, in October 1999, the parties executed a document referred to as a "letter agreement," signed in Spain, providing for Celtic's managing and coordinating bond dealers in a syndication to market the bonds. This brief letter agreement made no mention of the services rendered by Celtic pursuant to the initial oral contract.

In January of 2000, Bayerische Hypo-Und Vereins Bank, AG, a German company (HVB), purchased Banco, which resulted in its terminating the Celtic relationship. Celtic alleged that Banco fraudulently misrepresented to it that the forthcoming issuance of the bonds was certain. Celtic also alleged that HVB knew of, and tortiously interfered with, the Banco/Celtic agreements and that Banco intentionally withheld the fact that it was seeking to sell the company, which would obviate the need for the bond funding.

We conclude that the trial court did not err in finding Florida had personal jurisdiction over Banco, applying the two-step inquiry recognized in Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). Pursuant to Venetian Salami, the court must determine whether the complaint pleads jurisdictional facts in order to sufficiently "bring the action within the ambit of the [long-arm] statute." Id. If so, the court must then engage in the second step of the analysis and determine whether there exists minimum contacts between Florida and the non-resident or, essentially, whether the non-resident "should reasonably anticipate being haled into [Florida] court." Id. at 500 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). Where the defendant files affidavits in support of its position, the burden is on the plaintiff to show by affidavit the basis for jurisdiction. OSI Indus., Inc. v. Carter, 834 So.2d 362, 364 (Fla. 5th DCA 2003). This court reviews the trial court's denial of Banco's motion to dismiss de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002)

.

It must be noted that neither party sought to schedule an evidentiary hearing in the trial court to resolve any conflicts in their respective affidavits. Banco also does not raise trial court's the failure to hold an evidentiary hearing as an issue on appeal, although it does request in its brief that if this court does not dismiss, that we remand for an evidentiary hearing. There was a hearing at which the court considered the representations of counsel together with affidavits. There was no objection to this procedure.¹ The record reflects that Banco contacted Celtic, in Florida, and Celtic agreed to provide its services to Banco. It is further uncontested that, while Celtic traveled to Spain and rendered consulting services at Banco's Spanish offices, Celtic also logged extensive hours of consulting and performed other services from its Florida offices. Banco does not deny that Celtic may be entitled to compensation for the services rendered in Florida.

Section 48.193(1), Florida Statutes, provides that a non-resident of the state submits to the jurisdiction of a Florida court for any cause of action arising from a variety of acts taken within the state. These acts include:

(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state of having an office or agency in this state.

(b) Committing a tortious act within this state.

* * *

(g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.²

§ 48.193(1)(a)-(b), (g), Fla. Stat. (2003).

Celtic, by pleading and affidavit, asserts breach of an oral contract, an agreement to make payments (including an hourly rate for senior advisors), an agreement to reimburse expenses, and failure to pay. Celtic asserts that the agreement called on it to perform services which, as contemplated, it performed in Florida and elsewhere, involving numerous contacts by telephone and fax with Banco, meetings with third parties, and other preparations for the bond issue, as well as Banco's failure to pay. Payment of these services were to be made in Florida, and there is no indication that it was payable anywhere other than Florida. See, e.g., Unger v. Publisher Entry Serv., Inc., 513 So.2d 674 (Fla. 5th DCA 1987)

; Pellerito Foods, Inc. v. Am. Conveyors Corp., 542 So.2d 426 (Fla. 3d DCA 1989).

We recognize that although the complaint alleges breach of contract, it does not explicitly reference section (1)(g). However, this is not significant where the complaint otherwise alleges sufficient jurisdictional facts. See Stewart v. Julana Dev. Corp., 678 So.2d 1385 (Fla. 3d DCA 1996)

.

It is clear that, although failure to make payment, alone, is not sufficient to bring a breach of contract claim within the ambit of section (1)(g), the failure to make payment, taken together with other facts, here, of services performed in the state and which could reasonably be anticipated to be performed in this state, is sufficient to prove that the defendant breached a contract in Florida by "failing to perform acts required by the contract to be performed in this state." Venetian Salami; Armaly v. Practice Mgmt. Assoc., 533 So.2d 920 (Fla. 2d DCA 1988); Ganiko v. Ganiko, 826 So.2d 391 (Fla. 1st DCA 2002); Unger.

The trial court also did not err in finding that Banco had the requisite minimum contacts with Florida. Section 48.193(2), Florida Statutes, provides that "[a] defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity." In analyzing whether a non-resident has the requisite minimum contacts with a forum state to justify personal jurisdiction, courts should determine whether the non-resident's "conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp.,444 US. at 297,100 S.Ct. 559. In determining whether a non-resident satisfies the minimum contracts test, courts consider such factors as prior negotiations, expected future services, the contractual obligations of the parties, and the course of dealing between the parties. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

In Ben M. Hogan Co. v. QDA Investment Corp., 570 So.2d 1349, 1350 (Fla. 3d DCA 1990), Hogan, an Arkansas corporation, contacted QDA, an investment banking firm doing business in Florida. The two agreed that QDA would assist Hogan in seeking financing to broker a two million dollar promissory note, possibly to foreign investors. Hogan maintained a relationship with the Florida firm through telephone calls, letters, and faxes. Id. The Third District affirmed the lower court's denial of Hogan's motion to dismiss. Id. at 1350-51. Further, notwithstanding that the two litigants had agreed that QDA would focus a substantial part of its search for investors outside of Florida, the court recognized that QDA still performed services on behalf of Hogan in Florida. Id. at 1351. Therefore, the facts indicated that Hogan "purposefully availed itself of the privilege of conducting business in Florida and must now answer for the consequences of that privilege in a Florida court." Id.

In Industrial Casualty Insurance Company. v. Consultant Assocs., Inc., 603 So.2d 1355, 1356 (Fla. 3d DCA 1992), the appellant, a foreign corporation, contacted the appellee, a Florida corporation, for the purpose of obtaining its data conversion services. There, the appellant initially contacted the appellee at its...