BELZ INVESTCO v. GICSA

• Citation: 721 So.2d 787
• Decision Date: 09 December 1998
• Docket Number: No. 97-2448.,97-2448.
• Parties: BELZ INVESTCO LIMITED PARTNERSHIP, a Tennessee limited partnership, d/b/a Peabody Hotel Group, Appellant, v. GROUPO IMMOBILIANO CABABIE, S.A. a/k/a GICSA, and Elias Cababie a/k/a Elias Cababie Daniel, an individual, Appellees.
• Court: Florida District Court of Appeals

721 So.2d 787

BELZ INVESTCO LIMITED PARTNERSHIP, a Tennessee limited partnership, d/b/a Peabody Hotel Group, Appellant, v. GROUPO IMMOBILIANO CABABIE, S.A. a/k/a GICSA, and Elias Cababie a/k/a Elias Cababie Daniel, an individual, Appellees.

No. 97-2448.

District Court of Appeal of Florida, Third District.

December 9, 1998.

Robert J. Levine, and Suzan Jon Jacobs, for Appellant.

Hughes Hubbard & Reed, and Juan J. Farach, for Appellees.

BEFORE: COPE, GERSTEN, and SHEVIN, JJ.

GERSTEN, J.

Belz Investco Limited Partnership ("plaintiff"), appeals an order granting the appellees' motions to dismiss for failure to state a cause of action and lack of personal jurisdiction. We reverse with respect to both motions and remand with directions to the trial court to hold an evidentiary hearing on the personal jurisdiction issue.

The plaintiff sued Grupo Immobiliano Cababie, S.A. ("GICSA"), a foreign corporation, and its president, Elias Cababie Daniel ("Cababie"), for breach of contract, unjust enrichment, and an accounting, to recover a portion of the money it spent on behalf of the defendants in seeking approval for their alleged joint venture project in Miami Beach, Florida. In order to obtain jurisdiction over the foreign defendants, the plaintiff stated:

5. DEFENDANT GICSA and DEFENDANT CABABIE are subject to the jurisdiction of this Court pursuant to Florida Statutes Section 48.193 by virtue of doing the following acts:

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

(b) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state;

(c) Engaging in substantial and not isolated activity within this state.

The plaintiff followed these jurisdictional assertions with substantive allegations, applying each and every one to GICSA "and/or" Cababie.

Unimpressed with the plaintiff's use of the phrase "and/or" throughout the complaint, the trial court dismissed the suit against Cababie on the ground that the plaintiff failed to allege how Cababie acted in any way other than on behalf of GICSA. It also dismissed the suit against GICSA because the jurisdictional allegations lacked factual support.

Neither dismissal was appropriate. We first address Cababie's motion to dismiss for failure to state a cause of action.

The Florida Rules of Civil Procedure clearly permit a plaintiff to allege causes of action against multiple defendants. See Fla.R.Civ.P. 1.210(a). They also permit a plaintiff to state causes of action in the alternative, see Fla.R.Civ.P. 1.110(g); Ringler v. McVeigh, 109 So.2d 606 (Fla. 3d DCA 1959) (holding a complaint sufficient where the plaintiff stated the same cause of action against separate defendants either jointly or in the alternative to one another), even where the alternative allegations are completely inconsistent with one another. See Johnson v. Dep't of Health and Rehabilitative Services, 695 So.2d 927 (Fla. 2d DCA 1997).

A plaintiff, therefore, can make claims against a corporation for acts committed by its president within the scope of his employment and, in the alternative, pursue personal liability against the president, claiming that he acted in his individual capacity. See Johnson v. Dep't of Health and Rehabilitative Services, 695 So.2d at 930. Thus, although the plaintiff's allegations were arguably inconsistent, and inartistically plagued by the phrase "and/or," see Cochrane v. Florida East Coast Ry. Co., 107 Fla. 431, 145 So. 217 (Fla.1932), the complaint sufficed to survive Cababie's motion to dismiss for failure to state a cause of action. See Johnson v. Dep't of Health and Rehabilitative Services, 695 So.2d at 930; Ringler v. McVeigh, 109 So.2d at 607.

The trial court also erred in granting GICSA's motion to dismiss for lack of personal jurisdiction. It is well settled in Florida that in order for a nonresident defendant to be subject to this state's jurisdiction, two requirements must be met. See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989). First, the plaintiff must allege sufficient facts to bring the action within the ambit of the long-arm statute. Second, assuming that the first requirement has been met, the defendant must have sufficient minimum contacts with the state to satisfy federal due process requirements. See Venetian Salami Co. v. Parthenais, 554 So.2d at 502.

Procedurally, the plaintiff bears the initial burden of pleading sufficient facts to bring the action within the ambit of the long-arm statute. See Venetian Salami Co. v. Parthenais, 554 So.2d at 502; Washington Capital Corp. v. Milandco, Ltd., Inc., 695 So.2d 838 (Fla. 4th DCA 1997); AG Rotors, Inc. v. Haverfield Corp., 585 So.2d 429 (Fla. 3d DCA 1991). This may be done by alleging facts sufficient to show that the defendant's actions fit within one or more of the subsections of Florida's long-arm statute. See Washington Capital Corp. v. Milandco, Ltd., Inc., 695 So.2d at 841. It may also be done merely by tracking the language of the long-arm statute without pleading supporting facts. See Fla.R.Civ.P. 1.070(h); Venetian Salami Co. v. Parthenais, 554 So.2d at 502.

If the allegations in the complaint sufficiently establish long-arm jurisdiction, then the burden shifts to the defendant to contest the jurisdictional allegations in the complaint, or to claim that the federal minimum contacts requirement is not met, by way of affidavit or other similar sworn proof. See Venetian Salami Co. v. Parthenais, 554 So.2d at 502; Field v. Koufas, 701 So.2d 612 (Fla. 2d DCA 1997). If properly contested, the burden then returns to the plaintiff to refute the evidence submitted by the defendant, also by affidavit or similar sworn proof. See Venetian Salami Co. v. Parthenais, 554 So.2d at 502; Washington Capital Corp. v. Milandco, Ltd., Inc., 695 So.2d at 841; Unc Ardco, Inc. v. Luckner, 685 So.2d 29 (Fla. 4th DCA 1996).

The trial court can resolve the jurisdictional question solely on the basis of the affidavits, so long as they do not conflict. See Venetian Salami Co. v. Parthenais, 554 So.2d at 502; Washington Capital Corp. v. Milandco, Ltd., Inc., 695 So.2d at 841. If the affidavits do conflict, however, then the trial court must conduct a limited evidentiary hearing to resolve the factual dispute. See Venetian Salami Co. v. Parthenais, 554 So.2d at 503; Washington Capital Corp. v. Milandco, Ltd., Inc., 695 So.2d at 841; AG Rotors, Inc... v. Haverfield Corp., 585 So.2d at 430.

Here, the plaintiff properly pleaded the basis for jurisdiction by quoting subsections (1)(a), (1)(g), and (2) of the long-arm statute, Section 48.193, Florida Statutes (1997). GICSA countered with a motion to dismiss supported by an affidavit in which the affiant denied that the foreign corporation performs business, maintains offices or employees, or solicits any business in Florida. The plaintiff responded with an affidavit, in which the affiant claimed that the foreign corporation was part of a joint business venture in Florida, and therefore, did solicit and perform business within the State.

These affidavits conflict, and thus, a limited evidentiary hearing is warranted.¹See Venetian Salami Co. v. Parthenais, 554 So.2d at 503; Washington Capital Corp. v. Milandco, Ltd., Inc., 695 So.2d at 841; AG Rotors, Inc... v. Haverfield Corp., 585 So.2d at 430. The trial court erred in failing to conduct such a hearing.

Accordingly, the trial court's order dismissing the action against Cababie and GICSA is reversed and the case is remanded with directions to the trial court to conduct a limited evidentiary hearing on whether the court may exercise personal jurisdiction over GICSA. See Venetian Salami Co. v. Parthenais, 554 So.2d at 503; Washington Capital Corp. v. Milandco, Ltd., Inc., 695 So.2d at 841; AG Rotors, Inc... v. Haverfield Corp., 585 So.2d at 430.

Reversed and remanded with directions.

SHEVIN, J., concurs.

COPE, J., specially concurring.

I concur in the reversal of the judgment, but believe that it is unnecessary to remand for an evidentiary hearing as to appellee GICSA. The City of Miami Beach invited proposals for a new convention hotel. GICSA joined the Peabody Miami Beach Hotel Partnership, which submitted a proposal to build a Peabody Hotel. In the documents filed in this case by GICSA's president, the venture is described as follows:

Section F-Organization Form, Team Members, Personnel This proposal is being submitted by the Peabody Miami Beach Hotel Partnership (PMBH L.P.), consisting of three primary investment partners; Belz Enterprises which will also serve as the Developer, GICSA and Tom Billante (Mezza Notte, Inc.).

....

Mr. Martin S. Belz and John J. Dudas are authorized to negotiate on behalf of the partners. Mr. Martin S. Belz is authorized to bind on behalf of the partners.

....

2. GICSA (Grupo Inmobiliario Cababie S.A. De C.V.) is based in Mexico City, Mexico. GICSA is part of the Cababie family group of business which has been in operation for over 30 years. GICSA functions as a diversified real estate developer of property primarily in Mexico. Major projects developed by GICSA include: Torre Periferico Office Center, Corporative Blas Pascal Office Building and Zentro La Plaza Commercial Center all in Mexico. The principal Peabody Miami Beach team members from GICSA include: Elias Cababie Daniel, President; Abraham Cababie Daniel, Vice President, and Jesus Bujeda, Council for GICSA.

GICSA will serve as the primary investor in the Peabody Miami Beach (Please see Appendix for additional details).

In his letter to the City of Miami Beach, GICSA's president stated:

I am committing to invest $65 million in the development of the Peabody Miami Beach Hotel Project. I will own approximately 85% equity interest in the Project. The sources for my investment will include GICSA as well as our established banking and investment firm sources, if necessary.

....

We

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