Corporacion Aero Angeles v. Jaime Gaston Fernandez & Fernandez Aviation Llc

• Decision Date: 29 June 2011
• Docket Number: No. 4D09–4997.,4D09–4997.
• Citation: 69 So.3d 295
• Court: Florida District Court of Appeals
• Parties: CORPORACION AERO ANGELES, S.A., Appellant,v.Jaime Gaston FERNANDEZ & Fernandez Aviation, LLC, Appellees.

69 So.3d 295

CORPORACION AERO ANGELES, S.A., Appellant,

v.Jaime Gaston FERNANDEZ & Fernandez Aviation, LLC, Appellees.

No. 4D09–4997.

District Court of Appeal of Florida, Fourth District.

April 20, 2011.Opinion Denying Rehearing June 29, 2011.

Ricardo J. Cata and Ronnie Guillen of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Miami, for appellant.Joseph S. Shook, Coral Gables, for appellees.WARNER, J.

The appellant, a Mexican corporation, challenges a trial court's order denying its motion to dismiss for lack of personal jurisdiction in a breach of contract action for failure to pay a commission on the sale of the corporation's airplane. The trial court supported its denial on the ground that the plaintiff, a Florida broker, was instrumental in finding a buyer for the airplane and received some materials in Florida, which the court found sufficient to confer jurisdiction. We reverse, because these reasons were insufficient to show minimum contacts by the corporation with Florida to support personal jurisdiction.

This case arises out of the breach of an oral brokerage agreement for the sale of a jet owned by Aero Angeles, a Mexican Corporation. The plaintiff, Jaime Gaston Fernandez, claims that he was not paid a commission in connection with the sale and filed suit seeking damages from Aero Angeles. The corporation contends that it did not enter into a contract to pay him a commission.

Aero Angeles owned a Falcon 900B jet, which was its only asset, according to Antonio Ortiz Palero, the general director of Aero Angeles and also the pilot of the aircraft. The corporation itself was owned by a Mexican national who used the jet primarily for personal use. The jet was headquartered in Mexico and was never offered for charter flights to Florida or for Florida residents. Palero testified that the company had no type of business in Florida. The company did not have employees, offices, phone listings, bank accounts, leases or sales in Florida. It did not engage in business in Florida and did not register to do business in the state. It did not have an agent in Florida for service of process and never paid Florida taxes. The company did not bring paying passengers to Florida.

When the owner of Aero Angeles decided to purchase a new aircraft, he directed Palero to sell the Falcon. Palero contacted Fernandez about selling the aircraft, although he testified that Fernandez was only one of many persons who were contacted about the jet. Palero testified that the company would not engage an exclusive broker, nor would its owner agree to pay a commission. Instead, the owner expected a certain price, and anything over that amount could be kept by the broker. Essentially, Fernandez testified to the same agreement, but he testified that his agreement regarding the commission was between him and Palero, because Palero would be splitting the commission with Fernandez. In fact, according to Fernandez, Palero told him to give a net price to the owner of $17,000,000, and he and Fernandez would split the amount above that price. Fernandez also claimed that he obtained the exclusive listing for the aircraft from Palero.

Fernandez testified that he approached several buyers in Florida and advertised the plane in national magazines. Palero sent him pictures of the plane to use in the advertising. Initially Fernandez obtained an offer of $17,000,000 for the plane but the owner rejected the offer. Later, Palero received another call from Fernandez that certain Canadian clients wanted to see the plane. Fernandez received permission from Palero to show the plane to the clients in Mexico. The Canadian clients then sent Fernandez $25,000 for expenses to view the airplane in Mexico. Most of these funds were eventually returned to the buyers.

After viewing the plane in Mexico, the buyers placed a $500,000 deposit on a contract for sale, which deposit was held by an Oklahoma escrow agent. Without Fernandez being present, Palero met with the Canadian buyers in Montreal and worked out a contract. Other brokers or salesmen were involved. On behalf of the owner, Palero accepted a purchase price of $18,575,000. The $575,000 was to be for Fernandez or the other brokers. The sale eventually closed in Canada. Neither the buyer nor the other brokers paid Fernandez the commission.

Several years later Fernandez sued Aero Angeles for breach of contract for failure to pay him a commission. To establish jurisdiction, he alleged that Aero Angeles had breached a contract by failing to pay the commission to Fernandez in this state. He also detailed his efforts to market the plane in Florida and his execution of a contract of sale in Florida. The corporation moved to dismiss, and the court held an evidentiary hearing on the issue.

After hearing the witnesses, the court determined that Palero and Fernandez had some discussions regarding making a sale of the aircraft. Palero ultimately told Fernandez that he wanted $18,000,000 for the plane, and anything over that would be for Fernandez or would be a private split between Palero and Fernandez. The court found that Fernandez had authority to sell the aircraft, introduced the eventual buyer to the seller, and received $25,000 [from the buyers] in Florida for the purposes of showing the aircraft. The court concluded that because Fernandez was a Florida broker, these contacts were sufficient to provide jurisdiction. Aero Angeles appeals the determination of jurisdiction.

We review a trial court's denial of a motion to dismiss for lack of personal jurisdiction using the de novo standard. See Wendt v. Horowitz, 822 So.2d 1252, 1256–57 (Fla.2002). However, where “the trial court's decision is based on live testimony, the appellate court defers to the trial court's determination as to the credibility of witnesses.” Evans v. Thornton, 898 So.2d 151, 152 (Fla. 4th DCA 2005). Thus, with respect to the determination of facts, we defer to the trial court. With respect to the application of those facts to the law, we review de novo.

In Stomar, Inc. v. Lucky Seven Riverboat Co., 821 So.2d 1183, 1185 (Fla. 4th DCA 2002), we explained the dual inquiry required to make a jurisdictional determination under Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989):

The trial court must first decide whether the complaint alleges sufficient jurisdictional facts to bring the action within Florida's long arm jurisdiction statute. Second, the court must determine whether the non-resident lacks sufficient contacts with Florida such that the maintenance of the suit here would offend traditional notions of fair play and substantial justice because defendant could not reasonably anticipate being sued in Florida.

(footnote omitted). Here, the complaint alleged that Aero Angeles breached a contract by failing to pay Fernandez a commission in this state, thus bringing the action within section 48.193(g) of the Florida long-arm statute: “Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.” Whether the trial court found that Aero Angeles agreed to pay Fernandez a commission is subject to debate. The trial court found, consistent with both the testimony of Fernandez and Palero, that the owner would seek a set price ($18,000,000 according to the trial court), and Fernandez and Palero would split any money obtained above that figure. We question whether such an agreement amounts to one between the corporation and Fernandez. Nevertheless, for purposes of this opinion we will assume that this constituted a contract between the corporation and Fernandez to pay a commission.

Where no place of payment is designated in a contract, payment is presumed to be made at the residence of the creditor. See Global Satellite Commc'n Co. v. Sudline, 849 So.2d 466, 468 (Fla. 4th DCA 2003). Fernandez lives in Florida. Therefore, Fernandez has satisfied the first prong of the jurisdictional analysis.

The second prong requires a determination as to whether the non-resident has sufficient minimum contacts to bring the action in the forum state. The trial court made no analysis of the contacts of the corporation to Florida which would bring it within the minimum contacts. It merely listed the contacts that the broker has with the state. In essence, because a Florida broker sold the airplane, the court found sufficient jurisdiction in Florida. We disagree.

Accepting the trial court's finding that a contract existed, the contract the court accepted was a contract to sell a Mexican plane to a Canadian buyer. When Fernandez'...