Field v. Koufas
| Decision Date | 31 October 1997 |
| Docket Number | No. 97-01037,97-01037 |
| Citation | 701 So.2d 612 |
| Parties | 22 Fla. L. Weekly D2522 Sidney M. FIELD, Robert B. MacDonald, and Lawrence J. Edwards, Appellants, v. Cheryl KOUFAS, Appellee. |
| Court | Florida District Court of Appeals |
Nathan D. Goldman and Natalie S. Rosenberg of McGuire, Woods, Battle & Boothe, LLP, Jacksonville, for Appellants.
No appearance for Appellee.
The appellants, three individual defendants, challenge the trial court's nonfinal order denying their motion to dismiss the amended complaint for lack of personal jurisdiction. We reverse because the appellee failed to meet her burden of establishing long-arm jurisdiction pursuant to section 48.193, Florida Statutes (1995). Our decision does not affect the continuation of the suit against the two Florida corporations, which are not parties to this appeal. 1
This case arose as a result of the sale of the appellee and her husband's business on January 27, 1995. The appellee claimed that the business was sold to three individuals, the appellants, who reside in California. The court previously granted a motion to dismiss the initial complaint based on lack of personal jurisdiction over the appellants. The initial two-count complaint sought relief for breach of contract and an accounting.
The appellee amended the complaint, this time deleting the count for an accounting, retaining the count for breach of contract, unchanged, and adding a count for fraudulent inducement. The pertinent common allegations of the amended complaint include that each of the appellants own stock in each of the two Florida corporate defendants and serve as officers and directors of both corporations, and that the appellants "are subject to the jurisdiction of the courts of this state by virtue of their having operated, conducted, engaged in and carried on a business venture in this state, by virtue of their having breached a contract in this state by failing to perform acts required by the contract to be performed in this state, and by committing tortious acts within this state ... [and] are, therefore, specifically subject to jurisdiction in the State of Florida as provided in Fla. Stat. § 48.193(1)(a),(b), and (g)." The common allegations continue that pursuant to the agreement, the defendants
The count for fraudulent inducement asserts that in the course of negotiations leading to the agreement, "the individual Defendants specifically represented to Plaintiff that upon their purchase of the Plaintiff's stock, the business of the corporation would continue to be conducted in the State of Florida, ..., and payment would be promptly made to the Plaintiff." The appellee alleges that she would not have executed the agreement had the appellants truthfully disclosed that they had no intention of operating CMI in Florida or that they intended to divert CMI's accounts receivable to themselves or other entities. As a result of their false statements, she alleges that their relocation of the business to California and diversion of CMI's receivables to themselves or to other entities they controlled, caused her damage by not receiving her receivables or full compensation for her shares of stock in CMI. 2
The three affidavits filed by each of the appellants in support of their motion to dismiss controverted the facts alleged in the amended complaint. All three affiants swore that no representations were made prior to the signing of the agreement in California. Two of the affiants further swore that no representations were made that the business of CMI would continue to be conducted in Florida and that most of the business had not been conducted in Florida at the time of the execution of the agreement. The two swore that only one account was located in Florida at the time of the purchase and that arrangements had been made to sell that account around the time of the execution. They swore that it was the appellee's husband, not themselves, "who suggested and encouraged moving what little company operations existed in Florida to California." With respect to engaging in or conducting business in Florida, the affiants never conceded that they conducted any business in their personal capacity. Two admitted that they visited Florida once or twice before the agreement was signed, while the other swore he never visited the offices of CMI in Florida before the agreement was signed.
The appellee chose to rely on her three previously filed countervailing affidavits directed to the first motion to dismiss. The affidavit of the appellee remained silent as to any representations made by the appellants, much less the timing of any representations made. Another affiant, a former employee of CMI, swore that on a date which postdated the execution of the agreement, one of the appellants "represented that he, [and the other two individual defendants] would be keeping the companies in Florida." The third affiant, a certified public accountant, did not make any affirmations regarding any representations made before the agreement was executed. None of the opposing affidavits truly addressed the issue of the appellants' conducting or engaging in business personally in Florida.
In denying the motion, the trial court relied on the appellee's counsel's interpretation of Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), and Allerton v. State of Florida Department of Insurance, 635 So.2d...
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