Gahn v. Holiday Property Bond, Ltd., 2D01-5613.

• Decision Date: 09 August 2002
• Docket Number: No. 2D01-5613.,2D01-5613.
• Parties: Richard H. GAHN, Virginia A. Walker, John Sapanski and Elizabeth Sapanski, his wife, Michael Massey and Havalyn Massey, his wife, and Ardith Rutland, Appellants, v. HOLIDAY PROPERTY BOND, LTD. and HPB Management, Ltd., Appellees.
• Court: Florida District Court of Appeals

826 So.2d 423

Richard H. GAHN, Virginia A. Walker, John Sapanski and Elizabeth Sapanski, his wife, Michael Massey and Havalyn Massey, his wife, and Ardith Rutland, Appellants, v. HOLIDAY PROPERTY BOND, LTD. and HPB Management, Ltd., Appellees.

No. 2D01-5613.

District Court of Appeal of Florida, Second District.

August 9, 2002.

Rehearing Denied September 30, 2002.

Murray B. Silverstein of the Law Offices of Murray B. Silverstein, P.A., for Appellants.

Joseph W. Fleece, III, and Charles W. Gerdes of Holland & Knight LLP, St. Petersburg, for Appellees.

STRINGER, Judge.

Appellants challenge a nonfinal order denying their motion for attorney's fees and costs filed pursuant to section 57.105, Florida Statutes (2000). We reverse.

Background

Appellants are residents of Snell Isle in St. Petersburg, Florida. They filed suit in the underlying action seeking a declaration that Appellees' proposed use of property located on the isle is prohibited by the city zoning code. Appellees, Holiday Property Bond, Ltd., and HPB Management, Ltd. (collectively HPB), operate the Holiday Points Program, which is similar to a conventional time-share. Holiday Property Bond, Ltd., is a limited company organized under the laws of the Isle of Man, British Islands, and maintains its principal business office in Douglas, Isle of Man. HPB Management, Ltd., is a limited company organized under the laws of England and Wales and maintains its principal business office in New Market, Suffolk, United Kingdom. HPB's investors or "bondholders" earn points by purchasing bonds in the program which may be used for vacation stays at a variety of HPB resorts abroad and in Florida. The record establishes that there are presently ten Florida properties available to HPB bondholders.

The property in dispute, Stovalls Landing, is a recent HPB acquisition and is located on Snell Isle. HPB purchased the property from Mary Stovall with the assistance of Boca Raton attorney, Joel Feldman, and John Gower, a local realtor. HPB intends to renovate and use the property for short-term stays by its bond-holders. In their complaint¹ Appellants contend that this use of the property is inconsistent with St. Petersburg's zoning code.

Appellees moved to dismiss the complaint and to quash service of process alleging that they are not subject to personal jurisdiction. Appellees ultimately withdrew the motion, but not before Appellants had conducted substantial discovery and filed a motion for attorney's fees and costs. Prior to filing their motion, Appellants propounded an interrogatory requesting information concerning communications between HPB officers and anyone located in Florida. Appellees failed to timely answer the interrogatory, and on January 9, 2001, Appellants moved to compel a response. The circuit court granted the motion and entered an order on March 7, 2001, compelling Appellees' response. On that date, counsel for Appellees advised the circuit court by letter of Appellees' intent to answer the complaint, making it unnecessary for the court to rule on the issue of personal jurisdiction.

On December 7, 2001, the court denied Appellants' motion to tax fees and costs, finding that Appellees' motion to dismiss presented justiciable issues of fact and law. Because the record demonstrates that Appellees' objection to personal jurisdiction was supported neither by material facts nor by the application of existing law, the court abused its discretion in denying Appellants' motion for fees and costs.

Discussion

Section 57.105 Cost and Fee Awards

This court reviews an order denying a motion for attorney's fees and costs for an abuse of discretion. Dep't of Transp. v. Kisinger Campo & Assocs., 661 So.2d 58, 59 (Fla. 2d DCA 1995). Section 57.105 presently provides:

(1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or

(b) Would not be supported by the application of then-existing law to those material facts.

. . .

(3) At anytime in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, ... the assertion of any claim or defense, ... was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order which may include attorney's fees, and other loss resulting from the improper delay.

§ 57.105(1)(a), (b), (3).

The 1999 amendment to section 57.105 substantively changed the standard for awarding fees for baseless actions and defenses. Ch. 99-225, § 4, at 1406 Laws of Fla.; Forum v. Boca Burger, Inc., 788 So.2d 1055, 1060-61 (Fla. 4th DCA 2001), review granted, 817 So.2d 844 (Fla.2002). As the Fourth District noted in Boca Burger, cases interpreting the language of the former version of section 57.105 are now of little precedential value because the 1999 amendment altered the substantive standard for making fee determinations under the statute. Id. at 1061. Prior to the amendment, fees could only be awarded in cases where there was a "complete absence of a justiciable issue of either law or fact" in the nonmoving party's position. § 57.105(1), Fla. Stat. (1997). Fees may now be awarded under this statute if evidence establishes that the party or attorney knew or should have known that the claim or defense was (a) not supported by material facts or (b) not supported by the application of existing law. § 57.105(1)(a), (b), Fla. Stat. (2000). Therefore, in order to determine whether the trial court abused its discretion in denying Appellants' motion for fees, we must consider whether Appellees' motion to dismiss was supported by material facts or the application of existing law.

Long-Arm Jurisdiction & Minimum Contacts

In order to exercise personal jurisdiction over a nonresident defendant, the court must first determine whether the plaintiff's complaint alleges sufficient facts which bring the action within the purview of the applicable long-arm statute, in this case section 48.193(1)(a) and (2), Florida Statutes (2000). Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989); Mainland Transp., Inc. v. Dietz, 691 So.2d 642 (Fla. 2d DCA 1997). After considering the sufficiency of the allegations, the court must determine whether the nonresident defendant has sufficient minimum contacts with Florida so as to satisfy due process requirements. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)); Doe v. Thompson, 620 So.2d 1004 (Fla.1993). Minimum contacts are said to exist if the defendant's relationship and activity with the forum state (1) are related to the plaintiff's cause of action or have given rise to it, (2) involve some purposeful availment of the privilege of conducting business activity within the forum, and (3) are such that the defendant should reasonably anticipate being haled into court there. Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 631 (11th Cir.1996). The nonresident defendant who wishes to challenge personal jurisdiction may effectively shift the burden of establishing a sound basis for asserting jurisdiction back to the plaintiff by filing a sworn statement refuting the jurisdictional allegations of the complaint. Venetian Salami, 554 So.2d at 502.

In their motion to dismiss, Appellees argued that the long-arm statute requires that Appellants plead sufficient facts to establish a nexus between the acts alleged to support personal jurisdiction and the acts giving rise to the cause of action. We find this requirement satisfied by specific facts set forth in paragraphs eight through ten and twenty-one of the complaint. These paragraphs allege that Appellees are actively involved in the operation and management of resort properties located in Florida, including the subject property; that Appellee HPB Management, Ltd., is responsible for the developmental activities on the subject property; that as part of Appellees' development plans, they have exchanged correspondence with the City of St. Petersburg and the seller in an effort to procure permits for the redevelopment project; that Appellees retained a Florida realtor to locate the property and negotiate terms for its purchase; that Appellees were the contractual purchasers of the property; and that Appellees engaged a Florida engineer to draft proposed improvements to the property. In our view, the complaint is very specific concerning acts by Appellees which gave rise to the underlying dispute over the proposed use of the Stovalls Landing property. These allegations, which track Appellees' efforts to secure the property for use in their Holiday Points Program, also satisfy minimum contact requirements. The complaint alleges conduct demonstrating that Appellees purposefully availed themselves of the privilege of using Florida professionals to procure and develop Florida property intended to be offered to bondholders in their Holiday Points Program. Based on this conduct, it may reasonably be said that Appellees should have anticipated being haled into court in Florida for any action arising from their activities and efforts in procuring and developing the property for this intended...