Gerber Trade Finance, Inc. v. Bayou Dock Seafood Co., Inc., 3D04-2303.

• Decision Date: 28 December 2005
• Docket Number: No. 3D04-2303.,3D04-2303.
• Citation: 917 So.2d 964
• Parties: GERBER TRADE FINANCE, INC., a foreign corporation, Appellant, v. BAYOU DOCK SEAFOOD CO., INC., a foreign corporation, Appellee.
• Court: Florida Supreme Court

917 So.2d 964

GERBER TRADE FINANCE, INC., a foreign corporation, Appellant, v. BAYOU DOCK SEAFOOD CO., INC., a foreign corporation, Appellee.

No. 3D04-2303.

District Court of Appeal of Florida, Third District.

December 28, 2005.

Lash & Goldberg and Alan D. Lash and Lawrence Lambert, Miami, for appellant.

Carlton Fields and Allison Oasis Kahn, Miami, for appellee.

Before LEVY, GERSTEN, and FLETCHER, JJ.

LEVY, Judge.

Appellant, Gerber Trade Finance, Inc. ("Gerber"), a foreign company,¹ appeals from an Order dismissing its Complaint for Conversion and Civil Theft against the Appellee, Bayou Dock Seafood, Company ("Bayou"), a foreign company,² with prejudice on the ground that Florida lacks personal jurisdiction over Bayou. We reverse.

FACTS

Gerber financed several transactions to purchase frozen seafood products for J.A.D.E. Fisheries, Inc. d/b/a Ocean World Fisheries, U.S.A. ("J.A.D.E."), a Miami corporation. In turn, Gerber was granted a security interest over J.A.D.E.'s seafood inventory.³ After Gerber recorded its security interest, J.A.D.E. transferred the seafood to Krystal Clear Fisheries, Inc. ("Krystal Clear"), an alter ego of J.A.D.E. The seafood was subsequently transferred to Bayou and kept at a cold storage facility in Miami. Gerber claimed a security interest in the property and demanded its return from Bayou which refused.

Gerber filed its initial Complaint in Miami Dade County, Florida, alleging that Bayou committed tortious acts in Florida; specifically, Conversion, Civil Theft, and Fraudulent Transfer. Bayou moved to dismiss the Complaint for lack of personal jurisdiction, and attached the affidavit of its president, Edward Lee ("Lee"), who specified that Bayou does not conduct regular business activity in the State of Florida; that Bayou does not engage in substantial activity in Florida; and that Bayou does not maintain any offices or agency in Florida. In response, Gerber submitted the affidavit of its vice-president, Jeffrey Silverstein, who verified the allegations of the Complaint. Bayou then submitted a second affidavit from Lee wherein he acknowledged that Bayou agreed to take possession of the seafood in Miami, Florida, but denied the alleged acts were tortious. Specifically, Lee explained that Bayou was approached by Shantou Longfeng Foodstuff Co. ("Shantou") to hold the warehouse in Bayou's name.

The circuit court granted Bayou's Motion to Dismiss with prejudice, concluding that Bayou's contacts with Florida were isolated, limited, not continuous, and not systematic. Gerber filed a Motion for Rehearing and sought leave to amend its Complaint, but both were denied. Gerber appeals, claiming that the circuit court erred in dismissing its Complaint with prejudice for lack of personal jurisdiction over Bayou and denying its Motion to Amend its Complaint. Consequently, the issues before this Court are whether Gerber's Complaint alleging that Bayou committed acts of Conversion and Civil Theft within Florida satisfies Florida's long-arm statute, section 48.193(1)(b) and the constitutional minimum contacts requirement, and whether the circuit court should have allowed Gerber to amend its Complaint pursuant to Rule 1.190(a), to allege sufficient jurisdictional grounds.

PERSONAL JURISDICTION

In Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), the Supreme Court of Florida explained that in determining whether long-arm jurisdiction is appropriate, the court must first determine that the Complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida's long-arm statute; and if it does, the court must then consider whether sufficient minimum contacts are demonstrated to satisfy due process requirements. Id. at 502.

Florida Statutes, section 48.193, provides two categories of personal jurisdiction: general jurisdiction under section 48.193(2), which provides: "[a] defendant who is engaged in substantial and not isolated activity within [Florida], 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[,]" § 48.193(2), Fla. Stat. (2004), and specific jurisdiction under section 48.193(1)(b), which confers jurisdiction over any person who commits a tortious act within Florida. § 48.193(1)(b), Fla. Stat. (2004). In the instant case, Gerber alleged specific jurisdiction over Bayou under section 48.193(1)(b), claiming Bayou's commission of a tort in Florida. Bayou's position below, with which the circuit court agreed, was that Florida lacked jurisdiction because Bayou's action "was isolated limited, not continuous and not systematic."

We find that the trial court and Bayou erroneously relied upon the general jurisdiction standard where Gerber clearly alleged specific jurisdiction over Bayou. While it is true that under the general jurisdiction standard the defendant must be involved in substantial, not isolated, and continuous contacts within the State, see § 48.193(2), Fla. Stat. (2004), for specific jurisdiction, the plaintiff need only show that the defendant's contact within the State resulted in, among several options, a tortious act. § 48.193(1)(b), Fla. Stat. (2004).

In the instant case, the trial court found that Bayou contested the allegations in the Complaint via affidavit, and Gerber was unable to establish enough jurisdictional facts to bring the action within the ambit of Florida's long-arm statute. We find that Bayou's affidavits did not challenge Gerber's Complaint alleging specific jurisdiction in that Bayou committed tortious acts within Florida. Like its argument, Bayou's first affidavit incorrectly challenges Florida's general jurisdiction over Bayou. Bayou raised in its affidavit the fact that it does not maintain offices or an agency in Florida; that it does not conduct regular business activity in Florida; and that it does not engage in substantial and not isolated activity in Florida. Moreover, in its second affidavit, Bayou simply asserts legal conclusions that its act was not tortious. In fact, Lee, Bayou's president, admitted in his second affidavit dated May 17, 2004, that Bayou took title to the seafood in Miami, and kept it in a cold storage facility, in Bayou's name, in Miami. Bayou's position below, and again on appeal, was that Bayou merely took title to the seafood as a favor to Shantou.

On the undisputed facts, Bayou held the subject seafood in its name, in Miami, and refused Gerber's ownership claim and request to return the property. It is clear that Gerber alleged sufficient jurisdictional allegations to subject Bayou to personal jurisdiction in Florida courts under section 48.193(1)(b) to defend itself from a Conversion and a Civil Theft claim.

Additionally, we find that Gerber's Complaint established that...