Intego Software, LLC v. Concept Dev., Inc.

• Court: Florida District Court of Appeals
• Writing for the Court: KELSEY, J.
• Citation: Intego Software, LLC v. Concept Dev., Inc., 198 So.3d 887 (Fla. App. 2016)
• Decision Date: 25 July 2016
• Docket Number: No. 1D15–4082.,1D15–4082.
• Parties: INTEGO SOFTWARE, LLC d/b/a Critical Alert, Appellant, v. CONCEPT DEVELOPMENT, INC., Appellee.

198 So.3d 887

INTEGO SOFTWARE, LLC d/b/a Critical Alert, Appellant,

v.CONCEPT DEVELOPMENT, INC., Appellee.

No. 1D15–4082.

District Court of Appeal of Florida, First District.

July 25, 2016.

Kirsten L. Doolittle, Jacksonville, for Appellant.

Donald A. Mihokovich and Andrew McBride of Adams and Reese LLP, Tampa, for Appellee.

KELSEY, J.

Appellant, Plaintiff below, challenges the trial court's order dismissing with prejudice its breach of contract complaint against Appellee, Defendant, for lack of personal jurisdiction. We conclude that the uncontroverted jurisdictional allegations of Plaintiff's complaint were sufficient to establish personal jurisdiction over Defendant, and the trial court abused its discretion in refusing to allow Plaintiff to amend its complaint or its declarations in opposition to dismissal. Accordingly, we reverse.

Jurisdictional Allegations.

Plaintiff's complaint alleged that Plaintiff is a Florida corporation with a place of business in Jacksonville, Florida. The complaint alleged that Defendant, a California company, pursued business in Florida through numerous communications in writing and over the phone, and by its representatives' traveling to Florida to procure the business. The complaint alleged that the parties entered, and Defendant committed acts constituting a breach of, a written agreement for Defendant to engineer and construct water-resistant, two-way-communication nurse call devices for use in hospitals.

The parties' agreement was an exhibit to the complaint and thus part of the complaint for all purposes. Fla. R. Civ. P. 1.130(b) (“Any exhibit attached to a pleading shall be considered a part thereof for all purposes.”). The parties' agreement required that all notices to Plaintiff must be made at Plaintiff's Jacksonville, Florida address. Under the agreement, Defendant was required to provide deliverables to Plaintiff in Florida—initially prototypes, and ultimately finished, marketable products. Upon termination of the contract, Defendant was required to deliver to Plaintiff in Florida all records, documentation, plans, tools, and equipment relating to Plaintiff's business and the work performed under the agreement.

The complaint alleged that, although the agreement contemplated Defendant would deliver final products compliant with Plaintiff's specifications within 16 weeks, and Plaintiff paid Defendant $110,000, over a year passed without delivery of satisfactory marketable products. The complaint alleged that the deliverables Defendant provided to Plaintiff failed to comply with the agreement. When Plaintiff's attempts to discuss the problems failed, Plaintiff gave notice of termination and demanded a refund of its payments, ultimately filing suit seeking damages for lost profits, delays in marketing its product, injury to its reputation, and lost revenues.

Defendant's Challenge To The Jurisdictional Allegations.

Before answering the complaint, Defendant moved to dismiss it for lack of personal jurisdiction or, alternatively, forum non conveniens. Defendant denied engaging in business in Florida and denied that the contract was to be performed in Florida. Defendant asserted that it “only made two trips to Florida to meet with Plaintiff's employees but performed no services in Florida at those meetings.” Defendant did not deny the other jurisdictional allegations of the complaint.

In support of its motion to dismiss, Defendant filed the sworn affidavit of its Chief Executive Officer, denying Defendant had done any of the following in Florida:

With respect to Florida, [Defendant] does not and has not:

a. Owned any real or personal property in Florida;

b. Have an office or designated agent in Florida;

c. Have a Florida bank account;

d. Have a Florida property tax listing;

e. Registered to do business in Florida;

f. Have any employees in the state of Florida;

g. Carried on any business in Florida;

h. Earned any income performing services in the state of Florida;

i. Committed any tortious action in the state of Florida;

j. Agreed to be subject to the jurisdiction of the state of Florida or consented to venue in Florida;

k. Breached any contracts or agreements in Florida.

Plaintiff's Response Supporting Jurisdiction.

Plaintiff filed a response to Defendant's motion to dismiss, arguing that the uncontroverted jurisdictional allegations of the complaint were sufficient to establish jurisdiction and if they were not, the declarations of Plaintiff's president and its hardware engineer added facts supporting the exercise of jurisdiction. Neither of Plaintiff's two “declarations” was sworn or notarized.

In the first declaration, Plaintiff's president confirmed that Defendant's representatives traveled to Jacksonville, Florida, twice to negotiate the agreement and its terms, including deadline, schedule for deliverables, and cost. After one meeting, Defendant's president informed Plaintiff's president that he (Defendant's president) was meeting with another potential customer in the Jacksonville area. Thereafter, through multiple telephone conferences, Defendant's representatives solicited Plaintiff to expand the parties' contractual relationship to encompass additional work over a longer term. Defendant and its agents were in “constant communication ... via telephone, e-mail, telefax, and regular mail,” including “well over 100 e-mail communications and scores of phone calls to [Plaintiff's] employees in Florida concerning the device.” Defendant delivered to Plaintiff in Jacksonville, Florida, a list of technical requirements, a 3–D mechanical model, a plastic model of the circuit boards, and a call unit for testing. Plaintiff's president stated that the parties' agreement was negotiated in Plaintiff's Florida office and that he signed it in his Florida office. He asserted that the breach occurred in Florida “by virtue of Defendant's tender of totally defective deliverables to my Florida office.”

The second declaration filed with Plaintiff's response to Defendant's motion to dismiss was that of Plaintiff's hardware engineer. He repeated that Defendant and its agents were in constant communication with Plaintiff's employees during the entire 12–month course of performance under the agreement, and mostly with him as the employee most knowledgeable about the technical requirements of the project. He quantified the communications as encompassing well over 100 e-mail communications regarding the call device, many dealing with the engineer's belief that the design of the unit was flawed; and he maintained there were scores of phone calls. He also stated that Defendant delivered to Plaintiff's Jacksonville, Florida office “a list of the technical requirements, the 3D mechanical model, a plastic model of the circuit boards, as well as a unit for testing, all of which were defective in one way or another.”

The Hearing And The Dismissal With Prejudice.

At the very brief hearing on Defendant's motion to dismiss, the trial judge noted that she had not received Plaintiff's response or declarations. The docket reflects that they had been filed with the clerk and served on opposing counsel a week before the hearing. Plaintiff's counsel stated that she had e-mailed the judge's assistant to arrange direct delivery of a copy of the papers but did not hear back from the assistant. The judge acknowledged that there had been problems with e-mail delivery to her assistant and suggested counsel communicate by phone next time.

At this hearing, Defendant argued that Plaintiff's witness “declarations” were not valid because they were not made under oath or affirmation and therefore could not be considered at all. Although Plaintiff represented that the declarations could be refiled promptly in the correct form, and sought leave to amend them, Defendant argued that no amendment could be allowed because the unsworn declarations were a legal ity and therefore Plaintiff had in effect presented no evidence opposing dismissal, which required the trial court to dismiss without allowing amendment. Plaintiff's counsel acknowledged the “procedural deficiencies” in the declarations, because “they do not include the language, I declare under penalty of perjury.” Counsel offered to submit amended affidavits and requested leave to amend the complaint, but the trial court rejected Plaintiff's requests:

THE COURT: Your complaint is not a verified complaint, and you have not submitted any affidavit or declaration to traverse the allegations of the defendant's jurisdictional affidavit. The case law is clear that under the circumstance, I must grant the motion, and I do grant the motion.

....

[PLAINTIFF'S COUNSEL]: And that's with leave to amend?

THE COURT: No, ma'am. That is not. It is finding that there is no jurisdiction here in Florida. Obviously, there may be jurisdiction elsewhere. Thank you.

The trial court entered a final order of dismissal with prejudice, expressly without leave to amend.

Plaintiff moved for reconsideration, arguing it was an abuse of discretion to dismiss with prejudice where Plaintiff had demonstrated its ability and desire to amend to allege additional facts and to cure the technical defects in the declarations. Plaintiff argued in the alternative that the original complaint alleged sufficient jurisdictional facts to support the court's exercise of jurisdiction over Defendant. The trial court denied the motion for reconsideration.

Preservation And Standard Of Review.

On appeal, Plaintiff argues that the allegations of the complaint were sufficient to sustain Florida's exercise of personal jurisdiction over Defendant even without being amended to include the statements set forth in the unsworn witness declarations. Plaintiff also argues that it should have been permitted to amend its complaint as requested below, and the additional facts set forth in its witness declarations would bolster a finding that Defendant is subject to personal jurisdiction in Florida. Plaintiff raised the same issues and arguments below. We therefore find...