Metnick & Levy, P.A. v. Seuling

• Decision Date: 12 November 2013
• Docket Number: No. 4D12–3055.,4D12–3055.
• Citation: 123 So.3d 639
• Court: Florida District Court of Appeals
• Parties: METNICK & LEVY, P.A., Appellant, v. Barbara SEULING and Law Offices of Anthony J. Pirrotti, P.C., Appellees.

123 So.3d 639

METNICK & LEVY, P.A., Appellant,

v.Barbara SEULING and Law Offices of Anthony J. Pirrotti, P.C., Appellees.

No. 4D12–3055.

District Court of Appeal of Florida, Fourth District.

Oct. 2, 2013.

Rehearing Denied Nov. 12, 2013.

Peter A. Dyson of Metnick, Levy & Dyson, Delray Beach, for appellant.

Anthony J. Pirrotti of Law Offices of Anthony J. Pirrotti, P.C., Ardsley, New York for appellee, Law Offices of Anthony J. Pirrotti, P.C.

PER CURIAM.

The primary question in this case is one of personal jurisdiction. The circuit court dismissed the case against two defendants. We reverse as to one defendant, holding that the record reflects adequate long-arm jurisdiction over a breach of contract claim; we affirm as to a second defendant who was sued for tortious interference with a contract, because the complaint below failed to demonstrate the existence of long-arm jurisdiction.

Barbara Seuling, a New York resident, was seriously injured in an automobile accident in Vermont by a Vermont resident who was driving while intoxicated. Based on a referral from her niece, Seuling retained appellant, a law firm, to represent her; a member of the law firm is admitted to the New York bar. After Seuling made telephone contact with the law firm, a paralegal from the firm sent her a retainer agreement, which she signed and returned to appellant's office in Delray Beach, Florida.

The law firm negotiated with Liberty Mutual Fire Insurance Company and the company agreed to settle the case at its policy limit of $100,000. Since Seuling was unhappy that her recovery would be reduced by the law firm's fee and costs, and a Medicare lien, she refused to sign the law firm's release and instead hired New York attorney Anthony J. Pirrotti; Pirrotti, in turn, told the law firm that it had been discharged from Seuling's case and that it would be entitled to “quantum meruit” for services performed. Seuling then settled the case with Liberty Mutual and promised that she “would hold Liberty Mutual harmless for any fees owed to” the law firm.

In Florida, the law firm sued Seuling for breach of contract and Pirrotti for tortious interference with a contract.¹ Seuling and Pirrotti moved to dismiss the complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, and failure to state a cause of action. At a hearing on the motions, Pirrotti appeared by telephone and argued that Seuling lacked sufficient minimum contacts with Florida to support personal jurisdiction over her; in response, the circuit judge then discussed this issue with the lawyers. Later, in a handwritten portion of an order on the motions, the court dismissed the case for “improper venue.” ²

Although the court's order refers to “venue,” we believe that the primary basis for the court's ruling was a lack of personal jurisdiction, an issue argued at the hearing and briefed on appeal.

If the court had personal jurisdiction over the defendants, then venue would have been proper. “Venue refers to the geographical area, that is, the county or district, wherein a cause may be heard or tried.” Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, 295 So.2d 314, 315 (Fla. 1st DCA 1974). Where a defendant is a Florida resident, section 47.011, Florida Statutes (2012), dictates that a cause of action may be brought in a county “where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” However, section 47.011's mandate does not apply to nonresidents. See id. (“This section shall not apply to actions against nonresidents.” (emphasis added)). As a result, “[b]y removing nonresidents from the scope of the legislatively created venue privilege, a nonresident over whom personal jurisdiction can be obtained consistent with constitutional considerations can, at a plaintiff's election, be sued in any county in this state, subject only to the doctrine of forum non conveniens.” Holton v. Prosperity Bank of St. Augustine, 602 So.2d 659, 662 n. 2 (Fla. 5th DCA 1992). Thus, if the circuit court had personal jurisdiction over Seuling and Pirrotti, venue would have been proper in Palm Beach County, where the suit was filed.

Turning to the jurisdictional inquiry, in Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989), the Supreme Court established a two-step inquiry for determining whether a Florida court has personal jurisdiction over a nonresident. Under this procedure,

[a] court must first determine whether sufficient facts have been alleged to bring the action within the ambit of Florida's long-arm statute. If the statute applies, the court must then determine whether there are sufficient “minimum contacts” on the part of the defendant to satisfy due process requirements.

Caiazzo v. Am. Royal Arts Corp., 73 So.3d 245, 250 (Fla. 4th DCA 2011) (footnote omitted). The “minimum contacts” inquiry ensures compliance with due process requirements so that “maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)) (internal quotations omitted).

Stated another way, to satisfy the minimum contacts requirement for purposes of personal jurisdiction a defendant's contacts (1) must be related to the plaintiff's cause of action or have given rise to it, (2) must involve some act by which the defendant has purposefully availed itself of the privilege of conducting activities within the forum, and (3) the defendant's contacts with the forum must be such that the defendant should reasonably anticipate being haled into court there.

Corporacion Aero Angeles, S.A. v. Fernandez, 69 So.3d 295, 299 (Fla. 4th DCA 2011).

With respect to Seuling, the allegations of the complaint were sufficient to bring the case within the ambit of the long-arm statute. Under section 48.193(1)(g), Florida Statutes (2012), “a person submits himself to the jurisdiction of this state by ‘[b]reaching a contract in this state by failing to perform acts required by the contract to be performed in this state.’ ” Hartcourt Cos. v. Hogue, 817 So.2d 1067, 1070 (Fla. 5th DCA 2002) (quoting § 48.193(1)(g), Fla. Stat. (1999)). “Failure to pay a contractual debt where payment is due to be made in Florida is sufficient to satisfy Florida's long-arm provision that refers to contractual acts ‘required’ to be performed in Florida.” Global Satellite Commc'n Co. v. Sudline, 849 So.2d 466, 468 (Fla. 4th DCA 2003). “[W]hen a written contract fails to specify the place where payments are to be made, a cause of action for failure to pay is properly brought in the county where the plaintiff has its principal place of business.” Sunshine Yacht Sales, Inc. v. Bob Anslow Yacht Sales, Inc., 669 So.2d 342, 344 (Fla. 3d DCA 1996) (quoting Ryan v. Mobile Commc'ns Enters., Inc., 594 So.2d 845, 846 (Fla. 2d DCA 1992)).

Here, “[s]ince no place of payment was specifically designated, the effect of the contract [i]s that the place of payment [i]s the Florida office” of the law firm, placing Seuling within the ambit of Florida's long-arm statute. Armaly v. Practice Mgmt. Assocs., Inc., 533 So.2d 920, 921 (Fla. 2d DCA 1988); see, e.g., Michael Schiffrin & Assocs., P.A. v. Koraly, 957 So.2d 655, 658 (Fla. 3d DCA 2007) (holding that where defendant/client failed to pay a contingency fee, and the agreement does not specify the location of payment, venue is proper at the plaintiff/law firm's principal place of business).

Having concluded that, as to Seuling, the complaint alleged sufficient facts to bring the action within the ambit of the long-arm statute, we turn next to the minimum contacts aspect of the Venetian Salami analysis. “Even where there is facial jurisdiction under the Florida long arm statute, the party over which jurisdiction is asserted must have had sufficient minimum contacts with Florida to satisfy due process requirements.” Lakewood Pipe of Texas, Inc. v. Rubaii, 379 So.2d 475, 477 (Fla. 2d DCA 1979) (citing Rebozo v. Washington Post Co., 515 F.2d 1208 (5th Cir.1975); Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla. 1st DCA 1977)). “It is not enough that a foreign defendant merely contract with a Florida resident.” Wash. Capital Corp. v. Milandco, Ltd., 695 So.2d 838, 841 (Fla. 4th DCA 1997); see, e.g., Osborn v. Univ. Soc'y, Inc., 378 So.2d 873, 874 (Fla. 2d DCA 1979) (contract with Florida resident to furnish consulting services in an unspecified location insufficient to establish personal jurisdiction). Rather, the plaintiff must demonstrate that the “defendant has availed itself of the privilege of doing business in Florida or has committed acts with an effect in Florida such that it would anticipate being haled into Florida's courts.” Hilltopper Holding Corp. v. Estate of Cutchin, 955 So.2d 598, 601 (Fla. 2d DCA 2007) (citing World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Res. Healthcare of Am., Inc. v. McKinney, 940 So.2d 1139, 1141 (Fla. 2d DCA 2006)).

While the mere act of contracting in the forum state is insufficient to satisfy due process, Aluminator Trailers, L.L.C. v. Loadmaster Aluminum Boat Trailers, Inc., 832 So.2d 822, 823 (Fla. 2d DCA 2002), “the exercise of jurisdiction may be proper where [the] out-of-state defendant enters into a contract with a forum-state party ‘for substantial services to be performed in Florida.’ ” EOS Transport Inc. v. Agri–Source Fuels LLC, 37 So.3d 349, 354 (Fla. 1st DCA 2010) (quoting Bohlander v. Robert Dean Assocs. Yacht Brokerage, Inc., 920 So.2d 1226, 1228 (Fla. 3d DCA 2006)).

For example, in Tallmadge v. Mortgage Finance Group, Inc., 625 So.2d 1313 (Fla. 4th DCA 1993), this Court found a California resident to have exhibited sufficient “minimum contacts” to satisfy due process after he...