Stomar, Inc. v. Lucky Seven Riverboat Company, LLC

• Court: Florida District Court of Appeals
• Writing for the Court: FARMER, J.
• Citation: Stomar, Inc. v. Lucky Seven Riverboat Company, LLC, 821 So.2d 1183 (Fla. App. 2002)
• Decision Date: 24 July 2002
• Docket Number: No. 4D01-1713.,4D01-1713.
• Parties: STOMAR, INC., Appellant, v. LUCKY SEVEN RIVERBOAT COMPANY, L.L.C., an Alabama limited liability company; Matthew Walker; William B. Taylor, III; Thomas Bender and Joseph A. Ollinger, Appellees.

821 So.2d 1183

STOMAR, INC., Appellant, v. LUCKY SEVEN RIVERBOAT COMPANY, L.L.C., an Alabama limited liability company; Matthew Walker; William B. Taylor, III; Thomas Bender and Joseph A. Ollinger, Appellees.

No. 4D01-1713.

District Court of Appeal of Florida, Fourth District.

July 24, 2002.

James W. Stoup of James W. Stoup, P.A., Fort Lauderdale, for appellant.

A. Clay Rankin, III and Jaime W. Betbeze of Hand Arendall, LLC, Mobile, Alabama and Alexander F. Vitale of Holland and Knight, LLP, Fort Lauderdale, for appellees.

FARMER, J.

In this case we consider an appeal dismissing a Florida ship broker's suit against the nonresident seller of a vessel and certain individual defendants associated with the business entity owning the vessel. For now, we reverse only the trial court's dismissal of the business entity and remand the case to the trial court to reconsider its decision as to the individual defendants in light of intervening authority.

We begin by noting that a trial court's ruling on a motion to dismiss based on a question of law is subject to de novo review. Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000). In Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), the court used a dual inquiry for determining whether long arm personal jurisdiction exists. The trial court must first decide whether the complaint alleges sufficient jurisdictional facts to bring the action within Florida's long arm jurisdiction statute.¹ Second, the court must determine whether the non-resident lacks sufficient contacts with Florida such that the maintenance of the suit here would offend traditional notions of fair play and substantial justice because defendant could not reasonably anticipate being sued in Florida. 554 So.2d at 500; accord Execu-Tech, 752 So.2d at 584; World Class Yachts, Inc. v. Murphy, 731 So.2d 798, 799 (Fla. 4th DCA 1999); see also World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287, 100 S.Ct. 559 (1980). Plaintiffs amended complaint satisfies both prongs of the Venetian Salami inquiry with regard to Lucky Seven.

First, the allegations are sufficient to bring Lucky Seven within the ambit of Florida's long-arm statute.² See § 48.193(1)(g), Fla. Stat. (2000). Plaintiff alleged that Lucky Seven breached the parties' brokerage agreement by failing to pay the commission owed to plaintiff in Florida. See Poe v. Marine Group of Palm Beach, Inc., 760 So.2d 273, 274 (Fla. 4th DCA 2000); Tallmadge v. Mortgage Fin. Group, Inc., 625 So.2d 1313, 1313 (Fla. 4th DCA 1993).

The record of the evidentiary hearing with conflicting facts resolved in favor of the trial court's decision also shows facts sufficient to meet the provisions of section 48.193(1)(g) to establish jurisdiction over Lucky Seven. The contract, a brokerage agreement, in effect required payment in Florida. Thus the record sufficiently indicates that Lucky Seven is accused of breaching a contract in this state by failing to make payment here and thereby subjected itself to the jurisdiction of Florida courts. Poe, 760 So.2d at 274; Tallmadge, 625 So.2d at 1313; see also Venetian Salami, 554 So.2d at 503 (foreign corporation who hired Florida collection agency to assist in collecting delinquent accounts but failed to pay agreed upon fee subject to Florida long arm jurisdiction).

The constitutional prong of the Venetian Salami standard is also satisfied with regard to Lucky Seven, for the record contains evidence of sufficient minimum contacts between Florida and Lucky Seven to satisfy due process concerns. "Factors that go into determining whether sufficient minimum contacts exist include the foreseeability that the defendant's conduct will result in suit in the forum state and the defendant's purposeful availment of the forum's privileges and protections." Taskey v. Burtis, 785 So.2d 557, 559 (Fla. 4th DCA 2001). There is no question from the evidence that Lucky Seven availed itself of the privilege of conducting business activities in Florida through plaintiff. As we stated in Tallmadge:

"It is reasonable to conclude that a party hiring an agent under these circumstances [a brokerage agreement] would expect to be haled into court in this state on a breach of contract claim for nonpayment [of the brokerage commission]... [R]etaining a Florida agent to perform services in this state is sufficient to meet due process concerns in an action for nonpayment for the services performed there."

625 So.2d at 1314. See, e.g., Offer v. Arison, 671 So.2d 193 (Fla. 4th DCA 1996) (holding that plaintiff showed sufficient facts to constitute minimum contacts with forum to satisfy due process where Georgia resident sought Florida yacht broker's assistance in buying yacht but then bought boat with aid of other Florida residents thereby excluding the plaintiff from a substantial commission fee).

Lucky Seven argues that its contacts with Florida are insufficient because the mere execution of a contract with a Florida resident and failure to make payment in Florida are not constitutionally sufficient. See Venetian Salami, 554 So.2d at 501, 503 (explaining that a nonresident's contract with a Florida resident alone, or the mere failure to pay money in Florida, cannot automatically establish sufficient minimum contacts to warrant the exercise of long arm jurisdiction). In this case, however, there was more than a mere failure to make payment in Florida. Actually the brokerage contract effectually required plaintiff to render substantial services in Florida on behalf of the nonresident owner in the marketing and negotiation of the sale of the vessel which was the object of the brokerage agreement. As the Venetian Salami court noted:

"The Court long ago rejected the notion that personal jurisdiction might turn on `mechanical' tests or on `conceptualistic... theories of the place of contracting or of performance.' Instead, we have emphasized the need for a `highly realistic' approach that recognizes that a `contract' is `ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.' It is these facts—prior negotiations and contemplated future consequences, along with terms of the contract and the parties' actual course of dealing—that must be evaluated in determining wether the defendant purposefully established minimum contacts within the forum."

554 So.2d at 501 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Lucky Seven had sufficient contacts with this state, including more than a mere obligation to make payment in Florida. Lucky Seven hired plaintiff to perform brokerage services on its behalf in Florida, including negotiations, for the purpose of selling Lucky Seven's vessel here. The circuit court properly had jurisdiction over Lucky Seven and erred in dismissing the case on that basis.

We now turn to the dismissal of the individual def...