Swanky Apps, LLC v. Roony Invest & Fin.

• Decision Date: 17 April 2013
• Docket Number: No. 3D12–3032.,3D12–3032.
• Citation: 126 So.3d 336
• Parties: SWANKY APPS, LLC, a New York limited liability company; and Daren Hornig, Appellants, v. ROONY INVEST & FINANCE, S.A., a British Virgin Islands company, Appellee.
• Court: Florida District Court of Appeals

126 So.3d 336

SWANKY APPS, LLC, a New York limited liability company; and Daren Hornig, Appellants,

v.ROONY INVEST & FINANCE, S.A., a British Virgin Islands company, Appellee.

No. 3D12–3032.

District Court of Appeal of Florida,

Third District.

April 17, 2013.

Steven F. Samilow, P.A., and Steven F. Samilow, Boca Raton, for appellants.

Sacher, Zelman, Hartman, Paul, Beiley & Sacher, P.A., and Roy M. Hartman and Jorge R. Escobar, Miami, for appellee.

Before CORTIÑAS, ROTHENBERG and EMAS, JJ.

ROTHENBERG, J.

The plaintiff, Roony Invest & Finance, S.A. (“Plaintiff”), a British Virgin Islands company whose principal address is in Cyprus, filed suit against Swanky Apps, LLC (“Swanky”), a New York limited liability company, and Swanky's manager/chief operating officer, Daren Hornig (“Hornig”), a New York resident (collectively, “Defendants”). The Defendants appeal from a non-final order denying their Motion to Dismiss Complaint for Lack of Personal Jurisdiction and Forum Non Coveniens (“Motion to Dismiss”). We reverse.

The Plaintiff's complaint asserts claims against the non-resident Defendants based on alleged material misrepresentations made by Hornig that induced the Plaintiff to invest in Swanky. The issue in this appeal is whether the Defendants—a limited liability company and its manager—have sufficient minimum contacts with Florida to satisfy due process requirements where the only contacts the Defendants had with the state of Florida are as follows.

When Hornig was in New York, he accepted a phone call from the Plaintiff's representative, who was temporarily in Florida, to discuss the possibility of the Plaintiff investing in Swanky. The Plaintiff is not a Florida entity and the Plaintiff's representative is not a Florida resident. With Hornig's consent, the Plaintiff's representative remotely accessed Hornig's computer to view a PowerPoint presentation regarding Swanky. Thereafter, while Hornig was in New York and the Plaintiff's representative was temporarily in Miami Beach, they exchanged emails regarding the potential investment. The Plaintiff's representative sent and received emails from Hornig on his computer while temporarily in Florida. However, there is no indication in the affidavits filed in support of, or in opposition to, the Defendants' motion to dismiss for lack of personal jurisdiction that Hornig knew, or should have reasonably known, that the Plaintiff's representative was physically located in Florida when the emails were exchanged or when the Plaintiff's representative placed the call to Hornig or accessed Hornig's computer. Further, the agreement executed by the Plaintiff and Swanky in connection with the investment was not executed in Florida and the agreement and/or investment will have no impact on Florida or any of its residents.

We review a trial court's order denying the Defendants motion to dismiss for lack of personal jurisdiction de novo. Ferguson v. Estate of Campana, 47 So.3d 838, 842 (Fla. 3d DCA 2010).

[T]o determine whether personal jurisdiction exists over a non-resident defendant, a trial court generally conducts a two-step inquiry. First, the trial court must determine whether sufficient jurisdictional facts are alleged in the complaint such that [the] action falls within the ambit of Florida's long-arm statute, section 48.193, Florida Statutes. [Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002) ]; Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). In doing so, the court must strictly construe the statute in favor of the non-resident defendants. Blumberg v. Steve Weiss & Co., 922 So.2d 361, 363 (Fla. 3d DCA 2006) (citing Wendt, 822 So.2d at 1256). Second, the trial court must determine whether “sufficient minimum contacts exist between Florida and the defendant to satisfy due process requirements.” Id. at 364 (citing Wendt, 822 So.2d at 1256);Venetian Salami, 554 So.2d at 502.

“[D]ue process requires that the nonresident defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Pres–Kap, Inc. v. Sys. One, Direct Access, Inc., 636 So.2d 1351, 1352 (Fla. 3d DCA 1994). “In particular, the applicable due process test is whether the conduct of the nonresident defendant in connection with the forum state is such that the defendant could reasonably anticipate being haled into court there.” Id.

As to the first inquiry, we note that “ ‘committing a tortious act’ within Florida under section 48.193(1)(b)¹ can occur by making telephonic, electronic, or written communications into this State, provided that the tort alleged arises from such communications,” Wendt, 822 So.2d at 1253 (emphasis added), and under certain circumstances, such communications can also satisfy due process requirements. OSI Indus., Inc. v. Carter, 834 So.2d 362, 365 (Fla. 5th DCA 2003) (holding that minimum contacts existed to satisfy due process requirements because “by calling [p]laintiff in Florida, [the non-resident defendant] knew that his alleged misrepresentations would impact [p]laintiff in Florida. [The non-resident defendant] knew [p]laintiff worked in Florida, and thus [non-resident defendant] should have realized that [p]laintiff's reliance on alleged misrepresentations regarding retirement or pension plans would injure [p]laintiff in Florida”); see also Wendt, 822 So.2d at 1257–58 (holding that “physical presence is not necessarily required to satisfy the constitutionally mandated requirement of minimum contacts”).

The Plaintiff attempts to establish...