Trerice v. Trerice

• Decision Date: 27 June 2018
• Docket Number: No. 4D17–2726,4D17–2726
• Citation: 250 So.3d 695
• Parties: Heath M. TRERICE, individually and in his derivative capacity, on behalf of Miljoco Corporation, a Florida corporation, Appellant, v. Howard O. TRERICE, an individual, and Miljoco Corporation, a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

250 So.3d 695

Heath M. TRERICE, individually and in his derivative capacity, on behalf of Miljoco Corporation, a Florida corporation, Appellant,

v.Howard O. TRERICE, an individual, and Miljoco Corporation, a Florida corporation, Appellees.

No. 4D17–2726

District Court of Appeal of Florida, Fourth District.

[June 27, 2018]

John A. Tucker and Emily F. O'Leary of Foley & Lardner, LLP, Jacksonville, for appellant.

Vijay G. Brijbasi of Dickinson Wright PLLC, Fort Lauderdale, and Daniel D. Quick of Dickinson Wright PLLC, Troy, Michigan, for appellee Howard O. Trerice.

Conner, J.

Heath Trerice ("Appellant"), individually and in his derivative capacity on behalf of Miljoco Corporation ("Miljoco"), appeals the final judgment against him and in favor of Appellees, Howard Trerice ("Howard") and Miljoco.

Appellant raises five issues on appeal, some of which have sub-issues. We affirm the trial court's order determining it did not have personal jurisdiction over Howard and dismissing the case for forum non conveniens without discussion. We reverse the trial court's order regarding Appellant's motion for status quo. In light of our affirmance on the first two issues and our reversal on the third issue, we do not address the remaining issues.

Background

Miljoco is a Florida corporation created in 1981 by the parties' father and his wife, Brenda. Miljoco has its registered agent in Broward County, but its sole place of business has always been in Michigan.

The parties' father ran the business until his death in 2009. Before the father's death, he and Brenda owned 77.5% of the stock, Appellant owned 5%, and Howard owned 17.25%. Howard owned a larger percentage of the stock than Appellant because he worked with the father in the corporation. In July 2009, shortly after the father passed away, the family entered into the Trerice Family Resolution Agreement ("TFR") that provided the plan for Miljoco after the father's death to maximize the benefits of his estate plan. The TFR created a trust and provided for an adjustment in the stock ownership in Miljoco. Howard purchased some of the shares owned by the father and Brenda, increasing his ownership interest to 51%, Appellant retained 5% ownership, and the remaining 44% of the stock was be placed into a trust for the care of Brenda. The TFR is governed by Michigan law.

In addition to the TFR, as part of the estate plan, the parties entered into separate employment agreements with Miljoco. The employment agreements detail the parties' compensation and roles within Miljoco, and are also governed by Michigan law.

Brenda passed away in 2013, resulting in Appellant acquiring the 44% of Miljoco stock from her care trust, bringing his total ownership to 49%.

In March 2016, Appellant filed suit in Broward County, Florida, individually and in his derivative capacity on behalf of Miljoco, accusing Howard of overly compensating himself and his wife. An amended complaint alleged four counts: (1) breach of statutory fiduciary duty in violation of Section 607.0830(1), Florida Statutes ; (2) breach of common law fiduciary duty; (3) corporate waste; and (4) unlawful suppression of dividends. The counts did not differentiate between direct and derivative claims.

Howard filed a motion to dismiss the amended complaint arguing: (1) lack of personal jurisdiction over him; (2) forum non conveniens ; (3) failure to satisfy the statutory pre-suit demand requirement in Section 607.07401(2), Florida Statutes ; and (4) Appellant could not properly seek both direct and derivative relief.

Appellant filed a motion for entry of status quo order. The motion essentially sought injunctive relief to prevent Howard from: (1) distributing to himself or his wife company profits disguised as a bonus or other supplemental compensation; (2) using company funds to pay his legal fees; and (3) terminating (or adversely changing) his employment position with the company.

Howard filed a response to the status quo motion arguing that it did not establish any of the factors necessary to grant a temporary injunction. He contended the status quo motion was actually attempting to depart from the status quo by placing a cap on his compensation. Moreover, Howard argued that limiting his compensation via an injunction would be an adjudication on the merits.

The trial court held a hearing on the motion to dismiss the amended complaint and the status quo motion. The trial court decided to address the motion to dismiss first because, if granted, then no ruling would be necessary on the status quo motion. After concluding the hearing on the motion to dismiss and taking the motion under advisement, the trial court proceeded to consider the status quo motion and took that motion under advisement was well. No evidence or witnesses were presented at the hearing on either motion. The factual findings were based on the verified pleadings and numerous affidavits from both parties. No new arguments were presented. The parties made the same arguments as in their various responses and memorandums. The trial court requested that both parties submit proposed orders on both motions.

Howard submitted two proposed orders. It is unclear from the record on appeal whether Appellant submitted proposed orders. One of Howard's proposed orders granted the motion to dismiss on three grounds: (1) lack of personal jurisdiction; (2) forum non conveniens ; and (3) failure to satisfy the pre-suit demand requirement. The accompanying cover letter expressly noted that if the motion to dismiss was granted, "then entry of an order on the Motion for Entry of Status Quo Order is unnecessary."

Howard's proposed order granting the motion to dismiss also addressed the status quo motion in a summary fashion: "Plaintiff's pending motion is hereby DENIED AS MOOT." The separate proposed Order Denying Status Quo Motion treated the motion like a request for injunctive relief, addressed the merits, and denied relief. Both proposed orders had findings of fact to support the legal conclusions.

The trial court entered both of Howard's proposed orders, verbatim. Appellant moved for rehearing, arguing that: (1) the trial court should not have addressed additional matters after determining it did not have personal jurisdiction; (2) the separate order denying the status quo motion made findings of fact and law as to the merits of the case, unrelated to jurisdiction; and (3) the trial court should not have concluded that Appellant failed to make a presuit demand. After the trial court denied the motion for rehearing, Appellant gave notice of appeal.

Appellate Analysis

Because resolution of the issue we address involves matters of law and not fact, our review is de novo ...