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Fla. L. Weekly D1852aTop of Form
Fla. L. Weekly D1852aTop of Form
Civil
procedure — Dismissal — Dismissal with prejudice was proper because plaintiff’s
fifth amended complaint failed to state a cause of action, and it appears
giving the plaintiff another opportunity to amend the complaint would be futile
procedure — Dismissal — Dismissal with prejudice was proper because plaintiff’s
fifth amended complaint failed to state a cause of action, and it appears
giving the plaintiff another opportunity to amend the complaint would be futile
JAMES C. DOW, Appellant, v. FIDELITY
INVESTMENTS a/k/a FIDELITY BROKERAGE SERVICES, LLC, CONNOR EVERS, JACOB EVERS,
ERICA EVERS, GLORIA EVERS, and MICHAEL EVERS, Appellees. 4th District. Case No.
4D17-436. August 23, 2017. Appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Edward Artau, Judge; L.T. Case No. 2014CA003327XXXXMB.
Counsel: James A. Herb and Jennifer L. Fulton of Herb Law Firm, Chartered, Boca
Raton, for appellant. Gregory S. Sconzo of Kaplan & Sconzo, P.A., Palm
Beach Gardens, for appellees Gloria Evers and Michael Evers.
INVESTMENTS a/k/a FIDELITY BROKERAGE SERVICES, LLC, CONNOR EVERS, JACOB EVERS,
ERICA EVERS, GLORIA EVERS, and MICHAEL EVERS, Appellees. 4th District. Case No.
4D17-436. August 23, 2017. Appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Edward Artau, Judge; L.T. Case No. 2014CA003327XXXXMB.
Counsel: James A. Herb and Jennifer L. Fulton of Herb Law Firm, Chartered, Boca
Raton, for appellant. Gregory S. Sconzo of Kaplan & Sconzo, P.A., Palm
Beach Gardens, for appellees Gloria Evers and Michael Evers.
(GERBER, C.J.) The plaintiff appeals
from the circuit court’s final order granting with prejudice defendants Gloria
Evers’ and Michael Evers’ motion to dismiss the plaintiff’s fifth amended
complaint against them. In the motion, Gloria Evers and Michael Evers argued
that the plaintiff’s fifth amended complaint failed to establish personal
jurisdiction over them, and failed to state a cause of action against them.
from the circuit court’s final order granting with prejudice defendants Gloria
Evers’ and Michael Evers’ motion to dismiss the plaintiff’s fifth amended
complaint against them. In the motion, Gloria Evers and Michael Evers argued
that the plaintiff’s fifth amended complaint failed to establish personal
jurisdiction over them, and failed to state a cause of action against them.
The circuit court granted the
motion, finding: (1) the plaintiff failed to satisfy Florida’s long-arm
statute, section 48.193, Florida Statutes (2016), because Gloria Evers’ and
Michael Evers’ “alleged communications are not tortious in and of themselves
and do not give rise to a cause of action to which a Florida court has
jurisdiction”; and (2) “even if Plaintiff had satisfied the requirements of the
long-arm statute . . . Plaintiff has failed to establish adequate minimum
contacts for this Court to exercise jurisdiction” over Gloria Evers and Michael
Evers.
motion, finding: (1) the plaintiff failed to satisfy Florida’s long-arm
statute, section 48.193, Florida Statutes (2016), because Gloria Evers’ and
Michael Evers’ “alleged communications are not tortious in and of themselves
and do not give rise to a cause of action to which a Florida court has
jurisdiction”; and (2) “even if Plaintiff had satisfied the requirements of the
long-arm statute . . . Plaintiff has failed to establish adequate minimum
contacts for this Court to exercise jurisdiction” over Gloria Evers and Michael
Evers.
We agree with the plaintiff’s
argument on appeal that Gloria Evers and Michael Evers waived their argument
that the plaintiff’s fifth amended complaint failed to establish personal
jurisdiction over them, because they failed to raise that ground in response to
the original complaint against them. See Solmo v. Friedman, 909 So. 2d
560, 564 (Fla. 4th DCA 2005) (“It is well established that if a party takes
some step in the proceedings which amounts to a submission to the court’s
[personal] jurisdiction, then it is deemed that the party waived [their] right
to challenge the court’s jurisdiction regardless of the party’s intent not to
concede jurisdiction.”) (citation, brackets, and internal quotation marks
omitted).
argument on appeal that Gloria Evers and Michael Evers waived their argument
that the plaintiff’s fifth amended complaint failed to establish personal
jurisdiction over them, because they failed to raise that ground in response to
the original complaint against them. See Solmo v. Friedman, 909 So. 2d
560, 564 (Fla. 4th DCA 2005) (“It is well established that if a party takes
some step in the proceedings which amounts to a submission to the court’s
[personal] jurisdiction, then it is deemed that the party waived [their] right
to challenge the court’s jurisdiction regardless of the party’s intent not to
concede jurisdiction.”) (citation, brackets, and internal quotation marks
omitted).
However, we conclude without further
discussion that the circuit court should have granted Gloria Evers’ and Michael
Evers’ motion to dismiss on the ground that the plaintiff’s fifth amended
complaint failed to state a cause of action against them. See Dade Cnty.
Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) (“[I]f a
trial court reaches the right result, but for the wrong reasons, it will be
upheld if there is any basis which would support the judgment in the record.”).
discussion that the circuit court should have granted Gloria Evers’ and Michael
Evers’ motion to dismiss on the ground that the plaintiff’s fifth amended
complaint failed to state a cause of action against them. See Dade Cnty.
Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) (“[I]f a
trial court reaches the right result, but for the wrong reasons, it will be
upheld if there is any basis which would support the judgment in the record.”).
Based on the numerous opportunities
which the circuit court gave to the plaintiff to attempt to state a cause of
action against Gloria Evers and Michael Evers, and because it appears that
giving the plaintiff another opportunity to amend the complaint would be
futile, we affirm the circuit court’s final order granting with prejudice
Gloria Evers’ and Michael Evers’ motion to dismiss the plaintiff’s fifth
amended complaint against them. See McCray v. Bellsouth Telecommunications,
Inc., 213 So. 3d 938, 939 (Fla. 4th DCA 2017) (“Refusal to allow an
amendment is an abuse of the trial court’s discretion unless it clearly appears
that allowing the amendment would prejudice the opposing party, the privilege
to amend has been abused, or amendment would be futile.”) (emphasis
added; citation and internal quotation marks omitted).
which the circuit court gave to the plaintiff to attempt to state a cause of
action against Gloria Evers and Michael Evers, and because it appears that
giving the plaintiff another opportunity to amend the complaint would be
futile, we affirm the circuit court’s final order granting with prejudice
Gloria Evers’ and Michael Evers’ motion to dismiss the plaintiff’s fifth
amended complaint against them. See McCray v. Bellsouth Telecommunications,
Inc., 213 So. 3d 938, 939 (Fla. 4th DCA 2017) (“Refusal to allow an
amendment is an abuse of the trial court’s discretion unless it clearly appears
that allowing the amendment would prejudice the opposing party, the privilege
to amend has been abused, or amendment would be futile.”) (emphasis
added; citation and internal quotation marks omitted).
Affirmed. (LEVINE and CONNER, JJ., concur.)
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