42
Fla. L. Weekly D1503aTop of Form

Jurisdiction
— Non-residents — Commission of tortious act in state — Claim that defendant
was subject to jurisdiction in state by virtue of having committed tort of
fraudulent inducement in state by sending communications into state is without
merit where complaint did not allege cause of action for fraudulent inducement
— Although committing a tortious act in state can occur through non-resident
defendant’s sending communications into state, the cause of action must arise
from the communications — Claim that dismissal of complaint for lack of
jurisdiction should have been without prejudice to allow plaintiffs to state
cause of action for fraudulent inducement was not preserved for appeal where
plaintiffs failed to seek amendment of complaint in trial court

CATHERINE WADLEY AND BLISS
CONSULTING SERVICES, INC., Appellants, v. THOMAS P. NAZELLI, Appellee. 3rd District.
Case No. 3D16-100. L.T. Case No. 13-34873. July 5, 2017. An Appeal from the
Circuit Court for Miami-Dade County, Bronwyn C. Miller, Judge. Counsel: The Law
Offices of Mario G. Menocal, P.A., and Mario G. Menocal; Gutierrez Bergman
Boulris, PLLC, and Jennifer A. Kerr, for appellants. Krinzman Huss &
Lubetsky, and Michael I. Feldman, for appellee.

(Before ROTHENBERG, C.J., and SCALES
and LUCK, JJ.)

(ROTHENBERG, C.J.) The plaintiffs
below, Bliss Consulting Services, Inc. (“Bliss Consulting”) and its sole
shareholder, Catherine Wadley (“Wadley”) (collectively, “the plaintiffs”),
appeal from an order dismissing with prejudice their first amended complaint
(“amended complaint”) solely as to defendant Thomas P. Nazelli (“Nazelli”), a
nonresident defendant and the president and sole shareholder of defendant
Orchestra Management Solutions, Inc. (“OMS”) (collectively, “the defendants”),
for lack of personal jurisdiction.1 Because the plaintiffs failed to
establish that Nazelli was subject to jurisdiction under Florida’s long-arm
statute, section 48.193(1)(a)2., Florida Statutes (2015), we affirm the order
under review.

I.
Facts and Procedural History

The plaintiffs filed an amended
complaint stemming from the alleged breach of an alleged joint venture
agreement between the plaintiffs and the defendants for the purpose of
marketing and selling a software product developed by OMS.2 The plaintiffs alleged in their
amended complaint that jurisdiction was proper under section 48.193(1)(a) of
Florida’s long-arm statute based on Nazelli’s commission of a tortious act in
Florida, and that Nazelli had sufficient minimum contacts with Florida to
satisfy federal due process requirements.3

The defendants filed a verified
motion to dismiss asserting, in part, lack of personal jurisdiction over
Nazelli. Following an evidentiary hearing, the trial court entered an order
granting Nazelli’s verified motion to dismiss for lack of personal
jurisdiction, finding that the plaintiffs failed to establish that Nazelli’s
contacts with the state of Florida were sufficient to confer jurisdiction
pursuant to Florida’s long-arm statute and to satisfy federal due process
requirements. The plaintiffs’ appeal follows. We review the order granting
Nazelli’s motion to dismiss for lack of personal jurisdiction de novo. See
Wendt v. Horowitz, 822 So. 2d 1252, 1256 (Fla. 2002) (holding that a trial
court’s ruling on a motion to dismiss for lack of personal jurisdiction is
reviewed de novo on appeal).

II.
Analysis

The plaintiffs contend that the
trial court erred by dismissing their amended complaint with prejudice as to
defendant Nazelli for lack of personal jurisdiction. We disagree.

In Venetian Salami Co. v.
Parthenais, 554 So. 2d 499, 502 (Fla. 1989), the Florida Supreme Court set
forth a two-step inquiry to determine whether the courts in Florida have
long-arm jurisdiction over a nonresident defendant. First, a court must
determine if the operative complaint alleges sufficient jurisdictional facts to
bring the action within the ambit of Florida’s long-arm statute, section
48.193, Florida Statutes. If this step is satisfied, the court must then determine
if the nonresident defendant has sufficient “minimum contacts” with the forum
state to satisfy the Fourteenth Amendment’s due process requirements. To
satisfy the “minimum contacts” requirement, a court must determine that “the
defendant’s conduct and connection with the forum state are such that he should
reasonably anticipate being haled into court there.” World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 287 (1980).

Florida’s long-arm statute provides
for either “specific” jurisdiction under section 48.193(1)(a) if the
nonresident defendant committed any of the acts enumerated under section
48.193(1)(a) in Florida, or “general” jurisdiction under section 48.193(2) if
the nonresident defendant “engaged in substantial and not isolated activity
within this state.” See Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245,
250 (Fla. 4th DCA 2011). As this Court explained in Gerber Trade Finance,
Inc. v. Bayou Dock Seafood Co., 917 So. 2d 964, 967 (Fla. 3d DCA 2005):

While it
is true that under the general jurisdiction standard the defendant must be
involved in substantial, not isolated, and continuous contacts within the
State, see § 48.193(2), Fla. Stat. (2004), for specific jurisdiction,
the plaintiff need only show that the defendant’s contact within the State
resulted in, among several options, a tortious act. § 48.193(1)(b), Fla. Stat.
(2004).[4]

In the instant case, the plaintiffs
argue that they have alleged sufficient jurisdictional facts in their amended
complaint to bring the action within the “specific” jurisdiction provision of
Florida’s long-arm statute, section 48.193(1)(a), which provides, in part, as
follows:

48.193
Acts subjecting person to jurisdiction of courts of state.

(1)(a) A
person, whether or not a citizen or resident of this state, who personally or
through an agent does any of the acts enumerated in this subsection thereby
submits himself or herself and, if he or she is a natural person, his or her
personal representative to the jurisdiction of the courts of this state for any
cause of action arising from any of the following acts:

. . . .

2.
Committing a tortious act within this state.

The plaintiffs argue on appeal that
Nazelli personally committed the tort of fraudulent inducement within the state
of Florida based on his alleged actions in Florida and hundreds of
communications into Florida with Wadley, a Florida resident. In Wendt v.
Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002), the Florida Supreme Court held
that “ ‘committing a tortious act’ in Florida under section 48.193(1)(b) can
occur through the nonresident defendant’s telephonic, electronic, or written
communications into Florida. However, the cause of action must arise
from the communications.” (emphasis added). See also Swanky Apps, LLC v.
Roony Invest & Finance, S.A., 126 So. 3d 336, 339 (Fla. 3d DCA 2013)
(“[C]omitting a tortious act within Florida under section 48.193(1)(b) can
occur by making telephonic, electronic, or written communications into this
State, provided that the tort alleged arises from such communications, and
under certain circumstances, such communications can also satisfy due process
requirements.”) (internal quotations and citations omitted); OSI Indus.,
Inc. v. Carter, 834 So. 2d 362, 365 (Fla. 5th DCA 2003) (holding that a
telephone call from an out-of-state defendant to a plaintiff in Florida during
which the defendant allegedly made misrepresentations to the plaintiff to
induce the plaintiff to continue his employment with a corporation, in which
the defendant was a principal, was sufficient to constitute committing a tort
in Florida and adequate minimum contacts to satisfy federal due process where
the out-of-state defendant knew that the misrepresentations would impact the
plaintiff in Florida).

Thus, as the above cases
demonstrate, a nonresident defendant’s communications into Florida can form the
basis for committing a tortious act within Florida. However, in the instant
case, although there were some general allegations within the amended complaint
that could support a cause of action for fraudulent inducement, the amended
complaint did not specifically plead a cause of action for fraudulent
inducement. Further, during the evidentiary hearing on the motion to dismiss,
the plaintiffs did not argue that Nazelli committed the tort of fraudulent
inducement while in Florida or move to further amend their complaint to add a
cause of action for fraudulent inducement. In fact, the plaintiffs did not
address the tort of fraudulent inducement at the hearing. Finally, the
plaintiffs did not file a motion for rehearing requesting that the trial court
consider the general allegations set forth in the amended complaint that may
support a cause of action for fraudulent inducement.

The plaintiffs now argue on appeal
that the dismissal should have been without prejudice to allow them to further
amend their complaint to state a cause of action for fraudulent inducement.
However, by failing to seek an amendment to their complaint before the trial
court, the plaintiffs have failed to preserve this issue for appellate review.

In Vorbeck v. Betancourt, 107
So. 3d 1142, 1147-48 (Fla. 3d DCA 2012), this Court explained:

The rule
of preservation, which is a keystone in our appellate process, dictates that
“[i]n the absence of fundamental error, an appellate court will not consider an
issue that has been raised for the first time on appeal.” Keech v. Yousef,
815 So. 2d 718, 719 (Fla. 5th DCA 2002); see also Sunset Harbour Condo.
Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (“As a general rule, it
is not appropriate for a party to raise an issue for the first time on
appeal.”). As Florida courts have long recognized, “[i]n order to be preserved
for further review by a higher court, an issue must be presented to the lower
court and the specific legal argument or ground to be argued on appeal
or review must be part of that presentation . . . .” Sunset Harbour, 914
So. 2d at 928 (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985)).

This Court also noted that the rule
of preservation applies to the dismissal of a complaint with prejudice, id.
at 1148, and cited to the following cases:

Stander
v. Dispoz-O-Products. Inc., 973 So.
2d 603, 605 (Fla. 4th DCA 2008) (noting that “a party who does not seek to
amend in the trial court cannot raise the issue of amendment for the first time
on appeal,” and holding that the plaintiff waived the right to challenge the
dismissal with prejudice because when the trial court orally “announced that it
was dismissing with prejudice,” the plaintiff merely responded “Thank you, your
Honor,” and “did not request leave to amend the complaint, nor did plaintiff
move for rehearing to amend after the order of dismissal was entered”); Jelenc
v. Draper, 678 So. 2d 917, 918 n.1 (Fla. 5th DCA 1996) (“The Jelencs
alternatively argue that even if dismissal was proper, it should have been
without prejudice to allow them the opportunity to amend their complaint. While
our disposition of the case moots this claim, we note that we would not have
been able to address the claim because the record does not disclose that the
Jelencs ever requested the opportunity to amend, and thus, the issue was not
preserved for appellate review.”); Century 21 Admiral’s Port, Inc. v.
Walker, 471 So.2d 544, 545 (Fla. 3d DCA 1985) (holding that the
“appellants’ failure to seek leave to amend prior to the dismissal with
prejudice or to move for rehearing requesting leave to amend, precludes
consideration of the issue for the first time on appeal”); see also Thomas
v. Hosp. Bd. of Dirs. of Lee Cnty., 41 So. 3d 246, 255 (Fla. 2d DCA 2010).
Thus, the failure to raise an issue regarding an improper dismissal with
prejudice at the trial level constitutes a waiver of this issue on appeal. See
Keech, 815 So. 2d at 720 (“The failure to preserve an issue for appellate
review constitutes a waiver of the right to seek reversal based on that
error.”).

Because the plaintiffs failed to
preserve their objection to the dismissal of their complaint with prejudice;
request leave to amend their complaint to state a cause of action for
fraudulent inducement; or otherwise attempt to argue that the tortious act they
were relying on to establish specific jurisdiction over Nazelli was fraudulent
inducement, we find no error with the trial court’s determination that the
plaintiffs failed to allege sufficient jurisdictional facts to bring the
plaintiffs’ actions within the ambit of Florida’s long-arm statute, section
48.193(1)(a)2. As we have determined that the plaintiffs did not satisfy the
first inquiry set forth in Venetian Salami, we need not determine
whether there were sufficient minimum contacts between Florida and Nazelli to
satisfy federal due process requirements. Accordingly, we affirm the order
under review.

The remaining arguments raised by
the plaintiffs do not merit discussion.

III.
Conclusion

We affirm the trial court’s order
finding that it lacked personal jurisdiction over Nazelli under Florida’s
long-arm statute, section 48.193(1)(a)2.

Affirmed.

__________________

1The
defendants, Nazelli and OMS, filed a joint motion to dismiss. The trial court,
however, entered separate orders as to Nazelli and OMS. In its order as to OMS,
the trial court found that it had personal jurisdiction over OMS. The trial
court’s order as to OMS was not appealed by any of the parties and, therefore,
is not a subject of this appeal.

2The
amended complaint alleges a breach of a joint venture agreement. The exhibit
attached to the amended complaint to support this allegation reflects that the
proposed joint venture agreement was between OMS and Bliss Consulting, and that
the proposed joint venture agreement was never executed.

3The
amended complaint also alleged personal jurisdiction over Nazelli pursuant to
the general jurisdiction provision set forth in section 48.193(2) of Florida’s
long-arm statute. The plaintiffs have since abandoned this argument.

4Section
48.193(1)(b), Florida Statutes (2002), pertaining to “[c]ommitting a tortious
act” within Florida, was renumbered in 2013 as section 48.193(1)(a)2.

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