40
Fla. L. Weekly D2475aTop of Form

Jurisdiction
— Non-residents — Contracts — Torts — Dismissal — Trial court improperly
denied defendant’s motion for dismissal grounded on lack of personal
jurisdiction where allegations do not allege defendant committed a tort in
Florida or that he failed to perform a contractual obligation that he was
personally required to perform in Florida — Moreover, plaintiff did not
provide an affidavit or evidence refuting defendant’s affidavit contesting
jurisdiction

BRIAN MCLANE, Appellant, v. THE AUTOMOTIVE RESOURCE NETWORK
HOLDINGS, INC., n/k/a NATIONWISE CAPITAL VENTURES, INC., a Florida corporation,
NOSTEGO, LLC, a Delaware limited liability company, LARRY ROLEN, an individual,
and SAFEDATA TRUST, INC., a Tennessee corporation, Appellees. 4th District.
Case No. 4D15-107. November 4, 2015. Appeal of a non-final order from the
Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J.
Murphy, III, Judge; L.T. Case No. 14-8783 (04). Counsel: Raymond C. Carr and Joshua
Magidson of MacFarlane Ferguson & McMullen, P.A., Clearwater, for
appellant. No brief filed for appellees.

(PER CURIAM.) Brian McLane appeals a non-final order denying
his Motion to Dismiss Plaintiff’s Complaint for Lack of Personal Jurisdiction.
We agree that the evidence was insufficient to show that McLane had sufficient
minimum contacts with Florida, and the motion should have been granted.

McLane, a Kentucky resident, is a managing member of
Nostego, LLC, a Delaware company with its principal place of business in
Kentucky. In a December 2012 purchase agreement, Nostego agreed to sell 245,000
unique gift card codes to The Automotive Resource Network Holdings, Inc.
(“ARNH”). ARNH is a Florida limited liability company with its principal place
of business in New York.

A January 2013 Letter of Agreement between Nostego and
SafeData Trust, Inc. indicated that Nostego would receive the cards from
SafeData Trust, and ARNH would be the authorized reseller under a separate
agreement with Nostego.

In May 2014, ARNH filed a complaint in Broward County
against Nostego, McLane, and other defendants for rescission, declaratory
relief, injunction, and breach of contract. An amended complaint was filed in
September 2014. The only counts against McLane are for breach of contract
(third party beneficiary) and fraud in the inducement. The amended complaint
alleged McLane committed a tortious act in this state, breached a contract by
failing to perform acts that the

contract required to be performed in this state, and engaged in substantial,
and not isolated activity in this state. The amended complaint alleged venue
was proper here because the cause of action accrued in Broward County, and
based on a venue provision in the purchase agreement.

McLane filed his motion to dismiss and a supporting
affidavit. He argued that he was not a party to the purchase agreement, and
ARNH did not show that he operated a business venture in the state or that he
committed a tort in the state. He alleged that he signed the contracts as a managing
member of Nostego and denied that he personally paid for the gift card codes.
He stated that the contract negotiations did not occur in Florida, and he did
not conduct any individual business with ARNH.

ARNH did not file an affidavit to rebut McLane’s affidavit
contesting jurisdiction.

At the hearing on his motion, McLane reiterated that the
allegations of fraud in the inducement in the amended complaint do not indicate
that his alleged false statements were made in Florida. He argued the
communication with ARNH occurred in New York, and introduced corporate filings
to show ARNH’s principal place of business in 2012 and 2013 was New York.

ARNH responded that its articles of incorporation going back
to 1997 show a registered office in Ft. Lauderdale.

ARNH believes Nostego is McLane’s alter ego and that he
formed the company only after signing the purchase agreement with ARNH. ARNH
alleged a fraud occurred when McLane represented that he already had paid for
these cards when he did not have them to sell. The cards never were provided,
and they since have expired.

The trial court denied the motion to dismiss without
explanation.

The allegations in the amended complaint do not show that
McLane committed a tort in Florida or that he failed to perform a contractual
obligation that he was personally required to perform in Florida. But, even if
the amended complaint sufficiently pleaded a cause of action and properly
alleged personal jurisdiction as to McLane, ARNH did not provide an affidavit
or any evidence that refuted McLane’s affidavit. See Venetian Salami Co. v.
Parthenais, 554 So. 2d 499, 502-03 (Fla. 1989); Votaw v. Watkins,
660 So. 2d 1171 (Fla. 4th DCA 1995) (holding that the trial court erred in
denying a motion to dismiss where plaintiff did not refute the proof in
defendants’ affidavits contesting jurisdiction either by affidavit or at an
evidentiary hearing). Reiterating factual allegations in a complaint does not
meet the plaintiff’s burden to substantiate its jurisdictional allegations once
the defendant’s affidavit makes a prima facie showing that the long-arm statute
does not apply. Electro Eng’g Prods. Co. v. Lewis, 352 So. 2d 862, 864
(Fla. 1977); Shoppers Online, Inc. v. E-Pawn, Inc., 792 So. 2d 615 (Fla.
4th DCA 2001).

Accordingly, we reverse and remand for the trial court to
grant McLane’s motion to dismiss.

Reversed and Remanded. (CIKLIN, C.J., STEVENSON and
GROSS, JJ., concur.)