41 Fla. L. Weekly D672bTop of Form
Jurisdiction
— Non-residents — Contracts — Failure to pay on contract requiring payment
in Florida is sufficient to satisfy Florida’s long-arm statute conferring
jurisdiction over breach of contract actions — Minimum contacts — Where
neither amended complaint nor testimony at hearing on jurisdiction showed that
any related substantial act beyond repayment of promissory note was required to
be and/or actually was performed in Florida, defendant did not have sufficient
minimum contacts with state to support assertion of personal jurisdiction —
Remand with directions to dismiss without prejudice to refiling complaint in
appropriate forum
— Non-residents — Contracts — Failure to pay on contract requiring payment
in Florida is sufficient to satisfy Florida’s long-arm statute conferring
jurisdiction over breach of contract actions — Minimum contacts — Where
neither amended complaint nor testimony at hearing on jurisdiction showed that
any related substantial act beyond repayment of promissory note was required to
be and/or actually was performed in Florida, defendant did not have sufficient
minimum contacts with state to support assertion of personal jurisdiction —
Remand with directions to dismiss without prejudice to refiling complaint in
appropriate forum
CORNERSTONE INVESTMENT FUNDING, LLC, Appellant, v. PAINTED
POST GROUP, INC., Appellee. 4th District. Case No. 4D15-1907. March 16, 2016.
Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Lisa S. Small, Judge; L.T. Case No. 502014CA004263
AH. Counsel: Steven A. Matta of Matta Blair, PLC, Bloomfield Hills, Michigan,
for appellant. Arnold R. Ginsberg of Arnold R. Ginsberg, P.A., Miami, and Jared
L. Gamberg of Jared L. Gamberg, P.A., Hollywood, for appellee.
POST GROUP, INC., Appellee. 4th District. Case No. 4D15-1907. March 16, 2016.
Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Lisa S. Small, Judge; L.T. Case No. 502014CA004263
AH. Counsel: Steven A. Matta of Matta Blair, PLC, Bloomfield Hills, Michigan,
for appellant. Arnold R. Ginsberg of Arnold R. Ginsberg, P.A., Miami, and Jared
L. Gamberg of Jared L. Gamberg, P.A., Hollywood, for appellee.
ON
MOTION FOR REHEARING
MOTION FOR REHEARING
(PER CURIAM.) We grant the Motion for Rehearing filed by
Appellee Painted Post Group, withdraw our previously issued opinion dated
January 27, 2016, and replace it with the following:
Appellee Painted Post Group, withdraw our previously issued opinion dated
January 27, 2016, and replace it with the following:
Appellant, Cornerstone Investment Funding, LLC
(“Cornerstone”), a Virginia-based entity, appeals the trial court’s denial of
its motion to dismiss for lack of personal jurisdiction.1 We reverse, concluding that
Cornerstone lacked sufficient minimum contacts with Florida to satisfy due
process.
(“Cornerstone”), a Virginia-based entity, appeals the trial court’s denial of
its motion to dismiss for lack of personal jurisdiction.1 We reverse, concluding that
Cornerstone lacked sufficient minimum contacts with Florida to satisfy due
process.
Background
The complaint alleged as follows. Arnold S. Goldin, Inc.,
loaned Cornerstone $300,000. The loan was evidenced by a promissory note signed
by the parties separately in Virginia and Florida. Goldin subsequently assigned
its interest in the promissory note to appellee, Painted Post Group, Inc.
(“Post Group”), with which Goldin was affiliated. Both Goldin and Post Group
were located in Palm Beach County.
loaned Cornerstone $300,000. The loan was evidenced by a promissory note signed
by the parties separately in Virginia and Florida. Goldin subsequently assigned
its interest in the promissory note to appellee, Painted Post Group, Inc.
(“Post Group”), with which Goldin was affiliated. Both Goldin and Post Group
were located in Palm Beach County.
When Cornerstone failed to make payments on the note, Post
Group filed suit in Palm Beach County against Cornerstone and others for,
amongst other things, repayment of the loan. The defendants in the action below
moved for summary judgment, alleging the trial court lacked personal
jurisdiction over the non-resident defendants. A predecessor judge granted the
motion but also granted leave for Post Group to amend its complaint.
Group filed suit in Palm Beach County against Cornerstone and others for,
amongst other things, repayment of the loan. The defendants in the action below
moved for summary judgment, alleging the trial court lacked personal
jurisdiction over the non-resident defendants. A predecessor judge granted the
motion but also granted leave for Post Group to amend its complaint.
Post Group filed an amended complaint only against
Cornerstone, alleging a single count for breach of contract. Cornerstone moved
to dismiss for lack of personal jurisdiction and, after conflicting
jurisdictional affidavits were filed by the parties, the trial court held an
evidentiary hearing. The only witness to testify at the hearing was Arnold
Goldin, a principal of Arnold S. Goldin, Inc. Arnold Goldin claimed the parties
had entered into a “verbal agreement” that payments on the promissory note
would be made to his business address in Palm Beach County. Based on Arnold
Goldin’s testimony, a successor judge2 concluded that Post Group had
established both jurisdictional facts and minimum contacts between Cornerstone
and Florida sufficient to assert personal jurisdiction over Cornerstone. From
that order, Cornerstone brings this appeal.
Cornerstone, alleging a single count for breach of contract. Cornerstone moved
to dismiss for lack of personal jurisdiction and, after conflicting
jurisdictional affidavits were filed by the parties, the trial court held an
evidentiary hearing. The only witness to testify at the hearing was Arnold
Goldin, a principal of Arnold S. Goldin, Inc. Arnold Goldin claimed the parties
had entered into a “verbal agreement” that payments on the promissory note
would be made to his business address in Palm Beach County. Based on Arnold
Goldin’s testimony, a successor judge2 concluded that Post Group had
established both jurisdictional facts and minimum contacts between Cornerstone
and Florida sufficient to assert personal jurisdiction over Cornerstone. From
that order, Cornerstone brings this appeal.
Analysis
Personal jurisdiction over a non-resident defendant may be
exercised only when the following two-pronged test has been satisfied: (1) the
complaint alleges facts that would subject the defendant to Florida’s
“long-arm” statute,3 and (2) the defendant has sufficient
“minimum contacts” to meet traditional notions of fair play and substantial
justice such that the defendant could “ ‘reasonably anticipate being haled into
court’ ” due to its actions. Venetian Salami Co. v. Parthenais, 554 So.
2d 499, 501 (Fla. 1989) (quoting World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297 (1980)); Henderson v. Elias, 56 So. 3d 86 (Fla. 4th
DCA 2011). Failure to pay on a contract requiring payment in Florida has been
found sufficient to satisfy Florida’s long-arm statute conferring jurisdiction
over breach of contract actions. Smith Architectural Grp., Inc. v. Dehaan,
867 So. 2d 434, 436 (Fla. 4th DCA 2004). Post Group’s amended complaint thus
meets the first prong of the Venetian Salami test.
exercised only when the following two-pronged test has been satisfied: (1) the
complaint alleges facts that would subject the defendant to Florida’s
“long-arm” statute,3 and (2) the defendant has sufficient
“minimum contacts” to meet traditional notions of fair play and substantial
justice such that the defendant could “ ‘reasonably anticipate being haled into
court’ ” due to its actions. Venetian Salami Co. v. Parthenais, 554 So.
2d 499, 501 (Fla. 1989) (quoting World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297 (1980)); Henderson v. Elias, 56 So. 3d 86 (Fla. 4th
DCA 2011). Failure to pay on a contract requiring payment in Florida has been
found sufficient to satisfy Florida’s long-arm statute conferring jurisdiction
over breach of contract actions. Smith Architectural Grp., Inc. v. Dehaan,
867 So. 2d 434, 436 (Fla. 4th DCA 2004). Post Group’s amended complaint thus
meets the first prong of the Venetian Salami test.
The mere fact, however, that Cornerstone allegedly breached
a contract by failing to make payments on the contract in Florida would not
constitute sufficient minimum contacts with this state to satisfy due process. Taskey
v. Burtis, 785 So. 2d 557, 559 (Fla. 4th DCA 2001) (“Factors that go into
determining whether sufficient minimum contacts exist include the
foreseeability that the defendant’s conduct will result in suit in the forum
state and the defendant’s purposeful availment of the forum’s privileges and
protections.”); Labry v. Whitney Nat’l Bank, 8 So. 3d 1239, 1241 (Fla.
1st DCA 2009); Ganiko v. Ganiko, 826 So. 2d 391, 394-95 (Fla. 1st DCA
2002). As neither Post Group’s amended complaint nor Goldin’s hearing testimony
showed that any related substantial act beyond repayment of the promissory note
was required to be and/or actually was performed in Florida, Cornerstone does
not have sufficient minimum contacts with this state to support the assertion
of personal jurisdiction over it. See deMco Techs., Inc. v. C.S. Eng’d
Castings, Inc., 769 So. 2d 1128, 1131 (Fla. 3d DCA 2000).
a contract by failing to make payments on the contract in Florida would not
constitute sufficient minimum contacts with this state to satisfy due process. Taskey
v. Burtis, 785 So. 2d 557, 559 (Fla. 4th DCA 2001) (“Factors that go into
determining whether sufficient minimum contacts exist include the
foreseeability that the defendant’s conduct will result in suit in the forum
state and the defendant’s purposeful availment of the forum’s privileges and
protections.”); Labry v. Whitney Nat’l Bank, 8 So. 3d 1239, 1241 (Fla.
1st DCA 2009); Ganiko v. Ganiko, 826 So. 2d 391, 394-95 (Fla. 1st DCA
2002). As neither Post Group’s amended complaint nor Goldin’s hearing testimony
showed that any related substantial act beyond repayment of the promissory note
was required to be and/or actually was performed in Florida, Cornerstone does
not have sufficient minimum contacts with this state to support the assertion
of personal jurisdiction over it. See deMco Techs., Inc. v. C.S. Eng’d
Castings, Inc., 769 So. 2d 1128, 1131 (Fla. 3d DCA 2000).
Conclusion
Accordingly, the order appealed from is reversed and
remanded with directions to grant Cornerstone’s motion to dismiss without
prejudice to Post Group refiling its complaint in an appropriate forum.
remanded with directions to grant Cornerstone’s motion to dismiss without
prejudice to Post Group refiling its complaint in an appropriate forum.
Reversed and remanded for further proceedings.
(CIKLIN, C.J., DAMOORGIAN and FORST, JJ., concur.)
(CIKLIN, C.J., DAMOORGIAN and FORST, JJ., concur.)
__________________
1This Court has jurisdiction based on
Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i).
Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i).
2Cornerstone argues that the
predecessor judge’s grant of summary judgment as to personal jurisdiction bound
the successor judge to rule in its favor on the subsequent motion to dismiss
for lack of personal jurisdiction. However, since that order likewise granted
Post Group leave to amend the complaint, no final judgment on personal
jurisdiction existed for which collateral estoppel would apply. Hanover Ins.
Co. v. Marriott Int’l, Inc., 685 So. 2d 894, 895 (Fla. 4th DCA 1997).
predecessor judge’s grant of summary judgment as to personal jurisdiction bound
the successor judge to rule in its favor on the subsequent motion to dismiss
for lack of personal jurisdiction. However, since that order likewise granted
Post Group leave to amend the complaint, no final judgment on personal
jurisdiction existed for which collateral estoppel would apply. Hanover Ins.
Co. v. Marriott Int’l, Inc., 685 So. 2d 894, 895 (Fla. 4th DCA 1997).
3“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 . . . to
the jurisdiction of the courts of this state for any cause of action arising
from any of the following acts . . . . Breaching a contract in this state by
failing to perform acts required by the contract to be performed in this
state.” § 48.193(1)(a)7., Fla. Stat. (2013).
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 . . . to
the jurisdiction of the courts of this state for any cause of action arising
from any of the following acts . . . . Breaching a contract in this state by
failing to perform acts required by the contract to be performed in this
state.” § 48.193(1)(a)7., Fla. Stat. (2013).