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Fla. L. Weekly D2757bTop of Form

Jurisdiction
— Non-residents — Minimum contacts — Contracts — Marketing agreement —
Where plaintiff, a Florida corporation, solicited nonresident corporate
defendant to have plaintiff broker sale of defendant’s aircraft, which was
located in foreign state; no representative from defendant set foot in Florida;
marketing agreement did not require substantial services to be performed in
Florida and, in fact, did not specify location for any of the services; and
other circumstances surrounding ultimate sale took place outside Florida,
plaintiff could not show that defendant had sufficient minimum contacts with
Florida such that defendant should reasonably anticipate being haled into
Florida court — Trial court erred in denying defendant’s motion to dismiss for
lack of personal jurisdiction

MORO
AIRCRAFT LEASING, INC., Appellant, v. INTERNATIONAL AVIATION MARKETING, INC.,
Appellee. 2nd District. Case No. 2D16-835. Opinion filed December 14, 2016.
Appeal from the Circuit Court for Manatee County; John F. Lakin, Judge.
Counsel: Timothy E. Kiley of Peterson & Myers, P.A., Lakeland, for
Appellant. Jesse M. Tilden and Michael J. Prohidney of Tilden & Prohidney, P.L.,
Bradenton, for Appellee.

(CRENSHAW,
Judge.) Moro Aircraft Leasing, Inc., appeals the trial court’s nonfinal order
denying its motion to dismiss International Aviation Marketing, Inc.’s breach
of contract action against it for lack of personal jurisdiction. Because
International Aviation failed to establish sufficient minimum contacts to
satisfy the constitutional due process requirements of personal jurisdiction,
we reverse and remand for dismissal.

Moro
Aircraft is an Alaska corporation that leases aircrafts. Moro listed the sale
of an aircraft — located in Oregon — on the internet. International Aviation,
an aircraft broker based in Sarasota, contacted Moro and offered to manage the
sale of the aircraft. The parties entered into a marketing agreement — an
“exclusive agent agreement” — in February 2013. Under the terms of the
agreement, International Aviation would exclusively market the sale of the
aircraft by locating a buyer and assisting with sale negotiations. The contract
stated that International Aviation would “undertake a promotional sales effort
directed toward the sale of OWNER’S Aircraft.” International Aviation was
required to prepare all sales literature and other documents to facilitate the
sale. In exchange, Moro agreed to pay International Aviation a $50,000
commission upon sale of the aircraft.

International
Aviation introduced Moro to Toss II LLC, an Iowa company and the eventual buyer
of the aircraft. International Aviation made arrangements for a pre-buy
inspection which took place in Wisconsin at Toss II’s request. International
Aviation prepared a May 31, 2013, Aircraft Purchase Agreement for the proposed
sale of the aircraft to Toss II. That purchase agreement listed Oregon law as
the governing law of the contract, and it stated that closing was to take place
at a location and time of the parties’ choosing. Ultimately, Moro did not rely
on the May purchase agreement. Instead, in September 2013, Moro and Toss II
entered into a separate agreement for the sale of the aircraft. The closing
took place in Oklahoma.

International
Aviation filed a breach of contract claim against Moro in Manatee County,
Florida, alleging that Moro owed it the $50,000 commission for the sale of the
aircraft. The complaint alleged that Moro failed to pay International Aviation
its commission under the parties’ marketing agreement. Moro moved to dismiss
the complaint for lack of personal jurisdiction. Following a hearing, the trial
court denied Moro’s motion and this appeal followed.

We
review de novo a trial court’s ruling on a motion to dismiss for lack of
personal jurisdiction. Bohlander v. Robert Dean & Assocs. Yacht
Brokerage, Inc., 920 So. 2d 1226, 1228 (Fla. 3d DCA 2006). To determine
whether a Florida court has personal jurisdiction over a party, “a trial court
must first determine whether the Complaint alleges sufficient jurisdictional
facts to bring the action within Florida’s long-arm statute.” Id. “If
the Complaint properly alleges such facts, a trial court must consider whether
the constitutional requirement of minimum contacts has been met.” Id.
(citing Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla.1989)).

Florida’s
long-arm statute, section 48.193(1)(a)(7), Florida Statutes (2013), provides in
part that a nonresident subjects himself to personal jurisdiction in a Florida
court if he “[b]reach[es] a contract in this state by failing to perform acts
required by the contract to be performed in this state.” “It is sufficient for
purposes of the first prong of the test that a contract is made with a Florida
resident and payment is to be made in this state.” Woodard Chevrolet, Inc.
v. Taylor Corp., 949 So. 2d 268, 270 (Fla. 4th DCA 2007). “Where no place
of payment is designated in a contract, payment is presumed to be made at the
residence of the creditor.” Corporacion Aero Angeles, S.A. v. Fernandez,
69 So. 3d 295, 298 (Fla. 4th DCA 2011).

Here,
International Aviation’s complaint against Moro meets the first jurisdictional
prong under Florida’s long-arm statute. Because the contract at issue between
the parties was silent as to place of payment, payment is presumed to be made
in Florida. International Aviation’s allegation that Moro failed to make a
payment in Florida brings the action within the purview of section 48.193.

To
satisfy the second jurisdictional prong, a plaintiff must show that the
non-resident defendant “has sufficient minimum contacts to bring the action in
the forum state.” Fernandez, 69 So. 3d at 298. This means that a
defendant’s contacts

(1) must be related to the
plaintiff’s cause of action or have given rise to it, (2) must involve some act
by which the defendant has purposefully availed itself of the privilege of
conducting activities within the forum, and (3) the defendant’s contacts with
the forum must be such that the defendant should reasonably anticipate being
haled into court there.

Id. at
299. “The due process requirement of minimum contacts is not satisfied by a
showing that a party has entered into a contract with a non-resident, or a
showing that payment must be made in Florida.” Bohlander, 920 So. 2d at
1228. The due process requirement may be satisfied, however, when a
non-resident defendant entered into a contract with a Florida party for
substantial services to be performed in Florida; in that situation, the defendant
has purposely availed himself of the privilege of conducting activities in
Florida. Id. “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.” Woodard, 949 So. 2d at 270
(quoting Taskey v. Burtis, 785 So. 2d 557, 559 (Fla. 4th DCA 2001)).

In Fernandez,
a Florida broker brought a breach of contract action against a Mexican
corporation for failure to pay commission on the sale of an aircraft. 69 So. 3d
at 296-97. The Florida broker approached potential buyers in Florida and
advertised the aircraft in national magazines. He contracted with Canadian
buyers to purchase the airplane and he arranged for them to view the airplane
in Mexico. The buyers’ deposit was held by an Oklahoma agent. The sale closed
in Canada. The Fourth District held that the Mexican seller did not have
sufficient minimum contacts with Florida to establish personal jurisdiction. Id.
at 300.

Similarly,
in Woodard, a California corporation that owns car dealerships entered
into a marketing service agreement with a Florida company that publishes and
distributes marketing materials. 949 So. 2d at 269. Under the terms of the
parties’ agreement, Woodard sent payments to Florida, and the Florida marketing
company performed the design, production, and printing in Florida, and mailed
brochures from Florida. The Fourth District concluded that the California
corporation had insufficient minimum contacts to support personal jurisdiction
in Florida. Id. at 271.

And
in Bohlander, a Florida yacht broker brought a breach of contract action
against a nonresident yacht seller. 920 So. 2d at 1226. The parties entered
into a marketing agreement under which the broker would distribute information,
advertise, and generally “manage the sale of the Vessel.” Florida law governed
the agreement, but no services were required to be performed in Florida under
the agreement. The Third District concluded that the nonresident seller did not
have sufficient minimum contacts with Florida to meet due process requirements
because the substantial services rendered in the sale of the yacht were not
performed in Florida. Id. at 1228-29.

Like
the appellate courts in Fernandez, Woodard, and Bohlander,
we conclude based on the circumstances here that Moro did not have sufficient
minimum contacts in Florida to satisfy due process requirements. Here, the
Florida corporation, International Aviation, solicited the nonresident Alaska
corporation Moro, to have International Aviation broker the sale of Moro’s
aircraft located in Oregon. No representative from the Alaska corporation set
foot in Florida. The marketing agreement between Moro and International
Aviation did not require substantial services to be performed in Florida — in
fact, it did not specify a location for any of the services. The eventual buyer
was from Iowa, the pre-buy inspection took place in Wisconsin, and the ultimate
sale of the aircraft took place in Oklahoma. Under these circumstances,
International Aviation cannot show that Moro had sufficient minimum contacts
with Florida such that Moro should reasonably anticipate being haled into a
Florida court.

We
therefore reverse the trial court’s order denying Moro’s motion to dismiss for
lack of personal jurisdiction and remand for dismissal.

Reversed
and remanded. (NORTHCUTT and LaROSE, JJ., Concur.)

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