42
Fla. L. Weekly D1761aTop of Form
Fla. L. Weekly D1761aTop of Form
Jurisdiction
— Non-residents — Action against foreign investment firm from whom plaintiff
solicited investment in certain broadcast towers alleging breach of
confidentiality agreement concerning the transaction and breach of fiduciary
duty based on defendant’s alleged disclosure of confidential information —
Trial court erred in determining that plaintiff established personal
jurisdiction over defendant based on defendant’s having committed tortious act
in state and engaged in business venture in state — Torts — Breach of
fiduciary duty — Joint venture — Evidence did not establish that defendant
owed plaintiff a fiduciary duty pursuant to a joint venture or, if a fiduciary
duty were owed, that defendant breached that duty in Florida — Discussion of
elements of joint venture — Written, telephonic, or electronic communications
into state — Disclosure of confidential information not basis for long-arm
jurisdiction where there was no evidence that disclosure was made in Florida or
directed at person in state — Business venture in state — Defendant did not
conduct business in state by making electronic communications from out-of-state
offices into Florida concerning transaction that was never consummated or by
making an equity investment in a Florida company in exchange for a minority
interest in the company — Further, confidentiality agreement signed in New
York did not obligate defendant to do anything in Florida, and there was no
evidence that defendant had any clients in Florida or that any percentage of
its revenue was from Florida clients — Trial court erred in denying motion to
dismiss
— Non-residents — Action against foreign investment firm from whom plaintiff
solicited investment in certain broadcast towers alleging breach of
confidentiality agreement concerning the transaction and breach of fiduciary
duty based on defendant’s alleged disclosure of confidential information —
Trial court erred in determining that plaintiff established personal
jurisdiction over defendant based on defendant’s having committed tortious act
in state and engaged in business venture in state — Torts — Breach of
fiduciary duty — Joint venture — Evidence did not establish that defendant
owed plaintiff a fiduciary duty pursuant to a joint venture or, if a fiduciary
duty were owed, that defendant breached that duty in Florida — Discussion of
elements of joint venture — Written, telephonic, or electronic communications
into state — Disclosure of confidential information not basis for long-arm
jurisdiction where there was no evidence that disclosure was made in Florida or
directed at person in state — Business venture in state — Defendant did not
conduct business in state by making electronic communications from out-of-state
offices into Florida concerning transaction that was never consummated or by
making an equity investment in a Florida company in exchange for a minority
interest in the company — Further, confidentiality agreement signed in New
York did not obligate defendant to do anything in Florida, and there was no
evidence that defendant had any clients in Florida or that any percentage of
its revenue was from Florida clients — Trial court erred in denying motion to
dismiss
STONEPEAK PARTNERS, LP, Appellant,
v. TALL TOWER CAPITAL, LLC, Appellee. 2nd District. Case No. 2D16-4204. Opinion
filed August 11, 2017. Appeal pursuant to Fla. R. App. P. 9.130 from the
Circuit Court for Polk County; Andrea Teves Smith, Judge. Counsel: Christine
Marlewski (withdrew after briefing) and Brian K. Oblow (substituted as counsel
of record) of Gray Robinson, P.A., Tampa, and Joseph M. McLaughlin of Simpson,
Thacher & Bartlett, LLP, New York, for Appellant. Robert L. Rocke and Raul
Valles of Rocke, McLean & Sbar, P.A., Tampa, for Appellee.
v. TALL TOWER CAPITAL, LLC, Appellee. 2nd District. Case No. 2D16-4204. Opinion
filed August 11, 2017. Appeal pursuant to Fla. R. App. P. 9.130 from the
Circuit Court for Polk County; Andrea Teves Smith, Judge. Counsel: Christine
Marlewski (withdrew after briefing) and Brian K. Oblow (substituted as counsel
of record) of Gray Robinson, P.A., Tampa, and Joseph M. McLaughlin of Simpson,
Thacher & Bartlett, LLP, New York, for Appellant. Robert L. Rocke and Raul
Valles of Rocke, McLean & Sbar, P.A., Tampa, for Appellee.
(SILBERMAN, Judge.) Stonepeak
Partners, LP, appeals an order denying its motion to dismiss for lack of
personal jurisdiction in this action brought by Tall Tower Capital, LLC, for
breach of contract and breach of fiduciary duty. Because the trial court erred
in determining that Tall Tower established jurisdiction based upon the grounds
that Stonepeak committed a tortious act in Florida and engaged in a business
venture in Florida, we reverse and remand for the trial court to dismiss the
action.
Partners, LP, appeals an order denying its motion to dismiss for lack of
personal jurisdiction in this action brought by Tall Tower Capital, LLC, for
breach of contract and breach of fiduciary duty. Because the trial court erred
in determining that Tall Tower established jurisdiction based upon the grounds
that Stonepeak committed a tortious act in Florida and engaged in a business
venture in Florida, we reverse and remand for the trial court to dismiss the
action.
Stonepeak is an investment firm
incorporated under the laws of Delaware with offices and its principal place of
business in New York. Stonepeak has no office, employees, or clients in
Florida. Tall Tower is a Florida firm headquartered in Lakeland, Florida, that
manages broadcast towers and communications infrastructure throughout the
United States. Tall Tower solicited Stonepeak in New York to invest in
broadcast towers that were being offered for sale by CC Media Holdings, Inc.
(Clear Channel), a Texas company. Clear Channel planned to sell 472 broadcast
towers, and 436 of those towers were located outside Florida.
incorporated under the laws of Delaware with offices and its principal place of
business in New York. Stonepeak has no office, employees, or clients in
Florida. Tall Tower is a Florida firm headquartered in Lakeland, Florida, that
manages broadcast towers and communications infrastructure throughout the
United States. Tall Tower solicited Stonepeak in New York to invest in
broadcast towers that were being offered for sale by CC Media Holdings, Inc.
(Clear Channel), a Texas company. Clear Channel planned to sell 472 broadcast
towers, and 436 of those towers were located outside Florida.
In January 2014, Stonepeak and Tall
Tower entered into a confidentiality and noncircumvention agreement (the
Confidentiality Agreement) concerning the Clear Channel transaction. The
Confidentiality Agreement did not require Stonepeak “to enter into any business
relationship or transaction” or “to deal with” Tall Tower. Tall Tower employees
regularly made visits to New York to discuss the Clear Channel transaction, and
the parties communicated frequently by email. Stonepeak employees or its agents
made four visits to Florida regarding the Clear Channel transaction. Tall Tower
and Stonepeak negotiated with Clear Channel for almost a year, but their bid
was unsuccessful.
Tower entered into a confidentiality and noncircumvention agreement (the
Confidentiality Agreement) concerning the Clear Channel transaction. The
Confidentiality Agreement did not require Stonepeak “to enter into any business
relationship or transaction” or “to deal with” Tall Tower. Tall Tower employees
regularly made visits to New York to discuss the Clear Channel transaction, and
the parties communicated frequently by email. Stonepeak employees or its agents
made four visits to Florida regarding the Clear Channel transaction. Tall Tower
and Stonepeak negotiated with Clear Channel for almost a year, but their bid
was unsuccessful.
During the course of the
negotiations, Stonepeak made an equity investment in Vertical Bridge Holding,
LLC, a Florida company, and acquired a seventeen percent interest in Vertical
Bridge. As a managing director of Stonepeak, Trent Vichie serves on boards of
directors of “portfolio companies” in which Stonepeak has an ownership
interest. Vichie served on Vertical Bridge’s board of directors as a
representative of Stonepeak. Vertical Bridge had the successful bid in the
Clear Channel sale.
negotiations, Stonepeak made an equity investment in Vertical Bridge Holding,
LLC, a Florida company, and acquired a seventeen percent interest in Vertical
Bridge. As a managing director of Stonepeak, Trent Vichie serves on boards of
directors of “portfolio companies” in which Stonepeak has an ownership
interest. Vichie served on Vertical Bridge’s board of directors as a
representative of Stonepeak. Vertical Bridge had the successful bid in the
Clear Channel sale.
Tall Tower subsequently filed its
complaint, alleging that Stonepeak breached the Confidentiality Agreement and
breached its fiduciary duty. Tall Tower alleged that by virtue of the
Confidentiality Agreement the parties were “engaged as joint venturers.” It
further alleged that the fiduciary duty “arose as a result of the
[Confidentiality] Agreement and the parties’ joint negotiations with Clear
Channel.”
complaint, alleging that Stonepeak breached the Confidentiality Agreement and
breached its fiduciary duty. Tall Tower alleged that by virtue of the
Confidentiality Agreement the parties were “engaged as joint venturers.” It
further alleged that the fiduciary duty “arose as a result of the
[Confidentiality] Agreement and the parties’ joint negotiations with Clear
Channel.”
Stonepeak filed a motion to dismiss
for lack of personal jurisdiction and submitted affidavits from Stonepeak’s
Trent Vichie and Luke Taylor in support. Tall Tower opposed the motion and
filed a supporting affidavit from Robert Harper, a managing member of Tall
Tower. The trial court determined that the affidavits were in factual conflict
and that a limited evidentiary hearing was required. See Canale v.
Rubin, 20 So. 3d 463, 469 (Fla. 2d DCA 2009). After an evidentiary hearing,
the trial court entered an order denying the motion to dismiss. Stonepeak
contends that the trial court erred in determining that Stonepeak is subject to
personal jurisdiction in Florida based on section 48.193(1)(a)(2), Florida
Statutes (2013), for committing a tortious act in Florida and on section
48.193(1)(a)(1) for engaging in a business venture in Florida.
for lack of personal jurisdiction and submitted affidavits from Stonepeak’s
Trent Vichie and Luke Taylor in support. Tall Tower opposed the motion and
filed a supporting affidavit from Robert Harper, a managing member of Tall
Tower. The trial court determined that the affidavits were in factual conflict
and that a limited evidentiary hearing was required. See Canale v.
Rubin, 20 So. 3d 463, 469 (Fla. 2d DCA 2009). After an evidentiary hearing,
the trial court entered an order denying the motion to dismiss. Stonepeak
contends that the trial court erred in determining that Stonepeak is subject to
personal jurisdiction in Florida based on section 48.193(1)(a)(2), Florida
Statutes (2013), for committing a tortious act in Florida and on section
48.193(1)(a)(1) for engaging in a business venture in Florida.
Section
48.193(1)(a)(2) —
48.193(1)(a)(2) —
Committing
a Tortious Act in Florida
a Tortious Act in Florida
Personal jurisdiction under
Florida’s long-arm statute may be general or specific, depending on the nature
of the defendant’s contacts with Florida. Wiggins v. Tigrent, Inc., 147
So. 3d 76, 85 (Fla. 2d DCA 2014). Section 48.193(1)(a)(2) of Florida’s long-arm
statute applies to a lawsuit “arising from” a person “[c]ommitting a tortious
act within this state.” Such a lawsuit is based on specific jurisdiction. See
Wiggins, 147 So. 3d at 86. Tall Tower alleged that Stonepeak committed a
tortious act in Florida by breaching its fiduciary duty to Tall Tower.
Florida’s long-arm statute may be general or specific, depending on the nature
of the defendant’s contacts with Florida. Wiggins v. Tigrent, Inc., 147
So. 3d 76, 85 (Fla. 2d DCA 2014). Section 48.193(1)(a)(2) of Florida’s long-arm
statute applies to a lawsuit “arising from” a person “[c]ommitting a tortious
act within this state.” Such a lawsuit is based on specific jurisdiction. See
Wiggins, 147 So. 3d at 86. Tall Tower alleged that Stonepeak committed a
tortious act in Florida by breaching its fiduciary duty to Tall Tower.
At an evidentiary hearing on
personal jurisdiction, the evidence must establish jurisdiction by a
preponderance of the evidence. See Passy v. Lewis, 553 So. 2d 223,
224 (Fla. 1st DCA 1989). We typically conduct a de novo review of an order on a
motion to dismiss for lack of personal jurisdiction. See Rautenberg
v. Falz, 193 So. 3d 924, 928 (Fla. 2d DCA 2016); Dev. Corp. of Palm
Beach v. WBC Constr., L.L.C., 925 So. 2d 1156, 1160 (Fla. 4th DCA 2006).
But when the trial court relies on witness testimony, we defer to the trial
court’s determination of witness credibility. Dev. Corp., 925 So. 2d at
1160. We then apply the facts to the law based on de novo review. Id.
personal jurisdiction, the evidence must establish jurisdiction by a
preponderance of the evidence. See Passy v. Lewis, 553 So. 2d 223,
224 (Fla. 1st DCA 1989). We typically conduct a de novo review of an order on a
motion to dismiss for lack of personal jurisdiction. See Rautenberg
v. Falz, 193 So. 3d 924, 928 (Fla. 2d DCA 2016); Dev. Corp. of Palm
Beach v. WBC Constr., L.L.C., 925 So. 2d 1156, 1160 (Fla. 4th DCA 2006).
But when the trial court relies on witness testimony, we defer to the trial
court’s determination of witness credibility. Dev. Corp., 925 So. 2d at
1160. We then apply the facts to the law based on de novo review. Id.
In Venetian Salami Co. v.
Parthenais, 554 So. 2d 499, 502 (Fla. 1989), the Florida Supreme Court set
forth the two-step analysis necessary to determine whether the trial court has
personal jurisdiction over a nonresident defendant. See Rautenberg,
193 So. 3d at 928. The trial court must first determine whether the complaint
alleges sufficient jurisdictional facts to bring the action within the ambit of
the long-arm statute. Id. If it does, then the trial court must
determine whether sufficient minimum contacts are shown to satisfy due process
requirements. Id. Tall Tower alleged acts to establish specific
jurisdiction under the long-arm statute of committing a tortious act in Florida
and engaging in a business venture in Florida. See § 48.193(1)(a)(1),
(1)(a)(2). Specific jurisdiction also “requires a causal connection between the
defendant’s activities in Florida and the plaintiff’s cause of action, a
requirement known as ‘connexity.’ ” Canale, 20 So. 3d at 466 (quoting Wendt
v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002)). The long-arm statute is to
be strictly construed in favor of the nonresident defendant. Navas v. Brand,
130 So. 3d 766, 770 (Fla. 3d DCA 2014).
Parthenais, 554 So. 2d 499, 502 (Fla. 1989), the Florida Supreme Court set
forth the two-step analysis necessary to determine whether the trial court has
personal jurisdiction over a nonresident defendant. See Rautenberg,
193 So. 3d at 928. The trial court must first determine whether the complaint
alleges sufficient jurisdictional facts to bring the action within the ambit of
the long-arm statute. Id. If it does, then the trial court must
determine whether sufficient minimum contacts are shown to satisfy due process
requirements. Id. Tall Tower alleged acts to establish specific
jurisdiction under the long-arm statute of committing a tortious act in Florida
and engaging in a business venture in Florida. See § 48.193(1)(a)(1),
(1)(a)(2). Specific jurisdiction also “requires a causal connection between the
defendant’s activities in Florida and the plaintiff’s cause of action, a
requirement known as ‘connexity.’ ” Canale, 20 So. 3d at 466 (quoting Wendt
v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002)). The long-arm statute is to
be strictly construed in favor of the nonresident defendant. Navas v. Brand,
130 So. 3d 766, 770 (Fla. 3d DCA 2014).
Because the tort alleged is breach
of a fiduciary duty, Stonepeak must be shown to owe a fiduciary duty to Tall
Tower. A fiduciary relationship does not exist in an arms’ length transaction. Mac-Gray
Servs., Inc. v. DeGeorge, 913 So. 2d 630, 633 (Fla. 4th DCA 2005); Taylor
Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So. 2d 536, 541 (Fla. 5th DCA
2003). But joint venturers owe each other a duty of loyalty, breach of which
gives rise to a claim for breach of fiduciary duty. See New Vista
Dev. Corp. v. Doral Terrace Assocs., 878 So. 2d 462, 464 (Fla. 3d DCA
2004).
of a fiduciary duty, Stonepeak must be shown to owe a fiduciary duty to Tall
Tower. A fiduciary relationship does not exist in an arms’ length transaction. Mac-Gray
Servs., Inc. v. DeGeorge, 913 So. 2d 630, 633 (Fla. 4th DCA 2005); Taylor
Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So. 2d 536, 541 (Fla. 5th DCA
2003). But joint venturers owe each other a duty of loyalty, breach of which
gives rise to a claim for breach of fiduciary duty. See New Vista
Dev. Corp. v. Doral Terrace Assocs., 878 So. 2d 462, 464 (Fla. 3d DCA
2004).
The joint venture relationship must
arise from a contract. Jackson-Shaw Co. v. Jacksonville Aviation Auth.,
8 So. 3d 1076, 1089 (Fla. 2008). To establish a joint venture, the contract
must contain the following five elements: “(1) a community of interest in the
performance of the common purpose, (2) joint control or right of control, (3) a
joint proprietary interest in the subject matter, (4) a right to share in the
profits and (5) a duty to share in any losses which may be sustained.” Id.
(quoting Kislak v. Kreedian, 95 So. 2d 510, 515 (Fla. 1957)). If one
element is absent it precludes the finding of a joint venture. Id. A
party asserting that an unwritten, implied contract is the basis of a joint
venture — as Tall Tower appears to argue on appeal — faces a “heavy and
difficult” burden as it still must allege and prove that the implied contract
contains the same five elements of a joint venture. Kislak, 95 So. 2d at
515. As the Florida Supreme Court noted, “[b]usiness relationships are not
customarily entered into in a casual manner[,]” particularly business
relationships of significant magnitude. Id.
arise from a contract. Jackson-Shaw Co. v. Jacksonville Aviation Auth.,
8 So. 3d 1076, 1089 (Fla. 2008). To establish a joint venture, the contract
must contain the following five elements: “(1) a community of interest in the
performance of the common purpose, (2) joint control or right of control, (3) a
joint proprietary interest in the subject matter, (4) a right to share in the
profits and (5) a duty to share in any losses which may be sustained.” Id.
(quoting Kislak v. Kreedian, 95 So. 2d 510, 515 (Fla. 1957)). If one
element is absent it precludes the finding of a joint venture. Id. A
party asserting that an unwritten, implied contract is the basis of a joint
venture — as Tall Tower appears to argue on appeal — faces a “heavy and
difficult” burden as it still must allege and prove that the implied contract
contains the same five elements of a joint venture. Kislak, 95 So. 2d at
515. As the Florida Supreme Court noted, “[b]usiness relationships are not
customarily entered into in a casual manner[,]” particularly business
relationships of significant magnitude. Id.
Tall Tower contends that it is not
necessary to prove the elements of a joint venture because “the appropriate
inquiry is whether the tort as alleged in the complaint occurred in Florida,
and not whether the alleged tort actually occurred.” Navas, 130 So. 3d
at 770. In Navas, the defendants did not provide affidavits to contest
jurisdiction, and the trial court did not conduct an evidentiary hearing. See
id. We recognize that “a full-blown trial” to prove that Stonepeak
committed the tort is not required. Acquadro v. Bergeron, 851 So. 2d
665, 669 (Fla. 2003). But “[i]n analyzing whether tortious conduct has occurred
within Florida, courts have looked to whether the nonresident defendant ‘committed
a substantial aspect of the alleged tort in Florida.’ ” NHB Advisors, Inc.
v. Czyzyk, 95 So. 3d 444, 448 (Fla. 4th DCA 2012) (quoting Watts v. Haun,
393 So. 2d 54, 56 (Fla. 2d DCA 1981)).
necessary to prove the elements of a joint venture because “the appropriate
inquiry is whether the tort as alleged in the complaint occurred in Florida,
and not whether the alleged tort actually occurred.” Navas, 130 So. 3d
at 770. In Navas, the defendants did not provide affidavits to contest
jurisdiction, and the trial court did not conduct an evidentiary hearing. See
id. We recognize that “a full-blown trial” to prove that Stonepeak
committed the tort is not required. Acquadro v. Bergeron, 851 So. 2d
665, 669 (Fla. 2003). But “[i]n analyzing whether tortious conduct has occurred
within Florida, courts have looked to whether the nonresident defendant ‘committed
a substantial aspect of the alleged tort in Florida.’ ” NHB Advisors, Inc.
v. Czyzyk, 95 So. 3d 444, 448 (Fla. 4th DCA 2012) (quoting Watts v. Haun,
393 So. 2d 54, 56 (Fla. 2d DCA 1981)).
Here, the trial court did not appear
to find that a joint venture existed based on any written contract. The trial
court noted casual references in emails to a “JV,” statements that Stonepeak
was acting in partnership with Tall Tower, and that according to Tall Tower the
parties discussed creating a partnership. The trial court “conclude[d] that
Stonepeak’s investment and participation in Vertical Bridge’s successful
attempt to acquire the Clear Channel assets (some of which are located in
Florida) as alleged in the Complaint and as testified to at the evidentiary
hearing may constitute the commission of a tortious act in Florida.”
to find that a joint venture existed based on any written contract. The trial
court noted casual references in emails to a “JV,” statements that Stonepeak
was acting in partnership with Tall Tower, and that according to Tall Tower the
parties discussed creating a partnership. The trial court “conclude[d] that
Stonepeak’s investment and participation in Vertical Bridge’s successful
attempt to acquire the Clear Channel assets (some of which are located in
Florida) as alleged in the Complaint and as testified to at the evidentiary
hearing may constitute the commission of a tortious act in Florida.”
It is telling that while the
complaint relied upon the Confidentiality Agreement and the parties’ joint
negotiations with Clear Channel to establish the fiduciary duty, in its
appellate brief Tall Tower recognizes that the Confidentiality Agreement is not
a source of any fiduciary duty. Instead, it contends that “the duty arises from
the parties’ relationship as joint venturers.” After thoroughly reviewing the
evidence presented at the hearing and on which the trial court relied, we
conclude that the evidence does not establish that Stonepeak owed Tall Tower a
fiduciary duty pursuant to a joint venture.
complaint relied upon the Confidentiality Agreement and the parties’ joint
negotiations with Clear Channel to establish the fiduciary duty, in its
appellate brief Tall Tower recognizes that the Confidentiality Agreement is not
a source of any fiduciary duty. Instead, it contends that “the duty arises from
the parties’ relationship as joint venturers.” After thoroughly reviewing the
evidence presented at the hearing and on which the trial court relied, we
conclude that the evidence does not establish that Stonepeak owed Tall Tower a
fiduciary duty pursuant to a joint venture.
The evidence does not show that any
written agreement creating a joint venture had been executed by the parties.
Robert Harper of Tall Tower testified that his understanding was that the
parties were entering into a partnership. Brian Philpot of Tall Tower testified
that he understood the proposed LLC as setting up a joint venture
partnership and that Tall Tower would be contributing money and investing in
the new entity. On cross-examination, Philpot recognized that the LLC agreement
that Stonepeak drafted provided in paragraph 2.7, entitled “No State Law
Partnership,” that except for tax purposes, the agreement would not be
construed to create a joint venture or partnership. Philpot also admitted that
a draft Master Services Agreement provided that it shall not be construed as
creating any joint venture or partnership.
written agreement creating a joint venture had been executed by the parties.
Robert Harper of Tall Tower testified that his understanding was that the
parties were entering into a partnership. Brian Philpot of Tall Tower testified
that he understood the proposed LLC as setting up a joint venture
partnership and that Tall Tower would be contributing money and investing in
the new entity. On cross-examination, Philpot recognized that the LLC agreement
that Stonepeak drafted provided in paragraph 2.7, entitled “No State Law
Partnership,” that except for tax purposes, the agreement would not be
construed to create a joint venture or partnership. Philpot also admitted that
a draft Master Services Agreement provided that it shall not be construed as
creating any joint venture or partnership.
The evidence shows that Stonepeak
drafted an LLC agreement and a Master Services Agreement, but the parties never
executed either of them. Although the witnesses from Tall Tower believed they
were acting as partners or joint venturers with Stonepeak and would enter into
such a written agreement in the future, the facts the trial court relied upon
are insufficient to show that any implied contract existed that would meet the
five Kislak elements. See Kislak, 95 So. 2d at 515.
Indeed, the evidence did not address several of the Kislak factors.
Without evidence establishing that a joint venture was actually entered into,
Stonepeak had no fiduciary duty to Tall Tower and thus could not breach a
fiduciary duty in Florida.
drafted an LLC agreement and a Master Services Agreement, but the parties never
executed either of them. Although the witnesses from Tall Tower believed they
were acting as partners or joint venturers with Stonepeak and would enter into
such a written agreement in the future, the facts the trial court relied upon
are insufficient to show that any implied contract existed that would meet the
five Kislak elements. See Kislak, 95 So. 2d at 515.
Indeed, the evidence did not address several of the Kislak factors.
Without evidence establishing that a joint venture was actually entered into,
Stonepeak had no fiduciary duty to Tall Tower and thus could not breach a
fiduciary duty in Florida.
Even if the evidence presented at
the hearing could be considered sufficient to show that Stonepeak had a
fiduciary duty to Tall Tower, the evidence does not show that Stonepeak
breached any fiduciary duty in Florida. The trial court found that Stonepeak
was subject to “personal jurisdiction based on Tall Towers’ claim that
Stonepeak committed a tortious act in Florida through its investment in, and
actions on behalf of, Vertical Bridge, as well as its alleged disclosure of
confidential information to Vertical Bridge.”
the hearing could be considered sufficient to show that Stonepeak had a
fiduciary duty to Tall Tower, the evidence does not show that Stonepeak
breached any fiduciary duty in Florida. The trial court found that Stonepeak
was subject to “personal jurisdiction based on Tall Towers’ claim that
Stonepeak committed a tortious act in Florida through its investment in, and
actions on behalf of, Vertical Bridge, as well as its alleged disclosure of
confidential information to Vertical Bridge.”
With respect to the disclosure of
confidential information to Vertical Bridge in violation of the Confidentiality
Agreement, the testimony from Tall Tower witnesses provided some circumstantial
evidence that Vichie disclosed information about the Clear Channel deal to Marc
Ganzi of Vertical Bridge. But there was no evidence regarding where this
disclosure occurred. This court has recognized “the general rule that the
existence of an injury within Florida, standing alone, is insufficient to
support jurisdiction over an out-of-state tortfeasor.” Kountze v. Kountze,
996 So. 2d 246, 252 (Fla. 2d DCA 2008) (en banc); see also Homeway
Furniture Co. of Mount Airy, Inc. v. Horne, 822 So. 2d 533, 538-39 (Fla. 2d
DCA 2002). In the present case, the trial court relied upon Wendt v.
Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002), for the proposition that a
defendant need not be present in Florida for the purpose of committing a
tortious act in Florida under the long-arm statute. A nonresident defendant can
commit a tortious act in Florida under the long-arm statute by making written,
telephonic, or electronic communications into Florida, if the cause of action
alleged arises from those communications. Id.
confidential information to Vertical Bridge in violation of the Confidentiality
Agreement, the testimony from Tall Tower witnesses provided some circumstantial
evidence that Vichie disclosed information about the Clear Channel deal to Marc
Ganzi of Vertical Bridge. But there was no evidence regarding where this
disclosure occurred. This court has recognized “the general rule that the
existence of an injury within Florida, standing alone, is insufficient to
support jurisdiction over an out-of-state tortfeasor.” Kountze v. Kountze,
996 So. 2d 246, 252 (Fla. 2d DCA 2008) (en banc); see also Homeway
Furniture Co. of Mount Airy, Inc. v. Horne, 822 So. 2d 533, 538-39 (Fla. 2d
DCA 2002). In the present case, the trial court relied upon Wendt v.
Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002), for the proposition that a
defendant need not be present in Florida for the purpose of committing a
tortious act in Florida under the long-arm statute. A nonresident defendant can
commit a tortious act in Florida under the long-arm statute by making written,
telephonic, or electronic communications into Florida, if the cause of action
alleged arises from those communications. Id.
This court has explained that the Wendt
rule is applied when the tort “involves some sort of communication directed into
Florida for purpose of fraud, slander, or other intentional tort.” Wiggins
v. Tigrent, Inc., 147 So. 3d 76, 86 (Fla. 2d DCA 2014); see also PK
Comput., Inc. v. Indep. Travel Agencies of Am., Inc., 656 So. 2d 254, 255
(Fla. 4th DCA 1995) (stating that the complaint contained insufficient
allegations of tortious interference committed in Florida when the complaint
alleged that the defendant made oral statements or misstatements but did not
allege that the statements were made in Florida or were directed at listeners
in Florida). In Wiggins, the plaintiff asserted a cause of action for
conversion, claiming injury in Florida when Wiggins withheld and utilized money
that should have been transferred into the plaintiff’s Florida bank accounts.
147 So. 3d at 78-79. But the alleged tort of conversion did not occur in
Florida and there was no connexity with Florida when the defendant gained
dominion and control of the funds in Washington State. Id. at 87.
rule is applied when the tort “involves some sort of communication directed into
Florida for purpose of fraud, slander, or other intentional tort.” Wiggins
v. Tigrent, Inc., 147 So. 3d 76, 86 (Fla. 2d DCA 2014); see also PK
Comput., Inc. v. Indep. Travel Agencies of Am., Inc., 656 So. 2d 254, 255
(Fla. 4th DCA 1995) (stating that the complaint contained insufficient
allegations of tortious interference committed in Florida when the complaint
alleged that the defendant made oral statements or misstatements but did not
allege that the statements were made in Florida or were directed at listeners
in Florida). In Wiggins, the plaintiff asserted a cause of action for
conversion, claiming injury in Florida when Wiggins withheld and utilized money
that should have been transferred into the plaintiff’s Florida bank accounts.
147 So. 3d at 78-79. But the alleged tort of conversion did not occur in
Florida and there was no connexity with Florida when the defendant gained
dominion and control of the funds in Washington State. Id. at 87.
Because there was no allegation or
evidence at the hearing that Vichie’s alleged disclosure of information
occurred in Florida or was directed at a person in Florida, the alleged
disclosure of information to Vertical Bridge does not support the finding that
Stonepeak committed a tortious act in Florida. See Wendt, 822 So.
2d at 1260; Wiggins, 147 So. 3d at 86. Similarly, the circumstantial
evidence adduced at the hearing does not show that Stonepeak did anything in
Florida regarding its alleged “participation in Vertical Bridge’s successful
attempt to acquire the Clear Channel assets.” With respect to Stonepeak
becoming a minority investor in Vertical Bridge, nothing indicates that it was
a tort for Stonepeak, an investment firm, to purchase a seventeen percent share
of Vertical Bridge.1
evidence at the hearing that Vichie’s alleged disclosure of information
occurred in Florida or was directed at a person in Florida, the alleged
disclosure of information to Vertical Bridge does not support the finding that
Stonepeak committed a tortious act in Florida. See Wendt, 822 So.
2d at 1260; Wiggins, 147 So. 3d at 86. Similarly, the circumstantial
evidence adduced at the hearing does not show that Stonepeak did anything in
Florida regarding its alleged “participation in Vertical Bridge’s successful
attempt to acquire the Clear Channel assets.” With respect to Stonepeak
becoming a minority investor in Vertical Bridge, nothing indicates that it was
a tort for Stonepeak, an investment firm, to purchase a seventeen percent share
of Vertical Bridge.1
Therefore, the trial court erred in
determining that the evidence presented at the hearing establishes that
Stonepeak committed a tortious act in Florida under section 48.193(1)(a)(2).
determining that the evidence presented at the hearing establishes that
Stonepeak committed a tortious act in Florida under section 48.193(1)(a)(2).
Section
48.193(1)(a)(1) —
48.193(1)(a)(1) —
Engaging
in a Business Venture in Florida
in a Business Venture in Florida
Stonepeak contends that the trial
court erred in determining that Stonepeak is subject to personal jurisdiction
in Florida based on section 48.193(1)(a)(1). Tall Tower alleged in its
complaint that Stonepeak was engaged in a business venture in Florida. Section
48.193(1)(a)(1) provides for personal jurisdiction for a cause of action
“arising from” the acts of a nonresident in “[o]perating, conducting, engaging
in, or carrying on a business or business venture in this state or having an
office or agency in this state.” In its findings the trial court stated, “The
Court finds that there is competent substantial evidence that Stonepeak engaged
in a business venture in Florida. Stonepeak purposefully availed itself of the
privilege of conducting activities in Florida, and thus, accordingly invoked
the benefits and protections of its laws.”
court erred in determining that Stonepeak is subject to personal jurisdiction
in Florida based on section 48.193(1)(a)(1). Tall Tower alleged in its
complaint that Stonepeak was engaged in a business venture in Florida. Section
48.193(1)(a)(1) provides for personal jurisdiction for a cause of action
“arising from” the acts of a nonresident in “[o]perating, conducting, engaging
in, or carrying on a business or business venture in this state or having an
office or agency in this state.” In its findings the trial court stated, “The
Court finds that there is competent substantial evidence that Stonepeak engaged
in a business venture in Florida. Stonepeak purposefully availed itself of the
privilege of conducting activities in Florida, and thus, accordingly invoked
the benefits and protections of its laws.”
For purposes of section
48.193(1)(a)(1), to demonstrate that a nonresident defendant is “carrying on
business” the defendant’s activities “must be considered collectively and show
a general course of business activity in the state for pecuniary benefit.” RMS
Titanic, Inc. v. Kingsmen Creatives, Ltd., 579 Fed. App’x 779, 783 (11th
Cir. 2014) (quoting Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A.,
421 F.3d 1162, 1167 (11th Cir. 2005)). Factors to consider in making this
determination “include: (1) ‘the presence and operation of an office in
Florida’; (2) ‘the possession and maintenance of a license to do business in
Florida’; (3) ‘the number of Florida clients served’; and (4) ‘the percentage
of overall revenue gleaned from Florida clients.’ ” Id. at 784 (quoting Horizon
Aggressive Growth, 421 F.3d at 1167).
48.193(1)(a)(1), to demonstrate that a nonresident defendant is “carrying on
business” the defendant’s activities “must be considered collectively and show
a general course of business activity in the state for pecuniary benefit.” RMS
Titanic, Inc. v. Kingsmen Creatives, Ltd., 579 Fed. App’x 779, 783 (11th
Cir. 2014) (quoting Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A.,
421 F.3d 1162, 1167 (11th Cir. 2005)). Factors to consider in making this
determination “include: (1) ‘the presence and operation of an office in
Florida’; (2) ‘the possession and maintenance of a license to do business in
Florida’; (3) ‘the number of Florida clients served’; and (4) ‘the percentage
of overall revenue gleaned from Florida clients.’ ” Id. at 784 (quoting Horizon
Aggressive Growth, 421 F.3d at 1167).
Tall Tower points to the large
amount of email exchanges and telephone calls over the negotiation period
between Tall Tower and Stonepeak. Harper testified that he exchanged numerous
emails with Stonepeak regarding the Clear Channel transaction, and Taylor
testified that there had been regular telephone discussions. Electronic
communications from out-of-state offices into Florida do not establish
conducting business in Florida. See Horizon Aggressive Growth,
421 F.3d at 1167; Bernardele v. Bonorino, 608 F. Supp. 2d 1313, 1322
(S.D. Fla. 2009); see also Jasper v. Zara, 595 So. 2d 1075, 1075
(Fla. 2d DCA 1992) (involving communications by mail and telephone).
amount of email exchanges and telephone calls over the negotiation period
between Tall Tower and Stonepeak. Harper testified that he exchanged numerous
emails with Stonepeak regarding the Clear Channel transaction, and Taylor
testified that there had been regular telephone discussions. Electronic
communications from out-of-state offices into Florida do not establish
conducting business in Florida. See Horizon Aggressive Growth,
421 F.3d at 1167; Bernardele v. Bonorino, 608 F. Supp. 2d 1313, 1322
(S.D. Fla. 2009); see also Jasper v. Zara, 595 So. 2d 1075, 1075
(Fla. 2d DCA 1992) (involving communications by mail and telephone).
But we note that in Canale,
20 So. 3d at 468-69, this court distinguished the Florida Supreme Court’s
decision in Wendt that electronic communications into Florida could
constitute a tort. In doing so, this court recognized that to meet the
connexity requirement, the alleged tort must arise from the communications on
which the plaintiff seeks to establish long-arm jurisdiction. Id. at
469. This court then stated, “Certainly, telephone calls made to Florida may be
relevant to whether an out-of-state resident is doing business in this state.
But in order to come to this conclusion, the nature of the calls must be
examined.” Id. Here, the trial court found only that the communications
concerned the Clear Channel transaction, a transaction that was never
consummated. There was no evidence that Stonepeak derived pecuniary gain as a
result of the communications, and it did not purchase the Clear Channel assets
or even enter into an agreement to purchase them.
20 So. 3d at 468-69, this court distinguished the Florida Supreme Court’s
decision in Wendt that electronic communications into Florida could
constitute a tort. In doing so, this court recognized that to meet the
connexity requirement, the alleged tort must arise from the communications on
which the plaintiff seeks to establish long-arm jurisdiction. Id. at
469. This court then stated, “Certainly, telephone calls made to Florida may be
relevant to whether an out-of-state resident is doing business in this state.
But in order to come to this conclusion, the nature of the calls must be
examined.” Id. Here, the trial court found only that the communications
concerned the Clear Channel transaction, a transaction that was never
consummated. There was no evidence that Stonepeak derived pecuniary gain as a
result of the communications, and it did not purchase the Clear Channel assets
or even enter into an agreement to purchase them.
The trial court also relied on the
fact that Stonepeak made an equity investment in Vertical Bridge for a
seventeen percent interest in the Florida company and that Vichie sat on the
board of directors of Vertical Bridge. The fact that a New York investment firm
owns a minority equity interest in a Florida company as part of its portfolio
does not equate with Stonepeak doing business in Florida. See Res.
Healthcare of Am., Inc. v. McKinney, 940 So. 2d 1139, 1143 (Fla. 2d DCA
2006) (“Ownership of a resident subsidiary corporation by an out-of-state
parent corporation, without more, has been repeatedly deemed insufficient to
meet the requirements of section 48.193.”); Greystone Tribeca Acquisition
L.L.C. v. Ronstrom, 863 So. 2d 473, 476 (Fla. 2d DCA 2004). And the
activities of Vertical Bridge and its board of directors cannot be attributed
to Stonepeak when Tall Tower has made no effort to pierce the corporate veil or
establish jurisdiction under an alter ego theory. See Bellairs v.
Mohrmann, 716 So. 2d 320, 323 (Fla. 2d DCA 1998); WH Smith, PLC v.
Benages & Assocs., 51 So. 3d 577, 581 (Fla. 3d DCA 2010). To
demonstrate jurisdiction under an alter ego theory, the plaintiff must make
sufficient jurisdictional allegations to pierce the corporate veil. WH Smith,
51 So. 3d at 581. To pierce the corporate veil the plaintiff must establish “both
that the corporation is a ‘mere instrumentality’ or alter ego of the defendant[
] and that the defendant engaged in ‘improper conduct’ in the formation
or use of the corporation.” Bellairs, 716 So. 2d at 323 (quoting Dania
Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1120-21 (Fla. 1984)). Tall
Tower made no allegation that Vertical Bridge was a mere instrumentality of its
minority investor, Stonepeak.
fact that Stonepeak made an equity investment in Vertical Bridge for a
seventeen percent interest in the Florida company and that Vichie sat on the
board of directors of Vertical Bridge. The fact that a New York investment firm
owns a minority equity interest in a Florida company as part of its portfolio
does not equate with Stonepeak doing business in Florida. See Res.
Healthcare of Am., Inc. v. McKinney, 940 So. 2d 1139, 1143 (Fla. 2d DCA
2006) (“Ownership of a resident subsidiary corporation by an out-of-state
parent corporation, without more, has been repeatedly deemed insufficient to
meet the requirements of section 48.193.”); Greystone Tribeca Acquisition
L.L.C. v. Ronstrom, 863 So. 2d 473, 476 (Fla. 2d DCA 2004). And the
activities of Vertical Bridge and its board of directors cannot be attributed
to Stonepeak when Tall Tower has made no effort to pierce the corporate veil or
establish jurisdiction under an alter ego theory. See Bellairs v.
Mohrmann, 716 So. 2d 320, 323 (Fla. 2d DCA 1998); WH Smith, PLC v.
Benages & Assocs., 51 So. 3d 577, 581 (Fla. 3d DCA 2010). To
demonstrate jurisdiction under an alter ego theory, the plaintiff must make
sufficient jurisdictional allegations to pierce the corporate veil. WH Smith,
51 So. 3d at 581. To pierce the corporate veil the plaintiff must establish “both
that the corporation is a ‘mere instrumentality’ or alter ego of the defendant[
] and that the defendant engaged in ‘improper conduct’ in the formation
or use of the corporation.” Bellairs, 716 So. 2d at 323 (quoting Dania
Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1120-21 (Fla. 1984)). Tall
Tower made no allegation that Vertical Bridge was a mere instrumentality of its
minority investor, Stonepeak.
Tall Tower is correct that a single
transaction for profit can constitute engaging in a business venture. See
Labbee v. Harrington, 913 So. 2d 679, 683 (Fla. 3d DCA 2005). Labbee
dealt with another long-arm statute, section 48.181, Florida Statutes (2003),
that also applies to “nonresidents who engage in or carry on a business or
business venture in the state.” Labbee, 913 So. 2d at 682. The Third
District determined that the allegation that the defendant had rented out real
property in Florida for twenty years and then sold it was sufficient to
describe a business venture. Id. at 683; see also Wm. E.
Strasser Constr. Corp. v. Linn, 97 So. 2d 458, 460 (Fla. 1957) (determining
that by the purchase of real property in Florida and the execution of a
contract to construct an apartment building that would be rented to tenants for
income for the benefit of the defendants, the defendants “were initiating the
first sub[s]tantial steps toward setting themselves up in a business venture in
this state”); State ex rel. Weber v. Register, 67 So. 2d 619, 620 (Fla.
1953) (determining that the purchase of a citrus grove in Florida and
subsequent listing of grove for sale constituted a business venture). The
intent of the long-arm statute is “to regard nonresidents who have availed
themselves of the privilege of ‘dealing in goods, services, or property,
whether in a professional or nonprofessional capacity, within the State in
anticipation of economic gain,’ as operating a business or business venture.” Labbee,
913 So. 2d at 683 (quoting DeVaney v. Rumsch, 228 So. 2d 904, 907 (Fla.
1969)).
transaction for profit can constitute engaging in a business venture. See
Labbee v. Harrington, 913 So. 2d 679, 683 (Fla. 3d DCA 2005). Labbee
dealt with another long-arm statute, section 48.181, Florida Statutes (2003),
that also applies to “nonresidents who engage in or carry on a business or
business venture in the state.” Labbee, 913 So. 2d at 682. The Third
District determined that the allegation that the defendant had rented out real
property in Florida for twenty years and then sold it was sufficient to
describe a business venture. Id. at 683; see also Wm. E.
Strasser Constr. Corp. v. Linn, 97 So. 2d 458, 460 (Fla. 1957) (determining
that by the purchase of real property in Florida and the execution of a
contract to construct an apartment building that would be rented to tenants for
income for the benefit of the defendants, the defendants “were initiating the
first sub[s]tantial steps toward setting themselves up in a business venture in
this state”); State ex rel. Weber v. Register, 67 So. 2d 619, 620 (Fla.
1953) (determining that the purchase of a citrus grove in Florida and
subsequent listing of grove for sale constituted a business venture). The
intent of the long-arm statute is “to regard nonresidents who have availed
themselves of the privilege of ‘dealing in goods, services, or property,
whether in a professional or nonprofessional capacity, within the State in
anticipation of economic gain,’ as operating a business or business venture.” Labbee,
913 So. 2d at 683 (quoting DeVaney v. Rumsch, 228 So. 2d 904, 907 (Fla.
1969)).
Here, in addition to telephone calls
and emails, the trial court found that over the course of approximately ten
months Stonepeak had the following contacts in Florida: (1) three Stonepeak
employees attended an introductory meeting and dinner in Florida with Tall
Tower in January 2014; (2) an accountant acting as an agent for Stonepeak
visited Tall Tower sometime not long after the January meeting and in October
2014 to audit Tall Tower’s financial records in relation to the potential Clear
Channel transaction; and (3) a Stonepeak employee visited a Miami site of a
Tall Tower broadcast tower in April 2014 to continue negotiations regarding the
Clear Channel transaction.
and emails, the trial court found that over the course of approximately ten
months Stonepeak had the following contacts in Florida: (1) three Stonepeak
employees attended an introductory meeting and dinner in Florida with Tall
Tower in January 2014; (2) an accountant acting as an agent for Stonepeak
visited Tall Tower sometime not long after the January meeting and in October
2014 to audit Tall Tower’s financial records in relation to the potential Clear
Channel transaction; and (3) a Stonepeak employee visited a Miami site of a
Tall Tower broadcast tower in April 2014 to continue negotiations regarding the
Clear Channel transaction.
Stonepeak never consummated a
transaction to purchase the Clear Channel assets or even entered into a
contract for purchase. Stonepeak did not enter into any LLC or management
agreement with Tall Tower. Stonepeak did not deal in any property in Florida
but investigated the possibility of entering into such a transaction. Stonepeak
owned no real property in Florida. The trial court seemed to rely on the fact
that a small percentage of the broadcast towers were located in Florida, but
Clear Channel owned these towers, not Stonepeak.
transaction to purchase the Clear Channel assets or even entered into a
contract for purchase. Stonepeak did not enter into any LLC or management
agreement with Tall Tower. Stonepeak did not deal in any property in Florida
but investigated the possibility of entering into such a transaction. Stonepeak
owned no real property in Florida. The trial court seemed to rely on the fact
that a small percentage of the broadcast towers were located in Florida, but
Clear Channel owned these towers, not Stonepeak.
The Confidentiality Agreement that
Stonepeak signed in New York did not obligate it to do anything in Florida. And
Tall Tower originally solicited Stonepeak in New York regarding the Clear
Channel transaction that was for the purchase of 472 broadcast towers across
the nation, although only 36 of the towers were located in Florida. Stonepeak
has no office in Florida and no license to do business in Florida. Tall Tower
failed to show that Stonepeak has any clients in Florida or that any percentage
of its revenue is from Florida clients.
Stonepeak signed in New York did not obligate it to do anything in Florida. And
Tall Tower originally solicited Stonepeak in New York regarding the Clear
Channel transaction that was for the purchase of 472 broadcast towers across
the nation, although only 36 of the towers were located in Florida. Stonepeak
has no office in Florida and no license to do business in Florida. Tall Tower
failed to show that Stonepeak has any clients in Florida or that any percentage
of its revenue is from Florida clients.
In applying the facts that the trial
court found to the law, we conclude that the trial court erred in finding that
section 48.193(1)(a)(1) was satisfied based on “competent substantial evidence
that Stonepeak engaged in a business venture in Florida.” The trial court did
not find and the evidence does not support that Stonepeak dealt in any goods,
services, or property in Florida or that Stonepeak’s activities in Florida
showed a general course of business activity for pecuniary gain.
court found to the law, we conclude that the trial court erred in finding that
section 48.193(1)(a)(1) was satisfied based on “competent substantial evidence
that Stonepeak engaged in a business venture in Florida.” The trial court did
not find and the evidence does not support that Stonepeak dealt in any goods,
services, or property in Florida or that Stonepeak’s activities in Florida
showed a general course of business activity for pecuniary gain.
We also note that the trial court
found in a conclusory sentence that there was “a sufficient connection between
Stonepeak’s Florida activities and the causes of action alleged by Tall Tower
to satisfy the connexity requirement.” But the order does not explain how Stonepeak’s
conduct, including the meetings or communications with Tall Tower, could be the
basis for the claim that Stonepeak disclosed confidential information to a
third party and assisted that party in purchasing the Clear Channel assets. See
Canale, 20 So. 3d at 466 (stating that for specific jurisdiction there
must be “a causal connection between the defendant’s activities in Florida and
the plaintiff’s cause of action” (quoting Wendt, 822 So. 2d at 1260)).
found in a conclusory sentence that there was “a sufficient connection between
Stonepeak’s Florida activities and the causes of action alleged by Tall Tower
to satisfy the connexity requirement.” But the order does not explain how Stonepeak’s
conduct, including the meetings or communications with Tall Tower, could be the
basis for the claim that Stonepeak disclosed confidential information to a
third party and assisted that party in purchasing the Clear Channel assets. See
Canale, 20 So. 3d at 466 (stating that for specific jurisdiction there
must be “a causal connection between the defendant’s activities in Florida and
the plaintiff’s cause of action” (quoting Wendt, 822 So. 2d at 1260)).
Therefore, the trial court erred in
determining that the evidence established that Stonepeak engaged in a business
venture in Florida under section 48.193(1)(a)(1).
determining that the evidence established that Stonepeak engaged in a business
venture in Florida under section 48.193(1)(a)(1).
Conclusion
Because Tall Tower did not establish
either ground under section 48.193(1)(a)(1) or (1)(a)(2) asserted for personal
jurisdiction, we reverse the order denying the motion to dismiss for lack of
personal jurisdiction and remand for the trial court to dismiss the case. Based
on our conclusion that Tall Tower did not establish a basis for personal
jurisdiction under section 48.193, we do not reach the issue of sufficient
minimum contacts with Florida. See Rautenberg, 193 So. 3d at 930;
Casita, L.P. v. Maplewood Equity Partners L.P., 960 So. 2d 854, 858
(Fla. 3d DCA 2007).
either ground under section 48.193(1)(a)(1) or (1)(a)(2) asserted for personal
jurisdiction, we reverse the order denying the motion to dismiss for lack of
personal jurisdiction and remand for the trial court to dismiss the case. Based
on our conclusion that Tall Tower did not establish a basis for personal
jurisdiction under section 48.193, we do not reach the issue of sufficient
minimum contacts with Florida. See Rautenberg, 193 So. 3d at 930;
Casita, L.P. v. Maplewood Equity Partners L.P., 960 So. 2d 854, 858
(Fla. 3d DCA 2007).
Reversed and remanded for dismissal.
(MORRIS and BLACK, JJ., Concur.)
(MORRIS and BLACK, JJ., Concur.)
__________________
1The evidence also does not show that
Stonepeak was prohibited by any agreement from investing in another company
such as Vertical Bridge.
Stonepeak was prohibited by any agreement from investing in another company
such as Vertical Bridge.