IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002

Transcription

1 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002 RICHARD OVERDORFF, Appellant, v. CASE NO. 5D TRANSAM FINANCIAL SERVICES, INC., etc., et al., Appellee. / Opinion filed May 31, 2002 Non-Final Appeal from the Circuit Court for Orange County, William C. Gridley, Jr., Judge. David W. Henry of Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Orlando, for Appellant. John M. Brennan and G. Robertson Dilg of Gray, Harris & Robinson, P.A., Orlando, for Appellee. SHARP, W., J. Overdorff appeals from a non-final order which denied his motion to dismiss a declaratory action brought against him, in which he asserted lack of personal jurisdiction and forum non conveniens. We have jurisdiction. 1 This suit was brought by TransAm Financial Services, Inc. a group of interrelated investment corporations all owned 1 Florida Rule of Appellate Procedure 9.130(a)(3)(A) and (3)(C)(i).

2 or affiliated with George Noga, president of TransAm, and Noga, individually. The trial court denied the motion without a hearing. Because we think the affidavits filed by the parties create material issues as to whether Overdorff has "minimum contacts" with Florida, we remand this cause for the purpose of holding an evidentiary hearing on the issue of jurisdiction over Overdorff. See Venetian Salami Co. v. Parthenias, 554 So.2d 499 (Fla. 1989); Viking Accoustical Corp. v. Monaco Sales Corp., 767 So.2d 632 (Fla. 5th DCA 2000). The apparent purpose of this lawsuit is to obtain a declaration by the court that Overdorff has no ownership interest or claim in any of the TransAm corporations, based on a memorandum executed in favor of Overdorff in The memorandum purported to give Overdorff an option to acquire an interest in TransAm Financial Group, Inc. and based on the same memorandum, Overdorff has also allegedly asserted an ownership interest in the other related corporations. 2 The corporations are all based and operated in Florida. Overdorff is a California resident, who acted as a securities representative for some of the companies, selling investments or securities in the companies in other states. It appears that although the amended complaint filed in this case claims the action falls under the Long Arm Statute, it does not sufficiently allege any of the factors required to trigger jurisdiction under the statute. It merely alleges jurisdiction under section because the suit arose from "Overdorff's wrongful assertion of some right, title, option, claim or interest on the Plaintiff Business entitles, all of which are Florida business entities." There is no claim that Overdorff breached any agreement in this state or committed a tort. Nor is it alleged he owns any stock, or real or personal property, in Florida. At best there is a claim that he has asserted some ownership interest 2 TransAm Financial Group, Inc. is no longer in existence and it is not a party to this case. 2

3 in TransAm and its related companies which is causing damage to the companies and the owner of the companies, Noga. "Minimum contacts" must be satisfied in order for the Florida trial court to exercise jurisdiction over Overdorff. See Shaffer v. Heiter, 433 U.S. 186 (1977); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 312 (1950); Estate of Bobinger v. Deltona Corp., 563 So.2d 739, 748 (Fla. 2d DCA 1990). The defendants's conduct must be such that he should reasonably anticipate being haled into court in Florida. WorldWide Volkswagen Corp. v. Woodstock, 444 U.S. 286 (1980); American Vision Center, Inc. v. National Yellow Pages Directory Service, Inc, 500 So. 2d 642 (Fla. 2d DCA 1986).. The defendant must have purposefully availed himself of the privilege of conducting business activities within the forum state, thus invoking the benefits and protection of the laws of that state. Hanson v. Denckla, 357 U.S. 235 (1958); American Vision. The circumstances must be considered from the perspective of the defendant, not the plaintiff. Rosenberg v. Coqui, Inc., 464 So. 2d 701 (Fla. 2d DCA 1985). Several factors are relevant in determining whether minimum contacts exists. Ownership of property in the forum state is contact between the defendant and the forum, and may suggest the presence of other ties. However, jurisdiction is lacking unless there are sufficient contacts to satisfy the constitutional fairness standard. Rush v. Savchuk, 444 U.S. 320 (1980). An individual contract with an out-of-state party, standing alone, is insufficient to establish minimum contacts. See Burger King Corp. v. Rudzewicz, 471 U.S. 467, 477 (1985); Cookbook Publishers, Inc. v. American Dental Program, 559 So. 2d 1301, 1302 (Fla. 4 th DCA 1990). Instead, prior negotiations and future consequences and terms of a contract, together with the parties actual course of dealing, must be evaluated in determining whether minimum contacts exist. Burger King at 479; Cookbook Publishers. Other considerations are whether the contract contains a provision that Florida law applies, the scope of the 3

4 defendant s business operations in Florida, and whether the defendant has an office or agency in Florida. American Vision. The record in this case includes an affidavit executed by Noga and two executed by Overdorff. Noga alleges Overdorff has sufficient minimum contacts with Florida based on the following: 1) he acted as a registered securities representative [in California] for TransAm; 2) he came to Florida on a regular basis to discuss business matters; 3) he sold securities issued by TransAm Tax Certificate Corporation and TransAm Tax Certificate, LLC; 4) he worked with Certified Financial Group (CFG), a Florida corporation (unrelated to TransAm) and made visits to Florida to discuss matters related to it; 5) he was paid a monthly sum by TransAm affiliate corporations to manage properties in Texas (it is unclear whether these are Texas, Florida or other corporations); 6) he was hired by TransAm Tax Certificate Corporation to acquire tax certificates in Florida; and presently purchases tax certificates for TransAm Tax Certificate Corporation in other states (e.g., Arizona). Contradicting the above, Overdorff's affidavits swear: 1) he has never been a resident of Florida; 2) has not engaged in regular, continuous or systematic business activity in Florida; 3) he does not own any real property in Florida or maintain an address, post office box, telephone number or office in Florida, and owns no stock in TransAm; 4) he is a licensed securities broker under the laws of California and does not advertise in publications primarily targeted to Florida residents or in Florida based publications; 5) he does not solicit directly in Florida; 4

5 6) he does not regularly conduct business in Florida and has never been required to file corporation income/franchise and emergency exercise tax returns, or any other tax related filings in Florida; 7) he does not employ employees or agents in Florida; 8) he has not attended trade or business conventions or similar activities in Florida; 9) he does not sell goods or provide services directly to persons residing in Florida; 10) he has not made or caused to be filed any UCC related form filings in Florida; and 11) he has never previously been sued or commenced litigation in Florida; 12) he is not a registered broker in Florida; 13) does not regularly come to Florida on business; 14) sales of securities were conducted in California and none of the sales had any direct connection to Florida; 15) he was paid as an independent contractor, and not as an employee; 16) for the last three years, there has been no direct involvement in the purchase of tax certificates in Florida; and 17) there was an auction in Iowa in the summer of 1999 and the last in Arizona was in February of 2000; he has no direct involvement with Florida investors in connection with either Arizona or Iowa auctions; and he was simply paid a daily fee for his auction activity. Based on allegations in Noga's affidavits, we conclude Overdorff may have sufficient minimum contacts with this state to permit this suit to go forward. However, since they are materially contradicted by the allegations in Overdorff's affidavits, an evidentiary hearing is necessary to resolve this matter. 5

6 We reject Overdorff's further argument that the trial court erred in not dismissing the cause of action because of forum non conveniens grounds. See Fla. R. Civ. P The allegations of the amended complaint establish a sufficient basis for bringing this suit in this jurisdiction. 4 Nor is there record evidence in the form of affidavits or live testimony to show why the lawsuit should be brought in California. Thus the trial court did not err in failing to dismiss the complaint on this basis. Pozo v. Roadhouse Grill, Inc., 790 So.2d 1255 (Fla. 5th DCA 2001); Ground Improvement Techniques, Inc. v. Merchants Bonding Co., 707 So.2d 1138, 1139 (Fla. 5th DCA 1998). AFFIRMED in part; REVERSED in part; REMANDED for further proceedings. 3 Rule Choice of Forum. is premature. (a) Grounds for Dismissal. An action may be dismissed on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida when: (1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case, including all of the parties; (2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs' initial forum choice; (3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and (4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice. 4 Until the issue of the court s jurisdiction over Overdorff has been established, the venue question 6

7 COBB and PALMER, JJ., concur. 7