Opinion
No. 2D21-4021
07-08-2022
HUDSON CAPITAL PROPERTIES IV, LLC, Appellant, v. Odicho IECHO and Westdale Waterchase, LLC, Appellees.
Thamir A.R. Kaddouri, Jr., and Penelope T. Rowlett of Law Office of Thamir A.R. Kaddouri, P.A., Tampa, for Appellant. Brian L. Elstein of Elstein Legal, South Miami, for Appellee Odicho Iecho. No appearance for Westdale Waterchase, LLC.
Thamir A.R. Kaddouri, Jr., and Penelope T. Rowlett of Law Office of Thamir A.R. Kaddouri, P.A., Tampa, for Appellant.
Brian L. Elstein of Elstein Legal, South Miami, for Appellee Odicho Iecho.
No appearance for Westdale Waterchase, LLC.
LUCAS, Judge.
Hudson Capital Properties IV, LLC (Hudson Capital), a Delaware limited liability company, appeals the circuit court's denial of its motion to dismiss a civil complaint for lack of personal jurisdiction. Because there is no basis for a Florida court to exercise jurisdiction over Hudson Capital in this lawsuit, we reverse. I.
Odicho Iecho alleges that he suffered personal injuries when he tripped over a "worn step" at the apartment he rented in Largo. He sued both Westdale Waterchase, LLC (Westdale), and Hudson Capital, alleging one count of negligence against each entity under a theory of premises liability. The ownership of Mr. Iecho's rented apartment was a subject of some attention in the proceedings below, and so we will summarize the evidence the parties put before the circuit court over the course of the pleadings.
The identity of the defendants and corresponding allegations of personal jurisdiction have evolved since the onset of the lawsuit and over the course of jurisdictional discovery. The operative pleading before the circuit court was Mr. Iecho's third amended complaint.
Hudson Capital submitted the affidavit and deposition testimony of its general counsel, who testified that (1) Hudson Capital is a Delaware limited liability company; (2) it has never owned, possessed or controlled any real property in Florida, nor has it ever conducted any business in the state; (3) it has no agents, employees, or offices in Florida; and (4) it is not a managing member or a member of Westdale. According to the general counsel, Westdale was the title owner of the apartment property; Hudson Capital had only an "indirect interest" through a "very complex" real estate financing portfolio, which apparently included Westdale.
It was suggested below that Westdale was a part of a "REIT," or real estate investment trust that, apparently, Hudson Capital held an ownership stake in.
A corporate representative for Westdale testified that all the employees and onsite staff of the apartment property were employed by Westdale Asset Management, Ltd. He affirmed that Hudson Capital was not a member of Westdale nor did it own Westdale's apartment property but was instead one of "numerous members of the ownership group." He also affirmed that there were no management or contractual agreements between Hudson Capital and Westdale.
However, as Mr. Iecho pointed out from the various deposition transcripts, Hudson Capital did have an ownership interest in Westdale. Hudson Capital also hired Westdale Asset Management to manage the apartment property. It received financial and accounting statements in connection with its interest in Westdale. And Hudson Capital procured liability insurance for the apartment property.
Mr. Iecho's third amended complaint included numerous broadly stated allegations that were clearly meant to implicate Florida's Long Arm Statute. Our review focuses on the actual evidence adduced before the circuit court. See Wendt v. Horowitz , 822 So. 2d 1252, 1254 (Fla. 2002) ("Because this case arises from a motion to dismiss for lack of personal jurisdiction, we derive the facts from the affidavits in support of the motion to dismiss, and the transcripts and records submitted in opposition to the motion to dismiss."). Mr. Iecho submitted no affidavits but instead framed his arguments around the deposition transcripts furnished by Hudson Capital.
This latter point became the focal point of the circuit court's order denying Hudson Capital's motion to dismiss. According to the court's order entered on December 2, 2021, because Hudson Capital "purchased a commercial liability policy to cover losses such as the slip and fall at issue in this case" its conduct "clearly [fell] under the Florida Long Arm Statute, F.S. 48.193 [(1)(a)4] ... ‘[c]ontracting to insure a person, property, or risk located within the state at the time of contracting.’ " The court was also persuaded that since Westdale was "a part of [Hudson Capital's] portfolio by virtue of membership interests," it necessarily "owned a portion" of Westdale. Finally, the court noted that Hudson Capital "managed" financial and accounting data pertaining to Westdale insofar as Westdale comprised a portion of Hudson Capital's financial portfolio.
II.
The circuit court stayed the underlying proceedings while Hudson Capital pursued this appeal, an appeal over which we have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(B) ; see also Fla. R. App. P. 9.130(a)(3)(C)(i). Our review is de novo. See Wendt v. Horowitz , 822 So. 2d 1252, 1256 (Fla. 2002) ; Burke Prods., Inc. v. Access Elecs., LLC , 311 So. 3d 145, 148 (Fla. 2d DCA 2020).
It is well established that determining the propriety of a plaintiff's attempt to exercise long-arm jurisdiction over a foreign defendant is a two-step inquiry. Venetian Salami Co. v. Parthenais , 554 So. 2d 499, 502 (Fla. 1989) ; Kin Yong Lung Indus. Co. v. Temple , 816 So. 2d 663, 666 (Fla. 2d DCA 2002). The first inquiry is whether the plaintiff has alleged sufficient jurisdictional facts to subject the defendant to long-arm jurisdiction under section 48.193, Florida Statutes. Venetian Salami , 554 So. 2d at 502 ; Kin Yong Lung Indus. Co. , 816 So. 2d at 666 ; see also Doe v. Thompson , 620 So. 2d 1004, 1004 (Fla. 1993). If the plaintiff has done so, the second inquiry is whether the defendant possesses sufficient minimum contacts with Florida to satisfy constitutional due process requirements. Venetian Salami , 554 So. 2d at 500 ; Kin Yong Lung Indus. Co. , 816 So. 2d at 666. This requires the court to determine whether the defendant has availed itself of the privilege of doing business in Florida or has committed acts with an effect in Florida such that it would anticipate being haled into Florida's courts. World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286 [100 S.Ct. 559, 62 L.Ed.2d 490 (1980)] ; Res. Healthcare of Am., Inc. v. McKinney , 940 So. 2d 1139, 1141 (Fla. 2d DCA 2006).
Hilltopper Holding Corp. v. Est. of Cutchin ex rel. Engle , 955 So. 2d 598, 600-01 (Fla. 2d DCA 2007).
Because Hudson Capital refuted Mr. Iecho's jurisdictional allegations with affidavits and deposition testimony, Mr. Iecho bore the burden "to prove by affidavit or other sworn proof that a basis for long-arm jurisdiction exists." See Hilltopper Holding Corp. , 955 So. 2d at 602 (citing Venetian Salami , 554 So. 2d at 502 ; Kin Yong Lung Indus. Co. , 816 So. 2d at 666 ).
The first prong of this inquiry requires us to review a statute's application, and so "our task is to give effect to the words that the legislature has employed in the statutory text. ‘The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’ " Lab'y Corp. of Am. v. Davis , 339 So.3d 318, 323 (Fla. May 26, 2022) (quoting Ham v. Portfolio Recovery Assocs. , 308 So. 3d 942, 946 (Fla. 2020) ).
III.
We will first address the Long Arm Statute and the fact that Hudson Capital had procured commercial insurance for Westdale's apartment property. Section 48.193(1)(a), Florida Statutes (2020), provides, in pertinent part:
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:
....
4. Contracting to insure a person, property, or risk located within this state at the time of contracting.
"Contracting to insure" property may bear a superficial resemblance to Hudson Capital's procurement of an insurance policy on behalf of Westdale; but, on closer examination, it simply is not a viable application of the statute's text. To the contrary, this statutory provision's "plain and ordinary meaning," see Ortuzar v. Foley , 339 So.3d 456, 458 (Fla. 2d DCA May 18, 2022), connotes the act of contractually binding oneself to insure a person, property, or risk located within this state. Or as our sister district court summarized, "the statute's plain language requires the defendant to be an insurer." Schumacher Grp. of Del., Inc. v. Dictan , 327 So. 3d 404, 409 (Fla. 3d DCA 2021). Hudson Capital is not this property's insurer. Its purchase of a policy in which an insurance company agreed to insure Westdale's Florida property did not bring Hudson Capital within the ambit of section 48.193(1)(a) 4's text.
Nor does the fact that Hudson Capital's investment portfolio may have included Westdale implicate the Long Arm Statute for Mr. Iecho's negligence claim. See Schwartzberg v. Knobloch , 98 So. 3d 173, 181 (Fla. 2d DCA 2012) (holding that, absent additional evidence, a nonresident individual shareholder's ownership of a Florida corporation is insufficient to satisfy section 48.193(1) (citing Seabra v. Int'l Specialty Imps., Inc. , 869 So. 2d 732, 734 (Fla. 4th DCA 2004) ; Suroor v. First Inv. Corp. , 700 So. 2d 139, 141-42 (Fla. 5th DCA 1997) )); see also 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." (citing Greystone Tribeca Acquisition, L.L.C. v. Ronstrom , 863 So. 2d 473, 476 (Fla. 2d DCA 2004) ; Capital One Fin. Corp. v. Miller , 709 So. 2d 639, 640 (Fla. 2d DCA 1998) ; Walt Disney Co. v. Nelson , 677 So. 2d 400, 403 (Fla. 5th DCA 1996) ; Qualley v. Int'l Air Serv. Co. , 595 So. 2d 194, 196 (Fla. 3d DCA 1992) )).
In sum, the first prong of personal jurisdiction—a basis under the Long Arm Statute—is not present with respect to Mr. Iecho's claim against Hudson Capital. Moreover, it does not appear from the circuit court's order or its oral ruling that it considered the second prong of the personal jurisdiction analysis—that is, the due process implications of exercising personal jurisdiction over Hudson Capital and whether there were sufficient minimum contacts such that Hudson Capital "should reasonably anticipate being haled into" a Florida court. See Venetian Salami Co. , 554 So. 2d at 500 (quoting World-Wide Volkswagen Corp. , 444 U.S. at 297, 100 S.Ct. 559 ). The absence of that finding also compels reversal in this case. See Venetian Salami , 554 So. 2d at 502 ; cf. HJC Corp. v. Gallardo , 338 So.3d 316, 318 (Fla. 3d DCA Mar. 16, 2022) ("As in all cases in which a foreign corporate defendant challenges the trial court's exercise of personal jurisdiction, the trial court's resulting order should carefully analyze both prongs of Venetian Salami Co. v. Parthenais , 554 So. 2d 499 (Fla. 1989) ....").
"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." Moro Aircraft Leasing, Inc. v. Int'l Aviation Mktg., Inc. , 206 So. 3d 814, 817 (Fla. 2d DCA 2016) (quoting Woodard Chevrolet, Inc. v. Taylor Corp. , 949 So. 2d 268, 270 (Fla. 4th DCA 2007) ).
IV.
The evidence did not support the exercise of personal jurisdiction over Hudson Capital under the Long Arm Statute. And the circuit court made no finding that its assertion of jurisdiction over this nonresident defendant would not offend the Due Process Clause of the constitution. We, therefore, reverse the order denying Hudson Capital's motion to dismiss the third amended complaint. On remand, the court shall enter an order dismissing Hudson Capital from this action.
Reversed and remanded with instructions.
LaROSE and BLACK, JJ., Concur.