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Phelan v. Lawhon

Florida Court of Appeals, Third District

March 29, 2017

Damon Phelan, et al., Appellants,
v.
Michael Kevin Lawhon, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeals from a non-final order from the Circuit Court for Miami-Dade County Lower Tribunal No. 15-19884, John W. Thornton, Jr., Judge.

          Mound Cotton Wollan & Greengrass and Lionel F. Rivera and Brooke D. Oransky (Fort Lauderdale) and Barry Temkin (New York, NY); Akerman LLP and Kathy M. Klock and Jonathan B. Butler (West Palm Beach); Greensfelder, Hemker & Gale and Donald D. McBride and David W. Ybarra and Garrett C. Reuter, Jr. (St. Louis, MO), for appellants.

          Kozyak Tropin & Throckmorton and Charles W. Throckmorton and Vincent Alexander; Shapiro, Blasi, Wasserman and Aram C. Bloom (Boca Raton), for appellees.

          Before WELLS, ROTHENBERG and SALTER, JJ.

          SALTER, J.

         These three consolidated appeals were commenced by fourteen of twenty defendants from a non-final circuit court order denying their motions to dismiss for lack of personal jurisdiction. We affirm the order of denial as to twelve of those defendants, reversing the order only as to two of the defendants, Marc R. Chenot and Kevin J. Haberberger.

         I. The Third Amended Complaint

         The Third Amended Complaint, referred to in this opinion as the "Complaint, " was brought by three plaintiffs (appellees here) against the fourteen defendant/appellees and six other Florida-resident or Florida-connected defendants. The underlying dispute involves individuals and companies alleged to have: severed affiliations with plaintiff/appellee The Northwestern Mutual Life Insurance Company ("NML"); wrongfully used confidential information regarding NML insureds and policies; "twisted" or "churned"[1] NML's insureds and policies; tortiously interfered with the appellees' advantageous business relationships; and conspired as a group to engage in those activities in order to derive commissions from their new relationships with The Massachusetts Mutual Life Insurance Company ("Mass Mutual").[2] The other two plaintiffs are Michael Kevin Lawhon ("Lawhon"), an NML general agent individually and through South Florida Group, LLC, a Florida LLC owned and operated by Lawhon.

         The Complaint includes 230 numbered paragraphs in 92 pages of detailed allegations, sixteen separate causes of action, and 36 numbered exhibits comprising another 450 pages. The appellants filed motions to dismiss for lack of personal jurisdiction, together with affidavits in support of those motions.[3] In addition, jurisdictional discovery was taken, and each side relies on answers to interrogatories, documents, and deposition testimony to support its position here.

         II. Denial of the Motions; Three Separate Appeals

         In July 2016, the trial court entered a ten-page omnibus order denying the various motions to dismiss the Complaint for lack of personal jurisdiction. Three groups, a total of fourteen defendants, filed separate appeals and are represented by separate counsel in these consolidated appeals.

         A. Case No. 3D16-1675

         The ten appellees in this appeal (the "Missouri-Illinois Defendants"), [4] were agents and field managers for NML working primarily in St. Louis, Missouri, and nearby areas of Missouri and Illinois. Each of them left NML in 2014 and became agents of Mass. Mutual working under the direction of former NML general agent, and later Mass. Mutual general agent for the St. Louis area, appellee Damon Phelan ("Phelan"). Phelan (who has appealed individually in Case No. 3D16-1858, as detailed below) left NML and became the Mass. Mutual general agent for that area in August 2013. The Complaint alleges that Phelan was responsible as general agent for reviewing the suitability and marketing of the Mass. Mutual policies and products recommended by the Missouri-Illinois Defendants.

         Each of the Missouri-Illinois Defendants, except Chenot and Haberberger, became members of defendant Visionary Wealth Advisors, LLC ("VWA"), a Delaware limited liability company authorized to conduct business in Florida. VWA's officers and managing members include defendants and appellees (in consolidated Case No. 3D16-1838, also detailed below) Brett G. Gilliland ("Gilliland") and Timothy G. Hammett ("Hammett"). The Complaint alleges that VWA regularly conducts substantial business operations out of offices in Miami, St. Louis, and Edwardsville, Illinois. Two Florida-resident defendants, who did not seek dismissal for lack of personal jurisdiction and thus are not appellees here, Ricardo J. Ludert ("Ludert") and Charles R. Downs, Jr. ("Downs"), also conduct VWA business from their office in Miami.

         The Complaint alleges that Downs, also an NML agent for many years, became a co-general agent for Mass. Mutual in Miami shortly after Phelan and other defendants left NML. The Complaint also alleges that Downs breached NML regulations applicable to him under his contract by copying, electronically and physically, trade secrets of NML regarding hundreds of NML policyholders, before his July 2014 termination. The Complaint further alleges that Missouri-Illinois Defendants Clinard, Fox, Jones, and Scott Vieregge also copied and stole electronic and physical copies of such trade secrets before their respective termination dates with NML.

         B. Case ...


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