final until disposition of timely filed motion for rehearing.
appeal from a non-final order from the Circuit Court for
Miami-Dade County Lower Tribunal No. 16-9184, John
Bain Law Firm P.L. and Basil L. Bain (Naples), for
Litigation Group and Jeffrey S. Haut and Sara F. Hall
(Naples), for appellee.
SUAREZ, LOGUE, and SCALES, JJ.
Caribbean Company, Ltd. and Jesus Hinojosa
(Appellants/Defendants below) appeal from the trial
court's non-final order denying their motions to dismiss
Stafford-Smith, Inc.'s (Appellee/Plaintiff below)
Complaint for failure to allege a sufficient basis for
invoking personal jurisdiction. Because we find that TBI and
Hinojosa waived their objection to personal jurisdiction by
seeking affirmative relief under a Subcontract Agreement,
which was inconsistent with their jurisdictional objection,
Stafford-Smith entered into a Subcontract Agreement in which
TBI, the contractor, agreed to pay Stafford-Smith, the
subcontractor, to complete work on the Baha Mar resort in
Nassau, Bahamas. According to the Complaint, Hinojosa signed
a personal guarantee of TBI's debt. The Complaint's
only allegation regarding personal jurisdiction was the
following: "Pursuant to the explicit terms of the
contract, paragraph 38-C, jurisdiction is proper in Miami,
Florida." Paragraph 38(c), in turn, provides as follows:
To the extent that any dispute, controversy, or claim arises
under this Subcontract and a suit is initiated by either
party, the suit, shall be brought in and before the State
Court in Dade County, Florida, wherein exclusive jurisdiction
shall lie. This agreement on jurisdiction/venue shall
override any conflicting state statute and, for any such
lawsuit, Subcontractor hereby waives any rights to assert any
different jurisdiction/venue pursuant to a conflicting state
response to the Complaint, TBI and Hinojosa filed motions to
dismiss for failure to state causes of action for personal
guarantee and breach. TBI and Hinojosa also sought dismissal
for failure to allege a sufficient basis for asserting
personal jurisdiction. Both motions included a request for
attorney's fees pursuant to a fee provision in the
Subcontract Agreement. The circuit court denied the motions
to dismiss, and TBI and Hinojosa appeal.
only issues on appeal concern personal jurisdiction. TBI and
Hinojosa argue that the circuit court erred in denying their
motions to dismiss because the Complaint was required to
allege sufficient bases for Florida courts to exercise
personal jurisdiction, and the only allegation, a single
reference to the Subcontract Agreement, was insufficient.
See, e.g., Four Star Resorts Bahamas, Ltd. v.
Allegro Resorts Mgmt. Servs., Ltd., 811 So.2d 809, 811
(Fla. 3d DCA 2002) ("The legislature has set forth in
our long arm statute the policy of this State concerning when
Florida courts can exercise in personam jurisdiction over
non-resident defendants. Conspicuously absent from the long
arm statute is any provision for submission to in personam
jurisdiction merely by contractual agreement." (quoting
McRae v. J.D./M.D., Inc., 511 So.2d 540, 543 (Fla.
1987))). We agree. The Complaint was facially insufficient
because the only alleged basis for personal jurisdiction was
the Subcontract Agreement's forum selection clause.
does not dispute that the Complaint was insufficient.
Instead, it argues (1) that the appeal should be dismissed as
moot because it sought to amend the Complaint below and (2)
TBI and Hinojosa waived their objection to personal