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TBI Caribbean Co. Ltd. v. Stafford-Smith, Inc.

Florida Court of Appeals, Third District

December 13, 2017

TBI Caribbean Company LTD., etc., et al., Appellants,
v.
Stafford-Smith, Inc., etc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An appeal from a non-final order from the Circuit Court for Miami-Dade County Lower Tribunal No. 16-9184, John Schlesinger, Judge.

          The Bain Law Firm P.L. and Basil L. Bain (Naples), for appellants.

          Vernon Litigation Group and Jeffrey S. Haut and Sara F. Hall (Naples), for appellee.

          Before SUAREZ, LOGUE, and SCALES, JJ.

          SUAREZ, J.

         TBI 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, we affirm.

         BACKGROUND

         TBI and 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 statute.

         In 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.

         ANALYSIS

         The 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.

         Stafford-Smith 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 ...


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