5D02-1559 OSI Industries v. Carter

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-1559

Case Date: 01/06/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2002

OSI INDUSTRIES, INC., etc., et al., Appellants, v. Case No. 5D02-1559

THOMAS C. CARTER, Appellee. / Opinion Filed January 10, 2003 Non-Final Appeal from the Circuit Court for Orange County, Dorothy J. Russell, Judge. I. William Spivey, II, of Greenberg Traurig, P.A., Orlando, and Elliot H. Scherker and Brenda K. Supple, of Greenberg Traurig, P.A., Miami, for Appellants. M. Gary Toole, John R. Reid and Sharon Lee Stedman, of Cabaniss Smith Toole & Wiggins PL, Maitland, for Appellee. PLEUS, J. Sheldon Lavin appeals the denial of his motion to dismiss the second amended complaint of Thomas Carter. Lavin argues that the trial court erred in failing to conduct an evidentiary hearing before determining that personal jurisdiction existed. We affirm. Carter filed a second amended complaint against OSI Industries, OSI Distribution and Lavin, asserting counts of fraudulent misrepresentation and negligent representation against

each defendant. This appeal concerns only the counts against Lavin. The complaint alleged the following: Carter is a resident of Orange County, Florida and Lavin is a resident of Highland Park, Illinois. In March 1988, Carter was offered a job as an executive employee of OSI Distribution and OSI Industries. He was promised salary and benefits. In lieu of a traditional pension or retirement plan, he was further promised "shares of OSI Distribution or its successor entity, with a minimum of 6.7 percent equity interest guaranteed and a reasonable share of the profits of that entity" to be provided within a "reasonable time" after beginning employment. In reliance on these assurances, Carter became vice president of OSI Distribution. The complaint further alleges that: 11. In the spring of 1993, summer of 1994 and October 1994, Carter was again repeatedly assured by representatives of OSI Industries and OSI Distribution, including but not limited to S. Thomas Clements, Sheldon Lavin, Jerry Ford and Paul Klassman that the specified equity interest was secure and would be paid to him if he continued to remain in his executive position with OSI Distribution and OSI Industries. Many of the promises and representations outlined herein were made to Carter while he was located in Florida, and were made either in person or by telephone. * * *

34. As a principal of OSI Industries and a partner of OSI Distribution, in March 1988, and the spring, summer and fall of 1993, and October 1994, Lavin knowingly and falsely made misrepresentations to Carter throughout his years of employment, without any intent to perform, assuring him that if he accepted and continued in an executive position of employment with OSI Distribution and OSI Industries, he would receive, in lieu of traditional pension or retirement plan, shares of OSI Distribution or its successor entity. . . .

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35. In reliance upon Lavin's false representations regarding equity payments, Carter continued in his employment and fully performed all his duties and obligations as an OSI executive employee, with many of said duties being performed in Florida. * * *

38. The specified equity interest was to be paid to Carter in Florida, and the harm from Lavin's fraudulent misrepresentations has occurred in Florida. Lavin filed a motion to dismiss contesting personal jurisdiction. In his supporting affidavit, Lavin alleged that: 7. I do not believe I have ever made any false statements or misrepresentations to Plaintiff, either in person or by telephone. During 1988, 1993 and 1994 (the times on which I supposedly made false statements to Plaintiff), Plaintiff, like me, did not work or live in the state of Florida. During 1988, 1993 and 1994, I never had any in person conversation(s) with Plaintiff in the state of Florida, and I am positive I did not make any false statements to him in the state of Florida. To the extent I had any in-person conversations with Plaintiff in 1988, 1993 or 1994, those conversations necessarily took place in Illinois. 8. I do not specifically recall having any telephone conversations with Plaintiff in 1988, 1993 or 1994 while he (Plaintiff) was located in Florida and I was located somewhere else. While it is possible that such telephone conversations took place, I do not recall them; to the extent there were any such telephone conversations, they were necessarily very limited in nature (in terms of the number, duration and substance of any such telephone conversations). If I had any significant degree of telephonic contact with Plaintiff in 1988, 1993 or 1994, I would in all likelihood recall those conversations. Even assuming I had telephone conversations with Plaintiff in 1988, 1993 or 1994, I do not think those conversations were sufficiently numerous or substantive to force me (in my individual capacity) to defend a lawsuit in the state of Florida.

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Similar allegations were made regarding negligent misrepresentation. 3

In response, Carter filed affidavits, which included the following allegations: 3. One of these misrepresentations was made by Sheldon Lavin directly to me by telephone while I was located in Florida. This event occurred in October 1994. Mr. Lavin called my office, and during this telephone conversation, he assured me that I would be provided the specified equity interests in OSI Distribution, L.P., or its successor entity. At the hearing on Lavin's motion to dismiss, the trial court heard argument from both sides and denied the motion without an evidentiary hearing. As grounds, the court stated in pertinent part: Plaintiff also asserts that long-arm jurisdiction over Lavin is appropriate pursuant to Section 48.193(1)(b), which states that a person is subject to the jurisdiction of Florida's courts if the person commits a tort in Florida. See

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