5D02-2809 XL Vision v. Holloway

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-2809

Case Date: 10/06/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2003

XL VISION, LLC., et al., Appellant, v. DAN R. HOLLOWAY, Appellee. ___________________________/ Opinion filed October 10, 2003. Non-Final Appeal from the Circuit Court for Brevard County, Meryl L. Allawas, Judge. Kenneth C. Crooks of Dean, Mead, et al., Melbourne, for Appellant. Stewart B. Capps of Stewart B. Capps, PA., Indialantic, for Appellee. CASE NO. 5D02-2809

THOMPSON, J. VennWorks, LLC, and Robert Bertoldi appeal an order denying their motion to dismiss for lack of personal jurisdiction. We affirm. In 2000, appellee Dan R. Holloway and XL Vision Incorporated entered an "at will" employment agreement under which XL Vision Incorporated would pay Holloway a salary and benefits including moving expenses, stock incentives, and bonuses. The contract was the letter offering Holloway the job of director of employee relations, and Holloway accepted the offer by signing the letter. The letter was signed

by David J. Illingsworth, President and Chief Operating Officer, and Holloway signed the letter in agreement. About a year later, Holloway received another letter from Illingsworth on the same letterhead. This letter informed Holloway that negotiations were under way for the transfer of XL Vision Incorporated's assets to XL Vision Limited Liability Company, a wholly owned subsidiary of VennWorks, and that if he resigned his position with XL Vision Incorporated, he would be hired under substantially the same terms by XL Vision Limited Liability Company. According to the letter, XL Vision Limited Liability Company would have the benefit of the 2000 agreement with respect to Holloway's non-compete agreement and certain stock grants. Under the proposed 2001 agreement, certain stock grants, held in the name of XL Vision Incorporated would be transferred to VennWorks, and VennWorks would assume XL Vision Incorporated's obligations under the stock grants. Holloway indicated his agreement by signing the letter. XL Vision Limited Liability Company's agreement was made "by" VennWorks as the sole member of XL Vision Limited Liability Company. VennWorks's agreement was made "by" Robert Bertoldi, President. Only a few months later, Holloway was terminated, according to his complaint, and he sued Bertoldi, VennWorks, and XL Vision Limited Liability Company for $121,650.00, which he claimed was still owed for his moving expenses, the balance of his bonus, and the balance of his severance package. XL VisionLimited Liability Company moved to dismiss for improper venue because its office was in Indian River County and not in Brevard County, where Holloway sued. This motion was eventually withdrawn. VennWorks and Bertoldi moved to dismiss for lack of personal jurisdiction based on Bertoldi's affidavit stating that he was a New York resident who did not own property in Florida, that he had not conducted business individually in Florida, that VennWorks was a Delaware limited liability company which did not -2-

conduct business in Florida, that VennWorks's sole connection to Florida was through its subsidiary, XL Vision Limited Liability Company, and that Bertoldi's sole connection to Florida was that he signed the 2001 letter to Holloway on behalf of VennWorks. The court reserved ruling on the motion to dismiss and allowed Holloway to amend his complaint. The amended complaint added a count for fraud based on alleged oral misrepresentations by VennWorks and Bertoldi that VennWorks would provide funds to cover the obligations owed Holloway by XL Vision Limited Liability Company. The complaint also alleged that XL Vision Limited Liability Company was the alter ego of VennWorks and Bertoldi. Relying on Bertoldi's previously submitted affidavit, VennWorks and Bertoldi again moved to dismiss the complaint on jurisdictional grounds. The court denied the motion, and VennWorks and Bertoldi appeal, contending that the court erred in failing to hold an evidentiary hearing to resolve discrepancies between the jurisdictional allegations of the verified amended complaint and Bertoldi's affidavit. We affirm because there were no discrepancies between the complaint and the affidavit. Determining whether there is personal jurisdiction is a two-part inquiry. Hartcourt Companies, Inc. v. Hogue, 817 So. 2d 1067, 1070 (Fla. 5th DCA 2002). First, it must be determined whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of section 48.193, Florida Statutes, Florida's long-arm statute. Id. (citing Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989)). If the allegations are within the ambit of the statute, it must then be determined whether the exercise of jurisdiction is consistent with due process. Id. (citing Venetian Salami, 554 So. 2d at 502). The exercise of personal jurisdiction comports with due process if the defendant purposefully established "minimum contacts" in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 -3-

(1985).

Holloway's complaint alleges that the three defendants owe him money pursuant to a

contract, that the money was to be paid to him in Florida after he established a household in Florida, and that the payment was for work he was to perform and did perform in Florida. Furthermore, the complaint alleges that Bertoldi and VennWorks fraudulently induced Holloway to resign from XL Vision Incorporated and to enter the contract with XL Vision Limited Liability Company for work Holloway was to perform and did perform in Florida. These allegations are sufficient for personal jurisdiction under the long-arm statute. See Hartcourt Companies, 817 So. 2d at 1071 ("Under section 48.193(1)(g), a person submits himself to the jurisdiction of this state by `[b]reaching a contract in this state by failing to perform acts required by the contract to be performed in this state'"); see also

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