WRAPAPAN, LLC, LORRAINE GIRARD, and ROBERT POLLIFRONE v. JEFF ELSON

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

WRAPAPAN, LLC, a New York Limited Liability Company,
LORRAINE GIRARD, and ROBERT POLLIFRONE,
Appellants,

v.

JEFF ELSON,
Appellee.

No. 4D20-2454

[June 9, 2021]

Appeal of a nonfinal order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Lisa S. Small, Judge; L.T. Case No.
50-2019-CA-015840-XXXX-MB.

Gregory R. Elder and Beverly D. Eisenstadt of the Law Offices of
Gregory R. Elder, PLLC, Boca Raton, for appellants.

John M. Mullin and Sarah M. Leon of Tripp Scott, P.A., Fort Lauderdale,
for appellee.

CIKLIN, J.

Appellants Wrapapan, LLC, Lorraine Girard, and Robert Pollifrone
(hereinafter referred to collectively as, “Wrapapan”) appeal from a nonfinal
order denying their motion to dismiss for lack of personal jurisdiction. See
Fla. R. App. P. 9.130(a)(3)(C)(i). The motion to dismiss was directed to
appellee Jeff Elson’s (“Elson”) complaint for declaratory relief seeking a
judicial determination of his ownership interest in a “business venture”
involving Wrapapan. We reverse because no showing was made that
Wrapapan had sufficient statutory jurisdiction or minimum contacts with
Florida to satisfy due process. See Astro Aluminum Treating Co. v. Inter
Contal, Inc., 296 So. 3d 462, 464 (Fla. 4th DCA 2020). More specifically,
nothing about the anticipated business venture required any type of
performance in Florida. See Stonepeak Partners, LP v. Tall Tower Capital,
LLC, 231 So. 3d 548, 557 (Fla. 2d DCA 2017).

Background
 The operative complaint alleged that New York-based Wrapapan agreed
to carry on a business venture with Elson, a Florida resident. Though the
parties engaged a New York attorney to prepare documents to memorialize
the parties’ respective ownership interests, no agreements were ever
executed.

Elson alleged that the parties anticipated that the New York LLC entity
Wrapapan, would ultimately transact “substantial business activity” in
Florida by selling and distributing its goods. Elson also alleged that
Wrapapan “breached oral agreements” to enter formal written contracts
with him. Elson alleged that, as a result, Wrapapan was subject to
jurisdiction in Florida pursuant to section 48.193, Florida Statutes (2020).

Motion to Dismiss and Submissions

There is a two-step analysis to determine whether a Florida court has
personal jurisdiction over a nonresident defendant. Step one focuses on a
plaintiff’s complaint and whether it either tracks the language of Florida’s
long-arm statute or alleges facts sufficient to show that a defendant’s
actions fit within one or more subsections of the statute. Venetian Salami
Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989); Int’l Univ. of Health Scis.
Ltd., Inc. v. Abeles, 299 So. 3d 405, 407 (Fla. 4th DCA 2020).

Under the second step, assuming the complaint is legally sufficient, the
trial court must consider whether a defendant has satisfied “minimum
contacts” with Florida such that the exercise of jurisdiction over a
defendant complies with due process requirements and does not offend
“traditional notions of fair play and substantial justice.” Venetian Salami,
554 So. 2d at 502 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)); see also Astro Aluminum, 296 So. 3d at 466; Johnny’s Pool Super
Ctr., Inc. v. Foreverpools Caribbean, LLC, 307 So. 3d 832, 836 (Fla. 3d DCA
2020) (recognizing that the statutory prong of the analysis is applied
broadly, while the constitutional due process prong imposes a more
restrictive requirement that is controlled by Supreme Court precedent
interpreting the due process clause).

Wrapapan moved to dismiss the complaint challenging both the
sufficiency of the allegations contained within the complaint and the due
process-based minimum contacts test. Wrapapan furnished individual
declarations wherein the parties attested to their New York residency and
that they never conducted business in Florida. They alleged the absence
of any communications between Wrapapan and Elson in Florida and that
even the unexecuted agreements were drafted in New York.

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 In response, Elson filed his affidavit and the deposition of a New York
attorney who drafted the unsigned business documents. The attorney
recalled two meetings in New York—none in Florida—and many phone
conversations. He also recalled that sometime during these contractual
discussions, Elson moved his permanent residence from New York to
Florida. The New York attorney received an email with a signature block
that showed a Florida address for Elson. He added that he did not know
what Wrapapan might have known about Elson’s residence or location.

Within his affidavit, Elson attested that he was a Florida resident well
before the business discussions, that Wrapapan knew this at all times,
and that while Elson was living in Florida, there were phone calls, emails,
and texts among the parties regarding the “business.” Elson alleged that
he traveled from Fort Lauderdale to Chicago to meet Wrapapan’s Lorraine
Girard so that they could attend a trade show together, and that he
traveled to other places on the business’s behalf, “all while [Elson was]
living in Florida.” Elson added that prior to a trip to China, Girard supplied
him with proposed theme images for the business which she sent to Elson
in Florida.

The trial court denied the motion to dismiss, finding that Elson had
established personal jurisdiction over the nonresident appellants.

Analysis

“A trial court’s ruling on a motion to dismiss for lack of personal
jurisdiction is reviewed de novo.” NHB Advisors, Inc. v. Czyzyk, 95 So. 3d
444, 447 (Fla. 4th DCA 2012). We set forth our analysis to explain why
the trial court erred.

Statutory Basis

To establish the first prong of the personal jurisdiction analysis, “the
plaintiff must allege sufficient jurisdictional facts to bring the action within
the ambit of Florida's long-arm statute.” Astro Aluminum, 296 So. 3d at
464. In relevant part, the statute provides:

(1)(a) A person, whether or not a citizen or resident of this
state, who personally or through an agent does any of the acts
enumerated in this subsection thereby submits himself or
herself and, if he or she is a natural person, his or her
personal representative to the jurisdiction of the courts of this
state for any cause of action arising from any of the following
acts:

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 1. Operating, conducting, engaging in, or carrying on a
business or business venture in this state or having an office
or agency in this state.

§ 48.193(1)(a)1., Fla. Stat. (2020).

“For purposes of section 48.193(1)(a)(1), to demonstrate that a
nonresident defendant is ‘carrying on business’ the defendant’s activities
‘must be considered collectively and show a general course of business
activity in the state for pecuniary benefit.’” Stonepeak Partners, 231 So.
3d at 555 (quoting RMS Titanic, Inc. v. Kingsmen Creatives, Ltd., 579 Fed.
Appx. 779, 783 (11th Cir. 2014)). “Factors to consider in making this
determination include: (1) the presence and operation of an office in
Florida; (2) the possession and maintenance of a license to do business in
Florida; (3) the number of Florida clients served; and (4) the percentage of
overall revenue gleaned from Florida clients.” Id. (citation and quotation
marks omitted).

In its denial of the motion to dismiss, the trial court determined that
Elson established jurisdiction over Wrapapan pursuant to section 48.193
by “demonstrating that Defendants carried on a business venture in
Florida.” The trial court relied on Sutton v. Smith, 603 So. 2d 693 (Fla. 2d
DCA 2017), which is distinguishable.

Sutton involved an alleged breach of a golf sponsorship agreement
between a Florida plaintiff and a Michigan defendant, a partnership. Id.
at 694. Plaintiff Sutton lived in Florida, was expected to and did play PGA
tour events in Florida, and was also to be provided health insurance in
Florida. Id. at 698. Further, all earnings from Sutton’s golf-related
activities in Florida and elsewhere were to be paid by the PGA from its
headquarters and bank account in Florida to the partnership account in
Michigan, and the partnership was required to disburse funds from the
partnership account to Sutton’s Florida bank account to enable him to
perform golf-related activities and participate in tour events for the benefit
of the business venture. Id. at 698-99. The appellate court reversed the
trial court’s dismissal of the action for lack of jurisdiction, concluding that
the undisputed facts placed what was clearly a joint business venture
within the long arm statute and showed that its members were operating,
conducting, engaging in, or carrying on the business venture in Florida.
Id. at 699.

Here, there were only allegations of a business venture, but the
defendant’s affidavits refuted those allegations. While Elson may have

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believed he was part of a business venture, established law belies such a
conclusion. There was no executed agreement, and it is undisputed that
the negotiation and drafting of the unexecuted agreements occurred in
New York. Those agreements required no performance in Florida, nor did
any meetings concerning the venture take place in Florida. The appellants
do not have an office in Florida and do not hold a license to operate in
Florida. Thus, contrary to the trial court’s ruling, the defendants did not
carry on a business venture in Florida. See Stonepeak Partners, 231 So.
3d at 557 (rejecting finding that appellant engaged in a business venture
in Florida even where several meetings took place in Florida).
Consequently, the first prong of the jurisdictional analysis was not
established.

Minimum Contacts

The trial court correctly recognized that the due process element of
Venetian Salami is satisfied “if the defendant purposefully directs activities
at Florida and litigation arises out of those activities, or the defendant
purposefully avails himself of the privilege of conducting activities within
the forum state.” Beta Drywall Acquisition, LLC v. Mintz & Fraade, P.C., 9
So. 3d 651, 653 (Fla. 4th DCA 2009) (citation omitted). The trial court was
persuaded that Wrapapan could and should reasonably anticipate being
brought into a Florida court because Wrapapan contacted Elson at his
office in Florida and requested that he engage in business for Wrapapan
from Elson’s Florida office. The trial court considered Wrapapan’s
declarations, in which Wrapapan attested that it never conducted
business in Florida, but found that they were contradicted by emails
between the parties. Our review of the documents does not support this
conclusion. None of the emails concerned the nonresidents or established
their contacts with Florida. At the very best, the emails merely showed
that Elson resided in Florida during the negotiations, which colloquially
speaking is neither here nor there.

No evidence was presented that the would-be business venture ever
anticipated conducting any activities in Florida. The only apparent
connection to Florida was that, at some point during the parties’
discussions, Elson apparently moved to Florida. As previously suggested,
where Elson might reside is not legally relevant to the terms of the
unexecuted agreement. See generally Empire Indus., Inc. v. Kaplan, 695
So. 2d 919, 920-21 (Fla. 4th DCA 1997) (finding sufficient minimum
contacts to satisfy due process requirements where, in addition to an
agreement establishing a business venture that contemplated
development and marketing of a toy in Florida, the defendants traveled to
Florida several times to negotiate the contract, sent artwork to Florida for

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approval, and assisted the research and development team in constructing
prototypes in Florida). In today’s worldwide economy where people now
work remotely from literally anywhere on the globe, the mere residence of
one of the parties to a business arrangement—without more—cannot be
sufficient to satisfy the minimum contacts required under a due process
analysis.

For these reasons, we reverse the trial court’s order denying appellants’
motion to dismiss and remand for entry of an order dismissing the
complaint against them for lack of personal jurisdiction. Consequently,
we need not address appellants’ forum nonconveniens argument.

Reversed and remanded.

WARNER and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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