Stonepeak Partners, LP v. Tall Tower Capital, LLC ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STONEPEAK PARTNERS, LP, )
)
Appellant, )
)
v. ) Case No. 2D16-4204
)
TALL TOWER CAPITAL, LLC, )
)
Appellee. )
___________________________________ )
Opinion filed August 11, 2017.
Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Polk County;
Andrea Teves Smith, Judge.
Christine Marlewski (withdrew after briefing)
and Brian K. Oblow (substituted as counsel
of record) of Gray Robinson, P.A., Tampa,
and Joseph M. McLaughlin of Simpson,
Thacher & Bartlett, LLP, New York, for
Appellant.
Robert L. Rocke and Raul Valles of Rocke,
McLean & Sbar, P.A., Tampa, for Appellee.
SILBERMAN, Judge.
Stonepeak Partners, LP, appeals an order denying its motion to dismiss
for lack of personal jurisdiction in this action brought by Tall Tower Capital, LLC, for
breach of contract and breach of fiduciary duty. Because the trial court erred in
determining that Tall Tower established jurisdiction based upon the grounds that
Stonepeak committed a tortious act in Florida and engaged in a business venture in
Florida, we reverse and remand for the trial court to dismiss the action.
Stonepeak is an investment firm incorporated under the laws of Delaware
with offices and its principal place of business in New York. Stonepeak has no office,
employees, or clients in Florida. Tall Tower is a Florida firm headquartered in Lakeland,
Florida, that manages broadcast towers and communications infrastructure throughout
the United States. Tall Tower solicited Stonepeak in New York to invest in broadcast
towers that were being offered for sale by CC Media Holdings, Inc. (Clear Channel), a
Texas company. Clear Channel planned to sell 472 broadcast towers, and 436 of those
towers were located outside Florida.
In January 2014, Stonepeak and Tall Tower entered into a confidentiality
and noncircumvention agreement (the Confidentiality Agreement) concerning the Clear
Channel transaction. The Confidentiality Agreement did not require Stonepeak "to enter
into any business relationship or transaction" or "to deal with" Tall Tower. Tall Tower
employees regularly made visits to New York to discuss the Clear Channel transaction,
and the parties communicated frequently by email. Stonepeak employees or its agents
made four visits to Florida regarding the Clear Channel transaction. Tall Tower and
Stonepeak negotiated with Clear Channel for almost a year, but their bid was
unsuccessful.
During the course of the negotiations, Stonepeak made an equity
investment in Vertical Bridge Holding, LLC, a Florida company, and acquired a
seventeen percent interest in Vertical Bridge. As a managing director of Stonepeak,
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Trent Vichie serves on boards of directors of "portfolio companies" in which Stonepeak
has an ownership interest. Vichie served on Vertical Bridge's board of directors as a
representative of Stonepeak. Vertical Bridge had the successful bid in the Clear
Channel sale.
Tall Tower subsequently filed its complaint, alleging that Stonepeak
breached the Confidentiality Agreement and breached its fiduciary duty. Tall Tower
alleged that by virtue of the Confidentiality Agreement the parties were "engaged as
joint venturers." It further alleged that the fiduciary duty "arose as a result of the
[Confidentiality] Agreement and the parties' joint negotiations with Clear Channel."
Stonepeak filed a motion to dismiss for lack of personal jurisdiction and
submitted affidavits from Stonepeak's Trent Vichie and Luke Taylor in support. Tall
Tower opposed the motion and filed a supporting affidavit from Robert Harper, a
managing member of Tall Tower. The trial court determined that the affidavits were in
factual conflict and that a limited evidentiary hearing was required. See Canale v.
Rubin, 20 So. 3d 463, 469 (Fla. 2d DCA 2009). After an evidentiary hearing, the trial
court entered an order denying the motion to dismiss. Stonepeak contends that the trial
court erred in determining that Stonepeak is subject to personal jurisdiction in Florida
based on section 48.193(1)(a)(2), Florida Statutes (2013), for committing a tortious act
in Florida and on section 48.193(1)(a)(1) for engaging in a business venture in Florida.
Section 48.193(1)(a)(2)—Committing a Tortious Act in Florida
Personal jurisdiction under Florida's long-arm statute may be general or
specific, depending on the nature of the defendant's contacts with Florida. Wiggins v.
Tigrent, Inc., 147 So. 3d 76, 85 (Fla. 2d DCA 2014). Section 48.193(1)(a)(2) of Florida's
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long-arm statute applies to a lawsuit "arising from" a person "[c]ommitting a tortious act
within this state." Such a lawsuit is based on specific jurisdiction. See Wiggins, 147 So.
3d at 86. Tall Tower alleged that Stonepeak committed a tortious act in Florida by
breaching its fiduciary duty to Tall Tower.
At an evidentiary hearing on personal jurisdiction, the evidence must
establish jurisdiction by a preponderance of the evidence. See Passy v. Lewis, 553 So.
2d 223, 224 (Fla. 1st DCA 1989). We typically conduct a de novo review of an order on
a motion to dismiss for lack of personal jurisdiction. See Rautenberg v. Falz, 193 So.
3d 924, 928 (Fla. 2d DCA 2016); Dev. Corp. of Palm Beach v. WBC Constr., L.L.C., 925
So. 2d 1156, 1160 (Fla. 4th DCA 2006). But when the trial court relies on witness
testimony, we defer to the trial court's determination of witness credibility. Dev. Corp.,
925 So. 2d at 1160. We then apply the facts to the law based on de novo review. Id.In Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989), the
Florida Supreme Court set forth the two-step analysis necessary to determine whether
the trial court has personal jurisdiction over a nonresident defendant. See Rautenberg,
193 So. 3d at 928. The trial court must first determine whether the complaint alleges
sufficient jurisdictional facts to bring the action within the ambit of the long-arm statute.
Id. If it does, then the trial court must determine whether sufficient minimum contacts
are shown to satisfy due process requirements. Id. Tall Tower alleged acts to establish
specific jurisdiction under the long-arm statute of committing a tortious act in Florida and
engaging in a business venture in Florida. See § 48.193(1)(a)(1), (1)(a)(2). Specific
jurisdiction also "requires a causal connection between the defendant's activities in
Florida and the plaintiff's cause of action, a requirement known as 'connexity.' " Canale,
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20 So. 3d at 466 (quoting Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002)). The
long-arm statute is to be strictly construed in favor of the nonresident defendant. Navas
v. Brand, 130 So. 3d 766, 770 (Fla. 3d DCA 2014).
Because the tort alleged is breach of a fiduciary duty, Stonepeak must be
shown to owe a fiduciary duty to Tall Tower. A fiduciary relationship does not exist in an
arms' length transaction. Mac-Gray Servs., Inc. v. DeGeorge, 913 So. 2d 630, 633 (Fla.
4th DCA 2005); Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So. 2d 536, 541
(Fla. 5th DCA 2003). But joint venturers owe each other a duty of loyalty, breach of
which gives rise to a claim for breach of fiduciary duty. See New Vista Dev. Corp. v.
Doral Terrace Assocs., 878 So. 2d 462, 464 (Fla. 3d DCA 2004).
The joint venture relationship must arise from a contract. Jackson-Shaw
Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 1089 (Fla. 2008). To establish a joint
venture, the contract must contain the following five elements: "(1) a community of
interest in the performance of the common purpose, (2) joint control or right of control,
(3) a joint proprietary interest in the subject matter, (4) a right to share in the profits and
(5) a duty to share in any losses which may be sustained." Id. (quoting Kislak v.
Kreedian, 95 So. 2d 510, 515 (Fla. 1957)). If one element is absent it precludes the
finding of a joint venture. Id. A party asserting that an unwritten, implied contract is the
basis of a joint venture—as Tall Tower appears to argue on appeal—faces a "heavy and
difficult" burden as it still must allege and prove that the implied contract contains the
same five elements of a joint venture. Kislak, 95 So. 2d at 515. As the Florida
Supreme Court noted, "[b]usiness relationships are not customarily entered into in a
casual manner[,]" particularly business relationships of significant magnitude. Id.-5-
Tall Tower contends that it is not necessary to prove the elements of a
joint venture because "the appropriate inquiry is whether the tort as alleged in the
complaint occurred in Florida, and not whether the alleged tort actually occurred."
Navas, 130 So. 3d at 770. In Navas, the defendants did not provide affidavits to contest
jurisdiction, and the trial court did not conduct an evidentiary hearing. See id. We
recognize that "a full-blown trial" to prove that Stonepeak committed the tort is not
required. Acquadro v. Bergeron, 851 So. 2d 665, 669 (Fla. 2003). But "[i]n analyzing
whether tortious conduct has occurred within Florida, courts have looked to whether the
nonresident defendant 'committed a substantial aspect of the alleged tort in Florida.' "
NHB Advisors, Inc. v. Czyzyk, 95 So. 3d 444, 448 (Fla. 4th DCA 2012) (quoting Watts v.
Haun, 393 So. 2d 54, 56 (Fla. 2d DCA 1981)).
Here, the trial court did not appear to find that a joint venture existed
based on any written contract. The trial court noted casual references in emails to a
"JV," statements that Stonepeak was acting in partnership with Tall Tower, and that
according to Tall Tower the parties discussed creating a partnership. The trial court
"conclude[d] that Stonepeak's investment and participation in Vertical Bridge's
successful attempt to acquire the Clear Channel assets (some of which are located in
Florida) as alleged in the Complaint and as testified to at the evidentiary hearing may
constitute the commission of a tortious act in Florida."
It is telling that while the complaint relied upon the Confidentiality
Agreement and the parties' joint negotiations with Clear Channel to establish the
fiduciary duty, in its appellate brief Tall Tower recognizes that the Confidentiality
Agreement is not a source of any fiduciary duty. Instead, it contends that "the duty
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arises from the parties' relationship as joint venturers." After thoroughly reviewing the
evidence presented at the hearing and on which the trial court relied, we conclude that
the evidence does not establish that Stonepeak owed Tall Tower a fiduciary duty
pursuant to a joint venture.
The evidence does not show that any written agreement creating a joint
venture had been executed by the parties. Robert Harper of Tall Tower testified that his
understanding was that the parties were entering into a partnership. Brian Philpot of
Tall Tower testified that he understood the proposed LLC as setting up a joint venture
partnership and that Tall Tower would be contributing money and investing in the new
entity. On cross-examination, Philpot recognized that the LLC agreement that
Stonepeak drafted provided in paragraph 2.7, entitled "No State Law Partnership," that
except for tax purposes, the agreement would not be construed to create a joint venture
or partnership. Philpot also admitted that a draft Master Services Agreement provided
that it shall not be construed as creating any joint venture or partnership.
The evidence shows that Stonepeak drafted an LLC agreement and a
Master Services Agreement, but the parties never executed either of them. Although
the witnesses from Tall Tower believed they were acting as partners or joint venturers
with Stonepeak and would enter into such a written agreement in the future, the facts
the trial court relied upon are insufficient to show that any implied contract existed that
would meet the five Kislak elements. See Kislak, 95 So. 2d at 515. Indeed, the
evidence did not address several of the Kislak factors. Without evidence establishing
that a joint venture was actually entered into, Stonepeak had no fiduciary duty to Tall
Tower and thus could not breach a fiduciary duty in Florida.
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Even if the evidence presented at the hearing could be considered
sufficient to show that Stonepeak had a fiduciary duty to Tall Tower, the evidence does
not show that Stonepeak breached any fiduciary duty in Florida. The trial court found
that Stonepeak was subject to "personal jurisdiction based on Tall Towers' claim that
Stonepeak committed a tortious act in Florida through its investment in, and actions on
behalf of, Vertical Bridge, as well as its alleged disclosure of confidential information to
Vertical Bridge."
With respect to the disclosure of confidential information to Vertical Bridge
in violation of the Confidentiality Agreement, the testimony from Tall Tower witnesses
provided some circumstantial evidence that Vichie disclosed information about the Clear
Channel deal to Marc Ganzi of Vertical Bridge. But there was no evidence regarding
where this disclosure occurred. This court has recognized "the general rule that the
existence of an injury within Florida, standing alone, is insufficient to support jurisdiction
over an out-of-state tortfeasor." Kountze v. Kountze, 996 So. 2d 246, 252 (Fla. 2d DCA
2008) (en banc); see also Homeway Furniture Co. of Mount Airy, Inc. v. Horne, 822 So.
2d 533, 538-39 (Fla. 2d DCA 2002). In the present case, the trial court relied upon
Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002), for the proposition that a
defendant need not be present in Florida for the purpose of committing a tortious act in
Florida under the long-arm statute. A nonresident defendant can commit a tortious act
in Florida under the long-arm statute by making written, telephonic, or electronic
communications into Florida, if the cause of action alleged arises from those
communications. Id.-8-
This court has explained that the Wendt rule is applied when the tort
"involves some sort of communication directed into Florida for purpose of fraud, slander,
or other intentional tort." Wiggins v. Tigrent, Inc., 147 So. 3d 76, 86 (Fla. 2d DCA 2014);
see also PK Comput., Inc. v. Indep. Travel Agencies of Am., Inc., 656 So. 2d 254, 255
(Fla. 4th DCA 1995) (stating that the complaint contained insufficient allegations of
tortious interference committed in Florida when the complaint alleged that the defendant
made oral statements or misstatements but did not allege that the statements were
made in Florida or were directed at listeners in Florida). In Wiggins, the plaintiff
asserted a cause of action for conversion, claiming injury in Florida when Wiggins
withheld and utilized money that should have been transferred into the plaintiff's Florida
bank accounts. 147 So. 3d at 78-79. But the alleged tort of conversion did not occur in
Florida and there was no connexity with Florida when the defendant gained dominion
and control of the funds in Washington State. Id. at 87.
Because there was no allegation or evidence at the hearing that Vichie's
alleged disclosure of information occurred in Florida or was directed at a person in
Florida, the alleged disclosure of information to Vertical Bridge does not support the
finding that Stonepeak committed a tortious act in Florida. See Wendt, 822 So. 2d at
1260; Wiggins, 147 So. 3d at 86. Similarly, the circumstantial evidence adduced at the
hearing does not show that Stonepeak did anything in Florida regarding its alleged
"participation in Vertical Bridge's successful attempt to acquire the Clear Channel
assets." With respect to Stonepeak becoming a minority investor in Vertical Bridge,
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nothing indicates that it was a tort for Stonepeak, an investment firm, to purchase a
seventeen percent share of Vertical Bridge.1
Therefore, the trial court erred in determining that the evidence presented
at the hearing establishes that Stonepeak committed a tortious act in Florida under
section 48.193(1)(a)(2).
Section 48.193(1)(a)(1)—Engaging in a Business Venture in Florida
Stonepeak contends that the trial court erred in determining that
Stonepeak is subject to personal jurisdiction in Florida based on section 48.193(1)(a)(1).
Tall Tower alleged in its complaint that Stonepeak was engaged in a business venture
in Florida. Section 48.193(1)(a)(1) provides for personal jurisdiction for a cause of
action "arising from" the acts of a nonresident in "[o]perating, conducting, engaging in,
or carrying on a business or business venture in this state or having an office or agency
in this state." In its findings the trial court stated, "The Court finds that there is
competent substantial evidence that Stonepeak engaged in a business venture in
Florida. Stonepeak purposefully availed itself of the privilege of conducting activities in
Florida, and thus, accordingly invoked the benefits and protections of its laws."
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." RMS Titanic, Inc. v. Kingsmen Creatives, Ltd., 579 Fed. App'x 779, 783 (11th
Cir. 2014) (quoting Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d
1162, 1167 (11th Cir. 2005)). Factors to consider in making this determination "include:
1
The evidence also does not show that Stonepeak was prohibited by any
agreement from investing in another company such as Vertical Bridge.
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(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. at
784 (quoting Horizon Aggressive Growth, 421 F.3d at 1167).
Tall Tower points to the large amount of email exchanges and telephone
calls over the negotiation period between Tall Tower and Stonepeak. Harper testified
that he exchanged numerous emails with Stonepeak regarding the Clear Channel
transaction, and Taylor testified that there had been regular telephone discussions.
Electronic communications from out-of-state offices into Florida do not establish
conducting business in Florida. See Horizon Aggressive Growth, 421 F.3d at 1167;
Bernardele v. Bonorino, 608 F. Supp. 2d 1313, 1322 (S.D. Fla. 2009); see also Jasper
v. Zara, 595 So. 2d 1075, 1075 (Fla. 2d DCA 1992) (involving communications by mail
and telephone).
But we note that in Canale, 20 So. 3d at 468-69, this court distinguished
the Florida Supreme Court's decision in Wendt that electronic communications into
Florida could constitute a tort. In doing so, this court recognized that to meet the
connexity requirement, the alleged tort must arise from the communications on which
the plaintiff seeks to establish long-arm jurisdiction. Id. at 469. This court then stated,
"Certainly, telephone calls made to Florida may be relevant to whether an out-of-state
resident is doing business in this state. But in order to come to this conclusion, the
nature of the calls must be examined." Id. Here, the trial court found only that the
communications concerned the Clear Channel transaction, a transaction that was never
consummated. There was no evidence that Stonepeak derived pecuniary gain as a
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result of the communications, and it did not purchase the Clear Channel assets or even
enter into an agreement to purchase them.
The trial court also relied on the fact that Stonepeak made an equity
investment in Vertical Bridge for a seventeen percent interest in the Florida company
and that Vichie sat on the board of directors of Vertical Bridge. The fact that a New
York investment firm owns a minority equity interest in a Florida company as part of its
portfolio does not equate with Stonepeak doing business in Florida. See Res.
Healthcare of Am., Inc. v. McKinney, 940 So. 2d 1139, 1143 (Fla. 2d DCA 2006)
("Ownership of a resident subsidiary corporation by an out-of-state parent corporation,
without more, has been repeatedly deemed insufficient to meet the requirements of
section 48.193."); Greystone Tribeca Acquisition L.L.C. v. Ronstrom, 863 So. 2d 473,
476 (Fla. 2d DCA 2004). And the activities of Vertical Bridge and its board of directors
cannot be attributed to Stonepeak when Tall Tower has made no effort to pierce the
corporate veil or establish jurisdiction under an alter ego theory. See Bellairs v.
Mohrmann, 716 So. 2d 320, 323 (Fla. 2d DCA 1998); WH Smith, PLC v. Benages &
Assocs., 51 So. 3d 577, 581 (Fla. 3d DCA 2010). To demonstrate jurisdiction under an
alter ego theory, the plaintiff must make sufficient jurisdictional allegations to pierce the
corporate veil. WH Smith, 51 So. 3d at 581. To pierce the corporate veil the plaintiff
must establish "both that the corporation is a 'mere instrumentality' or alter ego of the
defendant[] and that the defendant engaged in 'improper conduct' in the formation or
use of the corporation." Bellairs, 716 So. 2d at 323 (quoting Dania Jai-Alai Palace, Inc.
v. Sykes, 450 So. 2d 1114, 1120-21 (Fla. 1984)). Tall Tower made no allegation that
Vertical Bridge was a mere instrumentality of its minority investor, Stonepeak.
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Tall Tower is correct that a single transaction for profit can constitute
engaging in a business venture. See Labbee v. Harrington, 913 So. 2d 679, 683 (Fla.
3d DCA 2005). Labbee dealt with another long-arm statute, section 48.181, Florida
Statutes (2003), that also applies to "nonresidents who engage in or carry on a business
or business venture in the state." Labbee, 913 So. 2d at 682. The Third District
determined that the allegation that the defendant had rented out real property in Florida
for twenty years and then sold it was sufficient to describe a business venture. Id. at
683; see also Wm. E. Strasser Constr. Corp. v. Linn, 97 So. 2d 458, 460 (Fla. 1957)
(determining that by the purchase of real property in Florida and the execution of a
contract to construct an apartment building that would be rented to tenants for income
for the benefit of the defendants, the defendants "were initiating the first sub[s]tantial
steps toward setting themselves up in a business venture in this state"); State ex rel.
Weber v. Register, 67 So. 2d 619, 620 (Fla. 1953) (determining that the purchase of a
citrus grove in Florida and subsequent listing of grove for sale constituted a business
venture). The intent of the long-arm statute is "to regard nonresidents who have availed
themselves of the privilege of 'dealing in goods, services, or property, whether in a
professional or nonprofessional capacity, within the State in anticipation of economic
gain,' as operating a business or business venture." Labbee, 913 So. 2d at 683(quoting DeVaney v. Rumsch, 228 So. 2d 904, 907 (Fla. 1969)).
Here, in addition to telephone calls and emails, the trial court found that
over the course of approximately ten months Stonepeak had the following contacts in
Florida: (1) three Stonepeak employees attended an introductory meeting and dinner in
Florida with Tall Tower in January 2014; (2) an accountant acting as an agent for
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Stonepeak visited Tall Tower sometime not long after the January meeting and in
October 2014 to audit Tall Tower's financial records in relation to the potential Clear
Channel transaction; and (3) a Stonepeak employee visited a Miami site of a Tall Tower
broadcast tower in April 2014 to continue negotiations regarding the Clear Channel
transaction.
Stonepeak never consummated a transaction to purchase the Clear
Channel assets or even entered into a contract for purchase. Stonepeak did not enter
into any LLC or management agreement with Tall Tower. Stonepeak did not deal in any
property in Florida but investigated the possibility of entering into such a transaction.
Stonepeak owned no real property in Florida. The trial court seemed to rely on the fact
that a small percentage of the broadcast towers were located in Florida, but Clear
Channel owned these towers, not Stonepeak.
The Confidentiality Agreement that Stonepeak signed in New York did not
obligate it to do anything in Florida. And Tall Tower originally solicited Stonepeak in
New York regarding the Clear Channel transaction that was for the purchase of 472
broadcast towers across the nation, although only 36 of the towers were located in
Florida. Stonepeak has no office in Florida and no license to do business in Florida.
Tall Tower failed to show that Stonepeak has any clients in Florida or that any
percentage of its revenue is from Florida clients.
In applying the facts that the trial court found to the law, we conclude that
the trial court erred in finding that section 48.193(1)(a)(1) was satisfied based on
"competent substantial evidence that Stonepeak engaged in a business venture in
Florida." The trial court did not find and the evidence does not support that Stonepeak
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dealt in any goods, services, or property in Florida or that Stonepeak's activities in
Florida showed a general course of business activity for pecuniary gain.
We also note that the trial court found in a conclusory sentence that there
was "a sufficient connection between Stonepeak's Florida activities and the causes of
action alleged by Tall Tower to satisfy the connexity requirement." But the order does
not explain how Stonepeak's conduct, including the meetings or communications with
Tall Tower, could be the basis for the claim that Stonepeak disclosed confidential
information to a third party and assisted that party in purchasing the Clear Channel
assets. See Canale, 20 So. 3d at 466 (stating that for specific jurisdiction there must be
"a causal connection between the defendant's activities in Florida and the plaintiff's
cause of action" (quoting Wendt, 822 So. 2d at 1260)).
Therefore, the trial court erred in determining that the evidence
established that Stonepeak engaged in a business venture in Florida under section
48.193(1)(a)(1).
Conclusion
Because Tall Tower did not establish either ground under section
48.193(1)(a)(1) or (1)(a)(2) asserted for personal jurisdiction, we reverse the order
denying the motion to dismiss for lack of personal jurisdiction and remand for the trial
court to dismiss the case. Based on our conclusion that Tall Tower did not establish a
basis for personal jurisdiction under section 48.193, we do not reach the issue of
sufficient minimum contacts with Florida. See Rautenberg, 193 So. 3d at 930; Casita,
L.P. v. Maplewood Equity Partners L.P., 960 So. 2d 854, 858 (Fla. 3d DCA 2007).
Reversed and remanded for dismissal.
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MORRIS and BLACK, JJ., Concur.
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