NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FOUNTAINBLEAU, LLC, a South Carolina )
limited liability company and NOAM )
PYADE, individually, )
)
Petitioners, )
)
v. ) Case No. 2D18-4068
)
HIRE US, INC., a Florida limited liability )
company and AERO DIVERSIFIED )
SERVICES, INC., a Florida profit )
corporation, )
)
Respondents. )
)
Opinion filed June 7, 2019.
Petition for Writ of Certiorari to the Circuit
Court for Hillsborough County; Robert A.
Foster, Jr., Judge.
Nicholas A. Brown, Jaret Fuente, and
Jeffrey A. Cohen of Carlton Fields Jorden
Burt, P.A., Tampa, for Petitioners.
Tyler S. Wolas of Wolas Law Group, PLLC,
Largo, for Respondents.
BLACK, Judge.
Fountainbleau, LLC, and Noam Pyade, defendants in a lawsuit filed by
Hire Us, Inc., and Aero Diversified Services, Inc., seek certiorari review of an order
declining to rule on pending motions, including a motion to dismiss for lack of
jurisdiction, and instead sua sponte ordering the parties to arbitrate the motion to
dismiss as well as the merits of the lawsuit. Fountainbleau and Mr. Pyade contend that
the trial court departed from the essential requirements of law by exercising jurisdiction
over the parties—ordering them to arbitration—without first determining whether it had
personal jurisdiction over Fountainbleau, a South Carolina corporation, and Mr. Pyade,
a South Carolina resident. We grant the petition for writ of certiorari and quash the
order on review.
As relevant to the resolution of the petition before us, Hire Us and Aero
Diversified (together, Hire Us) filed a second-amended complaint against Fountainbleau
and Mr. Pyade (together, Fountainbleau) for breach of oral contract, fraudulent
inducement, and unjust enrichment. Contemporaneously, Hire Us served
interrogatories and a request for production on Fountainbleau. Fountainbleau
immediately filed a motion to dismiss pursuant to Florida Rules of Civil Procedure 1.061
and 1.140, arguing forum non conveniens and lack of personal jurisdiction as required
pursuant to Florida's long-arm statute, section 48.193, Florida Statutes (2018).
Affidavits from Mr. Pyade individually and as the owner and registered agent of
Fountainbleau were attached. Fountainbleau also filed a motion to stay merits
discovery until the pending jurisdictional challenge was resolved. Fountainbleau's
motion to dismiss was set for hearing, and Hire Us filed a motion to continue the hearing
until the discovery-related motion to stay was heard. Ultimately, the motion to dismiss
and motion to continue were heard together.
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At the hearing, after listening to argument from the parties, the court
stated, "I'm taking both motions under advisement and I'm setting [the case] for
arbitration." In response to Fountainbleau's objection to the court's decision, the court
stated: "I'm going to take everything under advisement and I'm going to send you to
arbitration. . . . Both clients need to show up." The court then confirmed that the
arbitration was to address the merits of the case, the jurisdictional issues, and attorneys'
fees. On further objection by Fountainbleau, the court reiterated that the arbitrator
would decide the jurisdictional challenge as well as the merits of the lawsuit. The
September 14, 2018, order rendered by the court comports with the ruling orally
pronounced, referring "the entire action to arbitration, including [the] pending motion to
dismiss asserting a lack of personal jurisdiction," directing "that the parties themselves"
appear in person "at all future hearings," and "otherwise tak[ing] under advisement" the
pending motion to dismiss.
Fountainbleau timely filed this petition seeking certiorari review of the
order or otherwise requesting appropriate relief. As an initial matter, we conclude that a
petition for writ of certiorari is the appropriate mechanism for review. Although the trial
court's order requires the parties to attend arbitration, it is not an order determining the
"entitlement" of a party to arbitration such that it would be a nonfinal appealable order
pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). See Ebbit v.
Terminix Int'l Co. Ltd. P'ship,
792 So. 2d 1275, 1276 (Fla. 4th DCA 2001); cf. Avatar
Props., Inc. v. Greetham,
27 So. 3d 764, 765 n.1 (Fla. 2d DCA 2010) (distinguishing
Ebbit where the order on appeal determined a contractual right, i.e., entitlement to
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arbitration).1 Similarly, the order is not an appealable nonfinal order determining the
court's jurisdiction over Fountainbleau because the order specifically refers the issue of
jurisdiction to the arbitrator and otherwise takes the issue "under advisement." See Fla.
R. App. P. 9.130(a)(3)(C)(i); Frier v. Frier,
13 So. 3d 145, 146 (Fla. 1st DCA 2009) ("To
fall within the scope of [rule 9.130(a)(3)(C)(i)], . . . an order must actually make a
determination as to personal jurisdiction."); cf. Blogwire Hungary Szellemi Alkotást
Hasznosító v. Bollea, 162 So. 3d 1116, 1117 n.2 (Fla. 2d DCA 2015) ("Although the
circuit court apparently intended once again to defer a ruling on the jurisdictional aspect
of [the] motion to dismiss, the order denying the motion to dismiss does not incorporate
such a reservation. . . . Accordingly, we have jurisdiction to hear this matter under [rule]
9.130(a)(3)(C)(i)."); Sprint Corp. v. Telimagine, Inc., 923 So. 2d 525, 527-28 (Fla. 2d
DCA 2005) ("By exercising jurisdiction over Sprint Corp. when issuing the temporary
injunction, the trial court implicitly denied Spring Corp.'s motion to dismiss.").
"Before a court may grant certiorari relief . . . the petitioner must establish
the following three elements: '(1) a departure from the essential requirements of the law,
(2) resulting in material injury for the remainder of the case (3) that cannot be corrected
on postjudgment appeal.' " Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011) (quoting
Reeves v. Fleetwood Homes of Fla., Inc.,
889 So. 2d 812, 822 (Fla. 2004)). The latter
1Although Fountainbleau and Hire Us agree that the court ordered the
parties to nonbinding arbitration pursuant to section 44.103, Florida Statutes (2018), the
court did not reference the statute or use the phrase "nonbinding arbitration" at any
point during the hearing or in the order on review. See § 44.103(2) ("A court, pursuant
to rules adopted by the Supreme Court, may refer any contested civil action filed in a
circuit or county court to nonbinding arbitration."). Nonetheless, that does appear to be
the only possible basis upon which the court could have entered the order as there is no
written agreement and the claims raised by Hire Us are not statutorily required to be
arbitrated.
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two elements are jurisdictional, id., and certiorari jurisdiction is established "where an
'order implicates a violation of the parties' constitutional rights which cannot be
remedied on plenary review,' " Gundel v. AV Homes, Inc.,
264 So. 3d 304, 310 (Fla. 2d
DCA 2019) (quoting Rodriguez ex rel. Posso-Rodriguez v. Feinstein,
734 So. 2d 1162,
1163 (Fla. 3d DCA 1999)). That there exists a mechanism for correcting the error via
postjudgment appeal is not determinative of this court's jurisdiction; "rather, the remedy
must alleviate the harm that results from the error."
Id. at 311 (quoting Gawker Media,
LLC v. Bollea,
170 So. 3d 125, 132 (Fla. 2d DCA 2015)).
Here, the trial court has been asked to determine whether the complaint
against a South Carolina corporation and a South Carolina resident alleges sufficient
facts to comply with the due process and other constitutional considerations set forth in
Venetian Salami Co. v. Parthenais,
554 So. 2d 499, 502 (Fla. 1989). The material injury
which cannot be corrected on plenary review is the trial court's exercise of jurisdiction
over Fountainbleau by requiring Fountainbleau to appear and participate in arbitration
where the court has not yet determined its jurisdiction over Fountainbleau. If orders
deferring consideration of motions to dismiss based on a lack of personal jurisdiction in
favor of ordering the entire action to arbitration—including jurisdictional
determinations—are not subject to certiorari review, due process rights and rights
afforded by section 48.193 are illusory and the policy inherent in subjecting
nonresidents to Florida courts' jurisdiction becomes meaningless. See Gundel,
264 So.
3d at 311 (quoting Keck v. Eminisor,
104 So. 3d 359, 365-66 (Fla. 2012)); cf. Kauffman
v. King,
89 So. 2d 24, 26 (Fla. 1956) (granting the petition for writ of certiorari and
finding "that it is palpably unjust to require [petitioner] to incur the expense and be
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subjected to the inconvenience of defending this suit in Da[d]e County and, in the event
of an adverse verdict . . . to have to spend additional time and money to defend it again
in Palm Beach County" such that petitioner's "remedy by appeal is . . . inadequate").
Having determined that we have certiorari jurisdiction, we next consider
whether the trial court departed from the essential requirements of law when it ordered
the parties to arbitrate the case without first determining whether personal jurisdiction
over Fountainbleau has been established.
"Personal jurisdiction refers to whether the actions of an individual or
business entity as set forth in the applicable statutes permit the court to exercise
jurisdiction in a lawsuit brought against the individual or business entity in this state."
Borden v. E.-European Ins. Co.,
921 So. 2d 587, 591 (Fla. 2006). And personal
jurisdiction is "necessary before a defendant, either an individual or business entity, may
be compelled to answer a claim brought in a court of law."
Id. Section 48.193, Florida's
long-arm jurisdiction statute, "defines the parameters by which a trial court may exercise
personal jurisdiction over a party who is not a Florida resident." Youssef v. Zaitouni,
241 So. 3d 901, 903 (Fla. 2d DCA 2018). A court's exercise of long-arm jurisdiction
outside of the limited circumstances set forth in section 48.193 is a departure from the
essential requirements of law. See
Kauffman, 89 So. 2d at 26 ("The trial judge departed
from the essential requirements of the law in denying to the resident defendants a
privilege granted to them by statute[.]"); Citizens Prop. Ins. Corp. v. Trapeo, 136 So. 3d
670, 676 (Fla. 2d DCA 2014) (" 'It is only in exceptional cases, such as those where the
lower court acts without or in excess of jurisdiction, or where the interlocutory order
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does not conform to the essential requirements of law' that certiorari relief is
appropriate." (quoting Kauffman, 89 So. 2d at 26)).
Courts of this state "simply cannot subvert the statutory requirements or
the due process interests that they implicate."
Youssef, 241 So. 3d at 903. Those due
process interests limit "the State's adjudication authority[,] principally protect[ing] the
liberty of the nonresident defendant—not the convenience of plaintiffs or third parties."
Estes v. Rodin,
259 So. 3d 183, 192 (Fla. 3d DCA 2018) (quoting Walden v. Fiore,
571
U.S. 277, 284 (2014)); see also World-Wide Volkswagen Corp. v. Woodson,
444 U.S.
286, 291 (1980) ("Due process requires that the defendant . . . be subject to the
personal jurisdiction of the court." (citing Int'l Shoe Co. v. Washington, 326 U.S. 310,
316 (1945))); Logitech Cargo, U.S.A., Corp. v. JW Perry, Inc.,
817 So. 2d 1033, 1035
(Fla. 3d DCA 2002) ("The whole point of our jurisdiction and venue laws is not to hale
defendants into foreign jurisdictions where they are not seeking affirmative relief."). In
that respect, it seems evident that in order to apply and enforce a statute of this state
the court must first determine that it has jurisdiction, both subject matter and personal.2
See Humphrey v. Deutsche Bank Nat'l Tr. Co., 113 So. 3d 1019, 1019 (Fla. 2d DCA
2013) ("[T]he court never secured personal jurisdiction over Humphrey and, thus, had
no power over him. That being so, the court had no authority to direct Humphrey to do
anything."); cf. Johns v. Taramita, 132 F. Supp. 2d 1021, 1027 (S.D. Fla. 2001) ("[T]he
2The fact that orders determining personal jurisdiction are reviewable
under rule 9.130 as nonfinal appealable orders also supports that determinations of
personal jurisdiction must be made prior to any other action or order of the court. See
Fla. R. App. P. 9.130(a)(3)(C)(i).
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court lacks the power to enforce the agreement because it does not have personal
jurisdiction over the respondent.").
"The determination of jurisdictional disputes . . . must be made by a court
of law." Curtis v. Olson, 837 So. 2d 1155, 1157 (Fla. 1st DCA 2003). "Without
jurisdiction, the court cannot proceed at all in any cause. Jurisdiction is [the] power to
declare the law, and when it ceases to exist, the only function remaining to the court is
that of announcing the fact and dismissing the cause." Trerice v. Trerice,
250 So. 3d
695, 697 (Fla. 4th DCA 2018) (quoting Griffith v. Fla. Parole & Prob. Comm'n,
485 So.
2d 818, 821 (Fla. 1986)); see also Springbrook Commons, Ltd. v. Brown,
761 So. 2d
1192, 1194 (Fla. 4th DCA 2000) ("If the court is to exercise its power over a person it
must have jurisdiction over that individual."); cf. § 682.181(1), Fla. Stat. (2018) ("A court
of this state having jurisdiction over the controversy and the parties may enforce an
agreement to arbitrate." (emphasis added)); Kintzele v. J.B. & Sons, Inc., 658 So. 2d
130, 132 (Fla. 1st DCA 1995) ("On questions of arbitrators' 'in personam' jurisdiction,
the parties are entitled to judicial interpretation of the pertinent contractual language."
(emphasis added)). Thus, before the court could invoke the nonbinding arbitration
statute, section 44.103, Florida Statutes (2018), and refer the action to arbitration, it was
required to determine that it had personal jurisdiction over Fountainbleau. See Camp
Illahee Inv'rs, Inc. v. Blackman, 870 So. 2d 80, 84 (Fla. 2d DCA 2003) ("[B]efore
reaching the issue of forum non conveniens under Florida Rule of Civil Procedure
1.061, the trial court was required to first determine whether it
had in personam jurisdiction in accordance with the two-prong test." (emphasis added));
La Reunion Francaise, S.A. v. La Costena, 818 So. 2d 657, 659 (Fla. 3d DCA 2002)
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(concluding that there was no personal jurisdiction over the foreign defendant and
therefore no need to reach other issues raised in the motion to dismiss, including the
issue of forum non conveniens); cf. CT Miami, LLC v. Samsung Elecs. Latinoamerica
Miami, Inc.,
201 So. 3d 85, 92 (Fla. 3d DCA 2015) ("Arbitrators have no inherent
authority over a dispute or the parties to that dispute . . . .").
Here, the court's failure to determine its jurisdiction in the first instance is a
departure from the requirements of law and is an act in excess of its jurisdiction.
Without ruling on the contested jurisdictional issue, the court entered an order which
required the exercise of jurisdiction. Accordingly, the petition for writ of certiorari is
granted, and the September 14, 2018, order referring the lawsuit to arbitration is
quashed.
Petition granted; order quashed.
LaROSE, C.J., and ROTHSTEIN-YOUAKIM, J., Concur.
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