Full Opinion

Third District Court of Appeal State of Florida Opinion filed June 24, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-2373 Lower Tribunal No. 19-6303 ________________ Sayers Construction, LLC, Appellant, vs. Timberline Construction, Inc., et al., Appellees. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge. Cozen O’Connor, and Charles C. Kline, Jason R. Domark and Reid Kline; Griffith Barbee PLLC, and Casey Griffith and Michael Barbee (Dallas, TX), for appellant. Hill Ward Henderson, and J. Logan Murphy, Timothy C. Ford, Jason L. Molder and Andrew E. Holway (Tampa), for appellees. Before SALTER, FERNANDEZ and GORDO, JJ. GORDO, J. Sayers Construction, LLC, appeals the trial court’s denial of its motion to dismiss Timberline Construction, Inc. and High Voltage, Inc.’s second amended petition to confirm arbitration award to the extent that the trial court’s order determined personal jurisdiction over Sayers. Timberline and High Voltage argue that the record establishes that the trial court had personal jurisdiction over Sayers because Sayers’s conduct was within Florida’s long-arm statute and the exercise of jurisdiction satisfies constitutional due process requirements. We agree and affirm the trial court’s order. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND Sayers, a Texas corporation with its principal place of business in San Marcos, Texas, entered into multiple contracts with Florida Power & Light to provide construction services, which involved strengthening, protecting, and otherwise securing the stability of FPL’s utility services throughout South Florida. To perform its duties, Sayers hired Timberline, a South Dakota corporation, as a subcontractor. Timberline informed Sayers that High Voltage, a Utah based corporation, would perform work in connection with the agreement as Timberline’s partner. The relationship between Sayers, and Timberline and High Voltage was governed by the Master Agreement for Contract Services (the “agreement”). 1 1 Sayers stipulated that while High Voltage was not a party to the agreement, High Voltage was aware that its work for Sayers was governed by the terms of the agreement. 2 Over time, Sayers became deficient in payment of invoices that Timberline and High Voltage submitted pursuant to the agreement. As such, Timberline and High Voltage initiated arbitration under the agreement’s disputes clause. 2 This clause stated that the arbitration would be governed by the rules of the American Arbitration Association (the “AAA”) for the Construction Industry. Because the agreement did not otherwise specify an arbitral forum, 3 the locale was governed by Rule 12 of the AAA’s construction rules. Rule 12 states that the parties may agree to an arbitration locale. In the event of a dispute, that rule provides, When the parties’ arbitration agreement is silent with respect to locale and the parties are unable to agree upon a locale, the locale shall be the city nearest to the site of the project in dispute, as determined by the AAA, subject to the power of the arbitrator to finally determine the locale 2 The disputes clause of the agreement stated, in relevant part, as follows: All disputes not settled by negotiation or mediation shall be reserved until the final completion or termination of the Services, after which the parties shall submit them to arbitration in accordance with the prevailing rules of the American Arbitration Association for the Construction Industry, except as modified in this paragraph. All disputes shall be decided by a single arbitrator. No discovery shall be permitted. The arbitrator shall issue a scheduling order within three months of the filing of the demand for arbitration and no modifications shall be made except by the mutual consent of the parties. The decision of the arbitrator shall be issued within nine months of the date of filing of the demand for arbitration, and the arbitrator shall state in writing the factual and legal basis for the award. The Award rendered by arbitrators shall be final and judgment may be entered upon it in accordance with the applicable law in any Court having jurisdiction thereof. 3 The agreement also lacked a forum selection clause. 3 within 14 calendar days after the date of the preliminary hearing. Am. Arbitration Ass’n, Construction Industry Arbitration Rules and Mediation Procedures, Rule 12(a) (2015). The parties agree that the “project in dispute” was located entirely in Florida, and the “city nearest to the site of the project” was also in Florida. Sayers, Timberline, and High Voltage voluntarily agreed to arbitrate their dispute in Coral Gables, Miami-Dade County, Florida, and jointly submitted an agreed scheduling and procedure order to the arbitrator stating as much.4 Following arbitration proceedings in Coral Gables, Florida, the arbitrator entered an award in favor of Timberline and High Voltage, finding that they incurred damages as a direct and proximate result of Sayers’s material breach of the agreement. Timberline and High Voltage filed a complaint, which was subsequently amended, to confirm the award in the circuit court of Miami-Dade County, Florida. The jurisdictional allegations in Timberline and High Voltage’s second amended complaint both tracked the language in Florida Statutes, section 48.193(1) and (2), and included factual allegations. Those allegations were as follows: At all times pertinent hereto, Sayers, an electrical construction and engineering company, operates, conducts, engages in, and carries on its business venture(s) in this state, and holds a Florida Certified Building 4 Although the agreement did not specify an arbitral forum, it contained a choice of law provision, stating that it would be “governed by, subject to, and construed in all respects in accordance with the laws in the State of Texas.” Thus, the parties agreed, and the arbitrator applied Texas law to the parties’ dispute. 4 Contractor’s license required to conduct its business. At all times pertinent hereto, Sayers had offices in this state located in southeast and southwest Florida. Sayers breached a contract in this state by failing to perform acts required by the contract to be performed in this state, including its failure to pay Timberline and [High Voltage] as determined by the Arbitrator as described more fully herein. Sayers engaged in substantial and not isolated business activity in this state by entering into hundreds of contracts involving utility services in southeast and southwest Florida. Sayers intentionally availed itself of the Florida market by entering into contracts involving property in the state, including the one at issue in this case, performing certified building contractor activities in the state, employing personnel in the state, receiving millions of dollars relating to its work in the state, bringing a lawsuit in the state against other parties, participating in arbitration located within the state, and making payments to subcontractors in the state, so as to render the exercise of jurisdiction over Sayers by the Florida courts consistent with traditional notions of fair play and substantial justice. (internal citations omitted). Sayers filed a motion to dismiss the second amended complaint on the grounds that the circuit court lacked both subject matter and personal jurisdiction, as well as for failure to state a cause of action.5 In support of its position, Sayers filed an affidavit of Mark Sayers, its founder and CEO. The affidavit reaffirmed that Sayers is a limited liability company with its principal place of business in Texas, detailed the timeline of its relationship with Timberline and High Voltage, and described the invoicing process that was to take place between Sayers, and 5 Only the determination of personal jurisdiction was appealed to this Court. 5 Timberline and High Voltage. It did not, however, explicitly contest jurisdiction or refute the claims in the second amended complaint regarding Sayers’s alleged contacts in Florida. The circuit court heard argument on the motion to dismiss and reserved ruling.6 The court later denied the motion to dismiss, finding that personal jurisdiction was sufficiently factually alleged in the second amended petition and that by consenting to arbitrate in Florida, Sayers agreed to the jurisdiction of Florida for confirming an award. This appeal followed. LEGAL ANALYSIS A trial court’s ruling on a motion to dismiss for lack of personal jurisdiction is reviewed de novo. Castillo v. Concepto Uno of Miami, Inc., 193 So. 3d 57, 59 (Fla. 3d DCA 2016) (citing Wendt v. Horowitz, 822 So. 2d 1252, 1256 (Fla. 2002)). As this Court recently stated, In Florida, a well-established, two-pronged inquiry is used to determine whether personal jurisdiction is appropriate, which is set forth in Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). “First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of” Florida’s long-arm statute. Id. at 502. “[I]f it does, the next inquiry is whether 6 As the trial court noted in its later-issued order, Sayers did not request an evidentiary hearing on the matter. Pursuant to Florida law, the trial court was not required to hold an evidentiary hearing here where Mr. Sayers’s affidavit did not create a factual dispute because it did not contradict the allegations in the second amended complaint. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 503 (Fla. 1989). 6 sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.” Id. Meyer Werft GMBH & Co., KG v. Humain, No. 3D19-1737, 2020 WL 2176573, at *2 (Fla. 3d DCA May 6, 2020). “Initially, the plaintiff bears the burden of pleading sufficient jurisdictional facts to fall within the long-arm statute.” Fincantieri-Cantieri Navali Italiani S.p.A. v. Yuzwa, 241 So. 3d 938, 941 (Fla. 3d DCA 2018) (citing Venetian Salami, 554 So. 2d at 502). “A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must [then] file affidavits in support of his position.” Venetian Salami, 554 So. 2d at 502; Tobacco Merchs. Ass’n of U.S. v. Broin, 657 So. 2d 939, 941 (Fla. 3d DCA 1995). If the affidavit is legally sufficient, the burden then shifts to “the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.” Venetian Salami, 554 So. 2d at 502. In this case, Timberline and High Voltage made jurisdictional allegations in the second amended complaint that tracked the statutory language and contained specific facts. Woodruff-Sawyer & Co. v. Ghilotti, 255 So. 3d 423, 427 (Fla. 3d DCA 2018) (“To bring the cause within the ambit of the long-arm statute, the complaint may either allege facts sufficient to show that the defendant’s actions fit within one or more of the subsections of the statute, or track the language of the statute.” (citing Fla. R. Civ. P. 1.070(i); Venetian Salami, 554 So. 2d at 502)). 7 Timberline and High Voltage made allegations of both specific and general jurisdiction under Florida Statutes, sections 48.193(1) and (2). As the trial court found in its order, The second amended [complaint] sufficiently alleges facts for personal jurisdiction that Sayers is an electrical construction and engineering company that conducts authorized business in Florida, has offices in Florida, has a Florida Certified Building Contractor’s license to do utility work, and employs personnel in Florida. Further, the material portions of the agreement for utility work were to be completed and performed exclusively in Florida. Sayers filed an affidavit in an effort to contest Timberline and High Voltage’s jurisdictional allegations. That affidavit, however, failed to specifically refute the allegations made by Timberline and High Voltage or contest the trial court’s jurisdiction. Although the allegations in the second amended complaint were conclusory, we must take them as true because the affidavit Sayers filed did not challenge them. See Estes v. Rodin, 259 So. 3d 183, 192 (Fla. 3d DCA 2018) (“Although these allegations are conclusory, we must take them as true, as the . . . affidavits filed below did not challenge that jurisdictional allegation.”). As a result, Sayers failed to meet its burden of contesting the jurisdictional allegations in Timberline and High Voltage’s pleading. Thus, we find that Timberline and High Voltage established that Sayers was in the ambit of Florida’s long-arm statute for purposes of the motion to dismiss. 8 “We now turn to the second prong of Venetian Salami, i.e., whether [Sayers] has sufficient minimum contacts with Florida to satisfy constitutional due process requirements.” Estes, 259 So. 3d at 192. The trial court found in its order that Sayers (1) carries on business in the state, (2) holds a Florida Certified Building Contractor’s license, (3) maintained offices in Florida, (4) entered into “hundreds of contracts involving utility services in Florida,” (5) employs personnel in the State, (6) breached the underlying agreement in Florida, (7) arbitrated the underlying dispute in Florida, and (8) performed work on numerous projects in Florida— including the one ultimately underlying this dispute.7 Based on our review of the record, the trial court properly concluded Sayers had sufficient contacts in Florida for the circuit court in Miami-Dade County, Florida, to exercise personal jurisdiction and confirm the arbitration award. Additionally, Sayers agreed to and actually arbitrated the dispute in Miami- Dade County, Florida. 8 Timberline and High Voltage filed an action to confirm that arbitration award in the circuit court for Miami-Dade County, Florida. The disputes provision in the agreement, executed by Sayers, stated that any arbitration would be subject to the AAA’s rules and that any award “shall be final and judgment may be entered upon it in accordance with the applicable law in any Court having 7 Mr. Sayers’s affidavit filed below failed to contest any of these allegations. 8 In addition to defending against Timberline and High Voltage’s claims, Sayers sought affirmative relief by filing counterclaims in those proceedings. 9 jurisdiction thereof.” Given Sayers’s agreement and consent to arbitrate in Florida, Florida is an appropriate jurisdiction to confirm the arbitration award. Affirmed. 10