Guarino v. Mandel

327 So.3d 853

Karla GUARINO, Appellant,

v.Edward MANDEL, an individual, Vibe Micro, Inc., a Nevada corporation, and 8 Speed 8, Inc., a Nevada corporation, Appellees.

Snell and Wilmer, LLP, a foreign limited liability partnership, Appellant,

v.Edward Mandel, an individual, Vibe Micro, Inc., a Nevada corporation, and 8 Speed 8, Inc., a Nevada corporation, Appellees.

No. 4D20-1708

No. 4D20-1716

District Court of Appeal of Florida, Fourth District.

[September 15, 2021]

Todd M. Kurland of Law Office of Todd M. Kurland, P.A., Palm Beach Gardens, for appellant Karla Guarino.

David R. Atkinson, George S. Lemieux and Lauren V. Purdy of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellant Snell and Wilmer, LLP.

Stephanie Hopple of Hopple Law Firm, LLLP, Miami, for appellees.

Forst, J.

Appellants Karla Guarino and law firm Snell and Wilmer, LLP have filed separate appeals from non-final orders partially denying their respective motions to dismiss appellees’ amended complaint for lack of personal jurisdiction. The motions to dismiss were directed to an amended complaint filed by appellees Edward Mandel and Vibe Micro, Inc., individually and as shareholders of 8 Speed 8, Inc. ("8 Speed 8"). The amended complaint asserted that appellants and others committed various torts within this state, thereby subjecting them to jurisdiction pursuant to Florida's long-arm statute, section 48.193, Florida Statutes (2018). We sua sponte consolidate these two appeals for disposition.

With respect to Guarino's appeal, we reverse and remand for dismissal of the amended complaint because neither the amended complaint's allegations nor the record's jurisdictional evidence connects Guarino's alleged tortious conduct with Florida to bring her within the ambit of the long arm statute. As to the law firm's appeal, we reverse and remand for an evidentiary hearing concerning certain jurisdictional evidence, and for a "minimum contacts" analysis should the trial court find jurisdiction under the long-arm statute.

Background

Appellees’ eight-count amended complaint was directed to ten defendants and asserted various business torts, as well as abuse of process and invasion of privacy claims. Specifically, the amended complaint alleged the following causes of action: breach of fiduciary duty in furtherance of civil conspiracy (counts I and II); misappropriation of trade secrets in furtherance of civil conspiracy (count III); conversion/usurpation of corporate opportunities in furtherance of civil conspiracy (count IV); abuse of process in furtherance of civil conspiracy (count V); aiding and abetting breach of fiduciary duty in furtherance of civil conspiracy (count VI); aiding and abetting breach of fiduciary duty (count VII); and invasion of privacy (count VIII). Counts I, II, III, IV, V, and VIII were brought against all defendants, including the two appellants. Count VI was brought solely against the law firm, and the remaining count (count VII) did not include either appellant.

The amended complaint generally alleged that in November 2012, appellee Mandel, defendant Igor Shabanets, and a non-party—acting through their respective corporations—entered into an agreement to run a kiosk business together, 8 Speed 8.¹ Mandel, Shabanets, and the non-party each had an ownership interest in the company, with appellant Karla Guarino, a Colorado resident, serving as the company's CEO.

The amended complaint further alleged that, in October 2013, Shabanets, the non-party, and Guarino "conspired and agreed to use illegal means to force Mandel out of 8 Speed 8." In furtherance of the conspiracy, the purported conspirators later created Rain Kiosk, an entity "identical to 8 Speed 8 ... but for Mandel's ownership interest," to divert 8 Speed 8's assets and corporate opportunities. Investors interested in 8 Speed 8 were told that Rain Kiosk was the same company and were invited to instead invest in Rain Kiosk.

Subsequently, in March 2014, Rain Kiosk entered into an agreement with Payteller, a competing kiosk company, whereby 8 Speed 8's "assets and business opportunities, including those that had [already] been transferred to Rain Kiosk" would be transferred to Payteller and/or Card Platforms, LLC—two Florida companies. This was allegedly done in order to further remove control of 8 Speed 8 from Mandel. Payteller thereafter hired Guarino, with the latter alleged to have continued to transfer 8 Speed 8's business opportunities to the two Florida companies.

Appellant Snell and Wilmer, an Arizona-based law firm with no offices in Florida, allegedly joined the conspiracy, "propos[ing] an alternate course of action which would allow Guarino, Shabanets, and [NPI] to cash out on their interests in 8 Speed 8 ... and prevent Mandel from receiving anything." Upon the law firm's advice, the conspirators entered into a new agreement with Payteller, wherein Rain Kiosk was substituted with ISS Management, Inc. ("ISS"), a separate Nevada limited liability company. The conspirators purportedly used ISS to continue to capitalize on 8 Speed 8's business opportunities under a new name.² The law firm, in turn, advised the other conspirators and "drafted a series of documents which enabled ... Russian investors who had originally intended and agreed to invest in 8 Speed 8 ... to instead invest in ISS, Payteller, and Card Platforms." The amended complaint concludes that this activity's result was that the conspirators received millions of dollars that would otherwise have gone, in part, to appellees.

Beyond the alleged conspiracy to siphon 8 Speed 8's assets and diminish Mandel's influence in the company, appellees further claimed that the law firm engaged in a pattern of conduct designed to harass Mandel. As part of this conduct, appellees asserted that the law firm appeared in several court cases involving Mandel with the intention of rendering him unable to interfere with the alleged conspiracy.

Appellants separately moved to dismiss the amended complaint for lack of personal jurisdiction.

A. Guarino's Motion to Dismiss

Guarino asserted that appellees failed to adequately allege a conspiracy sufficient to bring her actions within the ambit of Florida's long-arm statute, and that, in any event, she lacked the requisite level of minimum contacts with Florida to establish personal jurisdiction. Guarino filed both an affidavit and supplemental affidavit in support, wherein she asserted that: (1) she had never resided in Florida; (2) she had worked for Payteller only after she had ended her employment as 8 Speed 8's CEO; (3) while working for Payteller, she worked from her home in Colorado; and (4) she had "made 5 trips to Florida for Payteller purposes." Guarino also challenged a number of the amended complaint's factual allegations.

Appellees filed a response in opposition to Guarino's motion to dismiss, asserting that the conspiracy and breach of fiduciary duty occurred in Florida because Guarino helped to divert 8 Speed 8's assets and business opportunities to Payteller and Card Platforms, LLC—two Florida companies.³ Moreover, appellees asserted that the injury occurred in Florida because "the only [8 Speed 8] shareholder that suffered injury from the misappropriation" was appellee Vibe Micro, Inc., which had its principal place of business in Florida and which had appellee Mandel, a Florida resident, as its principal. According to appellees, "[s]ince this was intentional misconduct that took place in Florida, the conduct was designed to harm a Florida resident, and the conspirators knew that the brunt of actions would be felt in Florida, the tort occurred in Florida." In support of their response, appellees filed Guarino's answers to personal jurisdiction interrogatories, and the affidavits of both Mandel and the non-party individual that helped create 8 Speed 8. Those filings mainly served to support the amended complaint's allegations and contained minimal relevance to jurisdiction.

B. The Law Firm's Motion to Dismiss

The law firm moved to dismiss all claims brought against it, arguing inter alia , that appellees failed to allege a viable conspiracy, failed to demonstrate a basis for either specific or general personal jurisdiction in Florida, and that the trial court's exercise of personal jurisdiction over the law firm would violate due process. In support, the law firm filed the affidavits of three of its attorneys involved in court proceedings against appellees, all of which stated that the attorneys were California residents and denied any wrongdoing or role in the alleged conspiracy.

Appellees filed a response in opposition. The response asserted that the law firm had not refuted the jurisdictional allegations of the invasion of privacy and aiding and abetting breach of fiduciary duty claims (counts VIII and VI, respectively), and that the torts were committed in Florida and caused injury there.⁴

To counter the law firm's jurisdictional evidence, appellees filed the affidavits of the non-party and Mandel. As to the law firm's alleged connection with Florida, the non-party stated that the law firm ultimately assisted in the diversion of 8 Speed 8's assets to Payteller and Card Platforms, two Florida companies. Moreover, the non-party stated that the law firm hired a private investigator to investigate Mandel's resources knowing that Mandel lived in Florida, and that the reports were provided to Shabanets, who "owned and used" a Florida residence. Mandel's affidavit provided no Florida connection for the law firm and merely stated that he (Mandel) lived in Florida and had suffered damages there because of the release of financial and personal information.

C. The Trial Court's Order on Guarino's Motion to Dismiss

The trial court entered an order on Guarino's motion to dismiss. With respect to all claims in furtherance of a civil conspiracy, the trial court first determined that appellees failed to "successfully allege a cause of action for civil conspiracy amongst the defendants to...