author: WARNER, J.

text:
    FORECLOSURE FREESEARCH, INC., a Florida corporation, Appellant, v. Gregory SULLIVAN and Dominic Muttillo, Appellees.
    No. 4D08-2579.
    District Court of Appeal of Florida, Fourth District.
    April 29, 2009.
    Rehearing Denied June 18, 2009.

      L. Martin Reeder, Jr. and Dolly Yoo-rhees Davis of Reeder & Reeder P.A., Jupiter, for appellant.

      Dirán V. Seropian of Cole, Scott & Kis-sane, P.A., West Palm Beach, for appel-lees.
   WARNER, J.

The trial court enjoined a statutorily authorized appraisal process commenced by appellant to complete the reverse purchase of its stock from appellees. We reverse, as all of the elements necessary to support an injunction were not present.

In 1999, Bradford Geisen founded Foreclosure FreeSearch, Inc. (“FFS”), to run a website which provides customers with information regarding real estate foreclosures all over the country. Since its formation, Geisen has been FFS’s majority shareholder and president. Appellees Gregory Sullivan and Dominic Muttillo (“M/S”) became involved with FFS’s operations at the outset. According to the stock certificates dated April 20, 2001, M/S each received 200,000 shares of FFS common stock and each became a 20% shareholder of FFS. FFS identified M/S as shareholders in its 2000 to 2003 tax returns and provided M/S with quarterly distributions and financial reports until December of 2004, at which point Geisen terminated M/S’s involvement with FFS.

In June of 2005, FFS initiated a lawsuit against M/S seeking declaratory relief as to M/S’s status as shareholders, alleging that M/S fraudulently induced FFS into treating them as shareholders when M/S had not paid consideration for shares, and requesting the court to rescind any shareholder agreement. M/S filed a counterclaim against FFS and a third-party claim against Geisen alleging breach of fiduciary duty, seeking unpaid dividends and quarterly financial information pursuant to the 2001 shareholder agreement between FFS and M/S, seeking judicial dissolution of FFS, seeking disclosure of FFS’s corporate records, and making a claim of equitable estoppel against FFS for denying M/S’s position as shareholders (count V of the counterclaim).

On M/S’s motion, the court bifurcated the issue of whether M/S were shareholders of FFS from the remaining counts, as it constituted a threshold issue. Discovery on the remaining issues was stayed pending the determination of shareholder status.

The court scheduled the trial on the shareholder issue • to begin on May 12, 2008. On April 8, 2008, Geisen, as majority shareholder, approved and adopted by written consent a reverse stock split thereby eliminating all shares held by minority shareholders. Geisen testified that the purpose of the reverse stock split was to put an end to the litigation in the fairest way possible for everyone involved. Based upon the filing with the Florida Secretary of State, every 249,000 shares of currently outstanding stock in FFS would be converted to one share of FFS. Fractional shares would be repurchased. Because M/S each owned 200,000 shares, their shares would be repurchased as fractional shares.

The reverse stock split triggered M/S’s statutory appraisal rights under section 607.1302(l)(d), Florida Statutes, which entitles a shareholder whose stock is being repurchased in a reverse split to appraisal rights and to obtain payment of the fair market value of the stock.

Section 607.1322(1), Florida Statutes, provides: “If proposed corporate action requiring appraisal rights under s. 607.1302(1) becomes effective, the corporation must deliver” to all shareholders “a written appraisal notice and form.” Accordingly, FFS mailed M/S written notice on April 8, 2008, which included the details of the reverse stock split, cited the applicable statutes, and described the documents attached, including financial statements and a March 26, 2008, valuation report prepared by Templeton & Company, LLP. The notice warned that failure to assert appraisal rights, by completing and returning the enclosed form within the statutory period, i.e., by May 21, 2008, constituted a waiver of the process. See § 607.1823(3), Fla. Stat. The notice concluded with the following:

Nothing in this letter constitutes a waiver by [FFS] or [Geisen] of any right to assert that you are not a shareholder of [FFS] or, even if you are determined by a court of competent jurisdiction to be a shareholder of [FFS], you are not entitled to appraisal rights under Florida law.

M/S responded to the notice by filing an April 30, 2008, joint motion for temporary injunction in the case pending in circuit court “to prevent [FFS and Geisen] from taking any further action that will harm [M/S]” and “from proceeding with the reverse stock split contemplated in the notice” until the court makes a final determination on issues raised in M/S’s complaint against FFS/Geisen. At a hearing in early May the court prodded the parties to resolve the issue. As a result, the parties stipulated that (1) M/S were each shareholders of 18.6% of FFS’s stock as of December 31, 2000; (2) stock certificates reflecting M/S ownership of 200,000 shares each were issued in April 2001; (3) tax returns from 2000 to 2004 would not be amended; (4) compensation and other distributions paid to Geisen and M/S from 2000 to 2004 were lawful, and none of the parties would make any further claims of compensation or distribution for that period; and (5) the parties requested the court to dismiss FFS’s complaint and count V of M/S’s counterclaim. The court entered the order on the stipulation dismissing these claims with prejudice and directing the parties to proceed with discovery on the remaining issues of M/S’s counterclaim.

Thereafter, M/S served on FFS a demand for production of most of the company’s financial records since 2002. They claimed that the documents were necessary in order to perform a forensic accounting of the corporation in preparation to respond to the appraisal notice. The trial court granted the requests for production.

At the same time M/S filed a May 13, 2008, motion for temporary injunction seeking to enjoin the appraisal process. They claimed that they would suffer irreparable injury were the process to go forward while their counterclaims were still pending. If they lost their shares through the appraisal process, they would also lose their standing to assert a shareholder derivative action if their discovery revealed fraud committed by Geisen. After an evi-dentiary hearing in which M/S’s accountants questioned the valuation report of Templeton & Co., the trial court entered a temporary injunction finding that the April 8, 2008, notice of appraisal rights was “void” because FFS was claiming at the time that M/S were not shareholders of the corporation. The court found that the criteria to grant a temporary injunction were met. From the order granting the temporary injunction, FFS appeals.

“The standard of review of trial court orders on requests for temporary injunctions is a hybrid.” E.I. DuPont De Nemours & Co. v. Bassett, 947 So.2d 1195, 1196 (Fla. 4th DCA 2007). “To the extent the trial court’s order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review.” Id. (quoting Colucci v. Kar Rare Auto. Group, Inc., 918 So.2d 431, 436 (Fla. 4th DCA 2006)). “Although a trial court has broad discretion in granting in-junctive relief, it is an extraordinary remedy that ‘requires a clear legal right, free from reasonable doubt.’ ” Net First Nat’l Bank v. First Telebanc Corp., 834 So.2d 944, 950 (Fla. 4th DCA 2003) (quoting Dania Jai Alai Int’l v. Murua, 375 So.2d 57, 58 (Fla. 4th DCA 1979)).

When reviewing the trial court’s issuance of an injunction, this court must determine whether the movant established: “(1) that it will suffer irreparable harm unless the status quo is maintained; (2) that it has no adequate remedy at law; (3) that it has a substantial likelihood of success on the merits; and (4) that a temporary injunction will serve the public interest.” Broward County v. Meiklejohn, 936 So.2d 742, 746 (Fla. 4th DCA 2006) (quoting Aerospace Welding, Inc. v. Southstream Exhaust & Welding, Inc., 824 So.2d 226, 228 (Fla. 4th DCA 2002)). Based upon this standard, we conclude that the injunction fails.

We begin with the adequacy of the remedy at law, as our ruling on this controls the result. The court considered the notice sent to advise of appraisal rights as invalid because FFS contested M/S’s status as shareholders. We disagree. Because the notice was not “void” and the statutory procedure on appraisal rights protected M/S, an adequate remedy at law existed through the appraisal process.

Pursuant to section 607.1322(1), when a reverse stock split “becomes effective, the corporation must deliver a written appraisal notice and form ... to all shareholders .... ” “Shareholder” includes a “record shareholder” which is “the person in whose name shares are registered in the records of the corporation-” § 607.1301(7), (9), Fla. Stat.

M/S were shareholders within the meaning of the statute when the notice was sent. M/S attached to the joint motion for injunctive relief copies of stock certificates issued by FFS on April 20, 2001, which reflected that each held 200,000 FFS shares, and a copy of FFS’s stock transfer ledger listing both movants as shareholders. They were shareholders of record on April 8, and the statute required the corporation to send them the statutory notice of their appraisal rights. Moreover, the parties stipulated that they were shareholders as of December 31, 2000, and the court incorporated the stipulation in its order of dismissal of FFS’s declaratory judgment action. M/S cannot then turn around and claim that they were not shareholders or that their shareholder status was in doubt. When M/S made this agreement with FFS, they were aware that thirteen days remained in which to respond to the April 8 notice. Accordingly, the notice was not defective and initiated a lawful appraisal process.

The trial court also concluded that M/S had no adequate remedy at law as “[m]on-etary damages are inadequate to compensate [M/S] for the loss of their statutory rights in this instance, which includes their right to participate fully in a lawful, proper appraisal process[] and the other derivative rights that [M/S] would lose as result.” The court noted that having been deprived of FFS’s financial records for the past few years, M/S could not make an informed decision regarding whether to exercise their appraisal rights within the statutory period. Contrary to the court’s position, the appraisal process provides an adequate remedy at law, and the court had additional means to protect any derivative rights.

“Statutory proceedings are regarded as law actions .... ” Adams v. Dade County, 202 So.2d 585, 586 (Fla. 3d DCA 1967). Section 607.1301, et seq., Florida Statutes, provides a variety of remedies for minority shareholders including the right to obtain a judicial determination regarding the fairness of the price and procedure by which the company determined the price.

A company which implements a reverse stock split must provide minority shareholders notice of the appraisal rights. See § 607.1302(l)(d), Fla. Stat. The notice must include “[t]he corporation’s estimate of the fair value of the shares” and enclose a form on which the shareholder can indicate how he or she wants to proceed. § 607.1322(2)(b)3., Fla. Stat. The corporation must direct the shareholder to return the form in forty to sixty days or waive all appraisal rights. § 607.1322(2)(b)2., Fla. Stat. If the shareholder “is dissatisfied with the corporation’s offer,” he or she “must notify the corporation on the form provided ... of that shareholder’s estimate of the fair value of the shares and demand payment of that estimate plus interest.” § 607.1326(1), Fla. Stat. A corporation which disputes the amount proposed by the shareholder “shall commence a proceeding within 60 days after receiving the payment demand ....”§ 607.1330(1), Fla. Stat. If the corporation fails to initiate a judicial proceeding, the “shareholder who has made a demand ... may commence the proceeding in the name of the corporation.” Id.

“The jurisdiction of the court in which the proceeding is commenced ... is plenary and exclusive.” § 607.1330(4), Fla. Stat. The court is authorized to appoint an appraiser who will “receive evidence and recommend a decision on the question of fair value” and “have the powers described” by the court. Id. “The shareholders demanding appraisal rights are entitled to the same discovery rights as parties in other civil proceedings.” Id. The court is charged with determining the fair value of the shares “[ijmmediately before the effec-tuation of the corporate action to which the shareholder objects” based on “customary and current valuation concepts .... ” § 607.1301(4), Fla. Stat.

Pursuant to the foregoing statutes, M/S can obtain a judicial determination of the stock’s value and will not be forced to accept the offer contained in the notice or to accept the valuation report’s findings. M/S’s concerns regarding their lack of access to FFS’s books is meritless as M/S would be “entitled to the same discovery rights as parties in other civil proceedings.” § 607.1330(4), Fla. Stat. It is worth noting that M/S’s counterclaim demands production of the financial records of FFS. Through the appraisal process M/S can receive relevant information regarding the corporation.

M/S complain, however, that because they have been deprived of access to FFS’s financial records, they cannot make a good faith estimate of the value of the company. They fear that the court could tax them with attorney’s fees, should their estimate of value be rejected through the process. Indeed, section 607.1331(1) provides: “[T]he court may assess costs against all or some of the shareholders demanding appraisal, in amounts the court finds equitable, to the extent the court finds such shareholders acted arbitrarily, vexatiously, or not in good faith with respect to the rights provided by this chapter.” An award of attorney’s fees is not mandatory. Furthermore, we think it highly unlikely that a court would find an excessive demand in and of itself, made by a shareholder wrongfully deprived of the corporation’s financial records for several years, a demand made “arbitrarily, vexatiously, or not in good faith.” The fact that attorney’s fees may be available for vexatious litigation during the appraisal process, however, does not render it an inadequate remedy at law.

The appraisal must value the corporation at the date “[ijmmediately before the effectuation of the corporate action to which the shareholder objects.” § 607.1301(4)(a), Fla. Stat. M/S seek to stop the appraisal process because they claim that it would be unfair and would prevent them from raising any potential shareholder derivative claims. They argue that the court was correct in enjoining the appraisal process because it would produce an unfair result.

The remedy, however, is not to stop the appraisal process but to provide additional relief. In most cases, the appraisal statutes “denominate[ ] appraisal as a dissenting shareholder’s exclusive remedy.” Williams v. Stanford, 977 So.2d 722, 727 (Fla. 1st DCA 2008). However, “[a] shareholder entitled to appraisal rights under this chapter may ... challenge a completed corporate action for which appraisal rights are available” where the corporate action “[w]as procured as a result of fraud or material misrepresentation.” § 607.1302(4)(b), Fla. Stat. Applying this exception, the court in Williams expressly held that minority shareholders in M/S’s position “may be entitled to equitable remedies beyond an appraisal proceeding.” 977 So.2d at 730 (emphasis supplied).

In Williams, the Williams brothers held a 30% stake and John Stanford held a 70% stake in a closely-held corporation, Brown and Stanford (“B & S”), which provided construction services. After working as carpenters for B & S for several years, the Williams brothers asked for various financial records upon becoming suspicious that Stanford was diverting company money for personal use. Stanford refused to disclose the requested information and terminated the brothers.

The brothers filed a shareholder-derivative suit on behalf of B & S against Stanford for breaching various duties. While the suit was pending, Stanford decided to form a new company, Stanford & Son, and merged the assets and liabilities of B & S into it. Stanford notified the brothers in writing, under section 607.1322, of their appraisal rights.

Faced with losing their derivative claim, the brothers waived their appraisal rights under the statutory scheme by not responding to the notice in a timely fashion. Unlike M/S, the brothers did not attempt to enjoin the appraisal process.

The brothers amended the complaint, realleging the breach of duty claims arising from Stanford’s diverting company funds for personal use and adding causes of action for breach of various duties against Stanford based on the merger and for rescission of the merger. The trial court granted Stanford’s motion for summary judgment as to all claims relating to the merger, concluding that the brothers had no remedy after having waived the appraisal process.

The Williams court held that summary judgment was inappropriate because the brothers had a viable claim under section 607.1302(4)(b). Where the acts of waste of the corporate assets make the valuation on the appraisal date unfair, “a minority shareholder who alleges specific acts of ‘fraud, misrepresentation, self-dealing, [or] deliberate waste of corporate assets,’ may be entitled to equitable remedies beyond an appraisal proceeding if the alleged acts have so besmirched the propriety of the challenged transaction that no appraisal could fairly compensate the aggrieved minority shareholder.” Williams, 977 So.2d at 730 (quoting Weinberger v. UOP, Inc., 457 A.2d 701, 714 (Del.1983)). Thus, the court reversed the summary judgment and reinstated the brothers’ claims against Stanford for breach of fiduciary duty, misappropriation of corporate assets, and the imposition of a constructive trust against the new company.

In this case M/S’s counterclaim includes one count of breach of fiduciary duty against Geisen for misappropriation of corporate funds and one against the corporation for wrongfully withheld distributions of profits. Under the Williams analysis, those counts may constitute relief beyond the appraisal process available to M/S if they are able to prove that the acts of Geisen “have so besmirched the propriety of the challenged transaction that no appraisal could fairly compensate the aggrieved minority shareholder.” Id. Those actions remain pending. The remaining counts demand the production of corporate records and a judicial dissolution of the corporation. The appraisal process does prevent a judicial dissolution by eliminating their shareholder interest, but it would permit full discovery and production of the corporate records. Because M/S are not deprived of their ability to seek relief beyond the appraisal if they satisfy the Williams analysis, they have an adequate remedy at law.

The majority shareholder has a right to engage the appraisal process to eliminate the rights of dissenting shareholders and put an end to corporate strife. The process must produce a fair result for the minority shareholders. However, the minority shareholders cannot prevent the elimination of their interests and prolong the corporate strife. The availability of additional relief under the Williams analysis provides the necessary protection and fairness to the minority shareholders where the majority has engaged in bad conduct and fraudulently diluted the value of the corporation.

Because we conclude that M/S have an adequate remedy, we reverse the temporary injunction of the appraisal process. The temporary injunction was entered on May 21, 2008. According to the representations at the various hearings, M/S had until May 27, 2008, to give notice of their participation of the appraisal process. We therefore direct that upon remand, M/S have seven days from the date of our mandate to exercise their rights in the appraisal process.

Reversed and remanded for further proceedings.

POLEN and HAZOURI, JJ., concur.

      . As we explained above, the statutory process initiated by the April 8 notice was lawful.

      . Noting that no Florida court had interpreted the governing statutory provisions, the court looked to Delaware case law for guidance. Id. at Ill ("We rely with confidence upon Delaware law to construe Florida corporate law. The Florida courts have relied upon Delaware corporate law to establish their own corporate doctrines.”) (quoting Int'l Ins. Co. v. Johns, 874 F.2d 1447, 1459 n. 22 (11th Cir.1989)).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elwood STALEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-1863.
    District Court of Appeal of Florida, First District.
    April 30, 2009.
    Rehearing Denied June 24, 2009.

      Elwood Staley, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

ORDER ON PETITION SEEKING BELATED APPEAL

Elwood Staley petitions for a belated appeal of a judgment and sentence of the Washington County Circuit Court. He alleges in his sworn petition that he relied on his trial counsel’s assurances that a timely notice of appeal would be filed, only to discover after the time had expired for seeking review that an appeal had not been initiated. We take this opportunity to outline the procedure the court will now follow in instances such as this, where a petition for belated appeal presents a facially sufficient claim for relief grounded on the alleged ineffectiveness of trial counsel.

Until now, when a petition seeking belated appeal was found to materially comply with the procedural requirements of Florida Rule of Appellate Procedure 9.141(c) and substantively stated a preliminary basis for relief, our uniform practice was to issue an order directing the Attorney General to show cause why the petition should not be granted. That procedure has proven to be efficient in circumstances where the claim relates to a matter apparent from the record or where the claim does not involve issues directly related to the proceedings in the lower tribunal or its participants, and we intend to continue to utilize it in cases of that sort.

On the other hand, this process is not particularly efficient or economical in the more common situation in which it is alleged that the fault for failing to timely appeal is attributable to some act or omission on the part of trial counsel. Where those allegations are facially sufficient to demonstrate an entitlement to relief, the state is obligated to show the existence of a good-faith basis for disputing petitioner’s factual allegations before an evidentiary hearing will be ordered. See Schubert v. State, 737 So.2d 1102 (Fla. 1st DCA 1998). Thus, the process we have employed to date required the Attorney General’s staff to contact defense counsel who might be distantly situated and with whom it has little or no prior professional relationship. These obstacles of distance and unfamiliarity, which in most cases would not similarly hinder the local State Attorney, often delayed a determination of whether the state could show a good-faith basis to dispute the claim. Only after such a showing was made by the Attorney General would we relinquish jurisdiction to the lower tribunal to conduct an evidentiary hearing and issue a report and recommendation.

Recognizing that, as applied to cases of this sort, our current procedure may result in unnecessary difficulties and delays in resolving these relatively simple claims, we have elected to revise that procedure to streamline and simplify the disposition of these cases. Henceforth, when we determine that a petition for belated appeal grounded on the alleged actions or inactions of trial counsel is legally sufficient, we will at that point relinquish jurisdiction to the lower tribunal for the purpose of appointing a special master to issue an order to show cause directed to the State Attorney, conduct an evidentia-ry hearing if warranted by the state’s response, and issue an appropriate report and recommendation concerning the petitioner’s entitlement to a belated appeal. We anticipate that this course of action will minimize needless delays by immediately involving in the fact-gathering process the participants in the underlying proceedings, and our expectation is that, absent some extraordinary circumstances, necessary proceedings can be conducted and a report and recommendation issued within 60 days. In most cases, prosecutors and defense counsel in the trial court will enjoy some level of professional familiarity and rapport, which we trust will simplify and speed the process of determining whether a good-faith basis exists to dispute the factual allegations on which the claim for belated appeal is based. If no such dispute exists, the state can promptly make that known, and an appropriate report and recommendation can be forwarded to this court. .

On the other hand, if the need for an evidentiary hearing is shown, the special master will be in the best position to manage the logistics of conducting such a hearing and producing a timely report and recommendation. Because local practices and customs differ in the six judicial circuits under our jurisdiction, our intent is to permit the lower tribunal significant discretion in fashioning the particular means by which the proceedings below are conducted, provided those means recognize and protect the due process interests of the parties.

Accordingly, and in light of our determination that the particular petition in this case states a preliminary basis for relief, jurisdiction is hereby relinquished to the trial court for a period of 60 days. A copy of the petition seeking belated appeal is provided to the trial court as an attachment to our order, and the Chief Circuit Judge is requested to appoint a special master to serve as a commissioner of this court for the purpose of directing the state to show cause why the petition should not be granted, conducting an evidentiary hearing if deemed warranted pursuant to Schubert, and issuing a report and recommendation setting forth findings of fact and conclusions of law regarding petitioner’s entitlement to a belated appeal in Washington County Circuit Court case number 06-000221-CF-MA. The report and recommendation shall be issued no later than 60 days from the date hereof, and copies shall be served on the clerk of this court, the petitioner, the State Attorney, and the Attorney General. Any party adversely affected by the special master’s conclusion may file a response within 10 days following service of the report and recommendation and the other party may reply within 10 days of service of the response. The court will thereafter issue its order determining whether petitioner is entitled to a belated appeal.

HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.

      . On a case-by-case basis, this new procedure also may be found to be the most suitable means for resolving claims grounded on other, less common theories.

      . Examples of the former circumstance include situations where it is alleged that the trial court failed to comply with its obligation under the Florida Rules of Criminal Procedure to inform the defendant of his or her appellate rights. The latter scenario includes, for example, an allegation by an incarcerated defendant entitled to the benefit of the "mailbox rule” that he timely mailed a notice of appeal from his place of confinement, but the notice did not reach the lower tribunal for reasons not attributable to him.

      . Florida Rule of Appellate Procedure 9.141(c)(5)(A) requires that a copy of the petition seeking belated appeal be served on the appropriate State Attorney, thus ensuring that the Office of the State Attorney will be on adequate notice of the claim it is being directed to address.


author: SAWAYA, J.

text:
    Richard T. STANLEY, etc., et al., Petitioners, v. DELTA CONNECTION ACADEMY, INC. f/k/a, etc., et al., Respondents.
    No. 5D09-197.
    District Court of Appeal of Florida, Fifth District.
    May 1, 2009.

      Thomas E. Caldwell of Rue & Ziffra, P.A., Port Orange, for Petitioner.
    F. Bradley Hassell of Hassell, Moorhead & Carroll, Daytona Beach, for Respondent Estate of Scott Alexander Shaw.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Ft. Lauder-dale, for Respondents Central Florida Air Maintenance, Inc. and Express One International, Inc.
    Michael C. Siboni of Siboni, Hamer & Buchanan, P.A., Ocala, for Respondent Delta Connection Academy, Inc. f/k/a Co-mair Aviation Academy, Inc.
   SAWAYA, J.

We consider a Petition for Writ of Cer-tiorari that seeks review of an order rendered in a wrongful death action arising out of a tragic and fatal plane crash that took the lives of all on board the doomed aircraft. That order bifurcates the issues of liability and damages and actually orders that the damage issues be tried first. Although it is not specifically stated in the order, it appears that the separate trials will be conducted before different juries.

The trial judge explained the reason for his ruling when he declared, “I guess I’m prepared to gamble that the decision on the damages is likely to resolve all or at least some of the liability that will shorten the judicial time that I need to spend.” We will not permit the rights and liabilities of the parties to these proceedings to be determined by the luck of the draw or a roll of the dice. In the instant case, that determination should only be made by proper administration of the rules of evidence and trial procedure before a fair and impartial jury impaneled to resolve, in the following order, the issues of whether the defendants breached the applicable standard of care or warranty, whether that breach caused the plaintiffs’ damages, and what those damages are. See § 768.19, Fla. Stat. (2002); Jenkins v. W.L. Roberts, Inc., 851 So.2d 781 (Fla. 1st DCA 2003). In this manner, all parties will receive a fair trial and an appellate court will not be prevented from properly and adequately reviewing any claimed error that affects the judgment ultimately rendered. See Rooss v. Mayberry, 866 So.2d 174, 176 (Fla. 5th DCA 2004) (observing that writ of certiorari granted to prevent improper bifurcation of liability and damage issues and to “[ejffect substantial justice”); Office of Attorney Gen. v. Millennium Commc’ns & Fulfillment, Inc., 800 So.2d 255, 257 (Fla. 3d DCA 2001) (explaining that writ of certiorari should be granted when there would be no practical way to determine on appeal from final judgment how alleged error affected outcome), review denied, 821 So.2d 298 (Fla.2002); Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000) (finding that certiorari relief appropriate when, on appeal from final judgment, it could not be determined how error affected outcome of proceedings); Maris Distrib. Co. v. Anheuser-Busch, Inc., 710 So.2d 1022, 1024 (Fla. 1st DCA 1998) (holding that bifurcation of issues and separate trials “ ‘should not be ordered unless such disposition is clearly necessary, and then only in the furtherance of justice’” (quoting Vander Car v. Pitts, 166 So.2d 837, 839 (Fla. 2d DCA 1964))); Travelers Indem. Co. v. Hill, 388 So.2d 648 (Fla. 5th DCA 1980) (determining that certiorari relief appropriate when no practical way to determine after judgment is rendered how error affected result); see also Woltin v. Richter, 761 So.2d 459 (Fla. 4th DCA 2000).

We conclude that regardless whether the same or different juries are impaneled to resolve the issues in each trial, the order bifurcating the liability and damages issues, with the latter being tried first, departs from the essential requirements of the law and causes irreparable injury that cannot be remedied on appeal. Accordingly, we quash the order under review and remand this case for further proceedings consistent with this opinion.

QUASHED and REMANDED.

GRIFFIN and COHEN, JJ., concur.


author: SUAREZ, J.

text:
    AXA EQUITABLE LIFE INSURANCE COMPANY, Appellant, v. Marco GELPI and Ming Liu, Appellees.
    No. 3D08-2800.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    Epstein Becker & Green and Richard D. Tuschman and Kevin E. Vance, Miami, for appellant.
    Damian & Valori and Melanie E. Damian and Mary Claire Espenkotter and Ken Marina, Miami, for appellees.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   SUAREZ, J.

AXA Equitable Life Insurance Company (“AXA”) appeals a final summary judgment entered in favor of Appel-lees, Marco Gelpi and Ming Liu, in a breach of contract action brought by AXA in Miami-Dade County. We reverse. We find that, pursuant to the unambiguous terms of the Separation Agreements in question, Appellees released AXA from any and all suits arising out of their employment, which includes suits that could have been brought in foreign jurisdictions. Appellees, therefore, breached the Separation Agreements by filing suit in Brazil.

Prior to their employment with AXA, Appellees were employed by MONY Life Insurance Company in Brazil. In 2004, MONY merged with AXA, becoming a wholly owned subsidiary and affiliate of AXA. After the merger, Appellees moved to Miami and continued working for MONY, as an affiliate of AXA. AXA closed the MONY Miami office and terminated the Appellees. AXA, including its affiliate MONY, entered into identical Confidential Separation Agreements and General Releases with each of the Appellees. Pursuant to the terms of the Agreements, AXA agreed to pay each Appellee eighty thousand dollars in severance pay and twenty thousand dollars in attorney’s fees in exchange for a general release concerning Appellees’ rights of action against AXA following termination. Under the Separation Agreements, AXA (which was the party being released) was defined to include “its current and former parents, subsidiaries and affiliates, including MONY Life Insurance Company and its subsidiaries and affiliates.”

After entering into the Separation Agreements, the Appellees, who were Brazilian citizens, moved back to Brazil and filed a lawsuit in Brazil against MONY alleging violations of Brazilian law which allegedly arose out of the Appellees’ employment in Brazil and in Miami-Dade County with MONY and AXA. AXA brought the present breach of contract action against the Appellees in Miami-Dade County claiming the Appellees breached the Separation Agreements by filing the Brazilian suit. AXA and the Appellees each filed motions for summary judgment on the issue of whether the plain language of the Agreements demonstrated intent to release Appellees’ claims in the Brazilian lawsuit. The trial court found the Agreements’ language to be ambiguous, did not find a breach of contract, and granted final summary judgment in favor of the Appellees.

We disagree, reverse the trial court’s order and remand with instructions to enter summary judgment in favor of AXA.

We review the interpretation of the Agreements as a question of law under the de novo standard of review. See Muniz v. Crystal Lake Project, LLC, 947 So.2d 464 (Fla. 3d DCA 2006). We reject the Appel-lees’ contention that the release serves only to release AXA from domestic suits and not suits brought in foreign countries. The Appellees argue that, in paragraph 2(a) of the Agreement, the language of the release, “including but not limited to,” followed by an enumeration of certain causes of action, limits the scope of the General Release to only those enumerated suits and causes of action. Appellees argue paragraph 3 includes the same limiting language. We reject this interpretation. Paragraphs 2 and 3 specifically release and discharge AXA from any and all suits, actions, causes of action, damages and claims in law or equity which Appellees ever had or will have regarding any matter of Appellees’ employment. The language of the release, “including but not limited to,” does not limit the General Release to those causes of action specifically listed. The release clearly shows AXA is released from any and all causes of action arising out of their employment and that the release includes, but is not limited to, just those enumerated causes of action. See State Farm Mut. Auto. Ins. Co. v. Lynch, 661 So.2d 1227 (Fla. 3d DCA 1995) (holding that the language in a release “and includes ...” does not limit the release to only those damages listed). We find that the clear and unambiguous terms of the Agreements, given their plain meaning, constitute a general release. See, e.g., Pateo Transp., Inc. v. Estupinan, 917 So.2d 922, 923 (Fla. 1st DCA 2005) (finding that release language requiring employee to release employer from “any and all past, present or future claims, demands, obligations, actions, causes of action, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery” was broad enough to encompass workers’ compensation claim); Bd. of Trs. of Fla. Atl. Univ. v. Bowman, 853 So.2d 507, 509 (Fla. 4th DCA 2003) (finding that language in the general release requiring plaintiff to release defendant from all claims which had accrued, or could have accrued, as of the date of the proposal for settlement, was consistent with a general release and was clear and unambiguous); Hold v. Manzini, 736 So.2d 138, 141 (Fla. 3d DCA 1999) (finding that release language stating, “[W]hich said first party ever had, now has, or which any personal representative, successor, heir or assign of said first party, hereafter can, shall or may have against said second party, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents” was clear and unambiguous in that it required the plaintiff to release the defendant for all claims which had accrued as of the date of its execution).

Pursuant to the general and full releases they executed, the Appellees are barred from bringing any claim or action arising out of their employment against AXA in any forum. We find that the Appellees breached their Agreements by bringing suit in Brazil against AXA. Therefore, the trial court erred in granting the motion for summary judgment in favor of Appellees and should have granted AXA’s motion for summary judgment on the breach of contract claim. We reverse and remand with directions to enter final summary judgment, as a matter of law, in favor of AXA.

Reversed and remanded with directions.

      . 2. a. In consideration of the payment described above, and for other good and valuable consideration, Employee hereby releases and forever discharges, and by this instrument releases and forever discharges, AXA Equitable from all debts, obligations, promises, covenants, agreements, contracts, endorsements, bonds, controversies, suits, actions, causes of action, judgments, damages, expenses, claims or demands, in law or in equity, which Employee ever had, now has, or which may arise in the future, regarding any matter arising on or before lire date of Employee's execution of this Agreement, including but not limited to all claims (whether known or unknown) regarding Employee's employment with or termination of employment from AXA Equitable, any contract (express or implied), any claim for equitable relief or recovery of punitive, compensatory, or other damages, or monies, attorneys’ fees, any tort, and all claims for alleged discrimination based upon age, race, color, sex, sexual orientation, marital status, religion, national origin, handicap, disability, or retaliation, including any claim, asserted or unasserted, which could arise under Title VII of the Civil Rights Act of 1964; the Equal Pay Act of 1983; the Age Discrimination in Employment Act of 1967; the Americans With Disabilities Act of 1990; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Employee Retirement Income Security Act of 1974; the Family and Medical Leave Act of 1993; the Civil Rights Act of 1991; the Worker Adjustment and Retraining Notification Act of 1988; the Sarbanes-Oxley Act; the Florida Civil Human Rights Act of 1992; the Florida AIDS Act Equal Pay Law; the Florida Whistleblower Protection Act; the Florida Wage Discrimination Law; the Florida Sickle Cell Trait Discrimination Law; the Florida Genetic Testing in Employment Law; the Florida Smoking Rights Law; the New York State Human Rights Law; the New York City Human Rights Law; and any other federal, state or local laws, rules or regulations, whether equal employment opportunity laws, rules or regulations or otherwise, or any right under any AXA Equitable retirement, welfare, or AXA Financial stock plans
      3. [P]ursuant to and as a part of Employee’s release and discharge of AXA Equitable, as set forth herein, Employee agrees, not inconsistent with EEOC Enforcement Guidance on Non-Waivable Employee Rights Under EEOC-Enforced-Statutes dated April 11, 1997, and to the fullest extent permitted by law, not to sue or file a charge, complaint, grievance or demand for arbitration against AXA Equitable in any forum or assist or otherwise participate willingly or voluntarily in any claim, arbitration, suit, action, investigation or other proceeding of any kind which relates to any matter that involves AXA Equitable, and that occurred up to and including the date of Employee’s execution of this Agreement....


author: SALTER, J.

text:
    LORILLARD TOBACCO COMPANY, Appellant, v. Lynn FRENCH, Appellee.
    No. 3D08-1525.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    Shook, Hardy & Bacon and William P. Geraghty; Greenberg Traurig and Elliot H. Seherker and David L. Ross and Daniel M. Samson, for appellant.
    Grover & Weinstein and Marvin Wein-stein, for appellee.
    Before GERSTEN, C.J., and CORTINAS and SALTER, JJ.
   SALTER, J.

Lorillard Tobacco Company appeals a final circuit court order awarding over five years of statutory prejudgment interest to the attorneys for a plaintiff, appellee Lynn French, on an award of attorney’s fees and costs. That award was entered because the plaintiff had made a qualifying offer of judgment and proposal for settlement pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2000). Finding that plaintiffs counsel became “entitled” to the fees and costs as of the date the plaintiff obtained a judgment substantially higher than 125% of her written settlement offer, we affirm.

The Offer

The plaintiff was one of several thousand flight attendants who sued tobacco companies for second-hand exposure to smoke. On November 13, 2000, Ms. French’s attorney tendered an offer of judgment to settle her claim for $2,676. Lorillard did not accept the offer.

At trial of the case in 2002, a jury awarded Ms. French $5,500,000. On September 24, 2002, the court granted a motion for remittitur and entered an amended final judgment in the amount of $500,000. Lorillard’s appeal to this Court and petition for review by the Supreme Court of Florida were unsuccessful, and Lorillard then paid the amended judgment.

Meanwhile, the plaintiff moved for an award of her attorney’s fees and costs incurred after the offer of judgment was made, together with prejudgment interest on that amount commencing from the date of entry of the amended final judgment. Lorillard argued that prejudgment interest did not commence until the trial court entered an order disallowing Lorillard’s objections to the validity of the offer of judgment and the plaintiffs good faith (or lack thereof) in making the offer.

For reasons that are not apparent from the record, the parties did not obtain a trial court order disallowing Lorillard’s objections to an award of attorney’s fees and costs until April 2007. Lorillard did not appeal that order, and it paid the attorney’s fees and costs to plaintiffs counsel, but Lorillard reserved the right to dispute the remaining claim for prejudgment interest on the amount of those attorney’s fees and costs. In March 2008, the trial court ruled that prejudgment interest began accruing upon the entry of the amended final judgment in 2002 rather than the entry of the order in 2007 overruling Lorillard’s objections to an award of attorney’s fees and costs. This appeal followed.

The Rule and Statute Fix the Date a Party Is “Entitled” to Fees

The Florida Supreme Court and this Court have regularly held that prejudgment interest begins to accrue on “the date the entitlement to attorney fees is fixed through agreement, arbitration award, or court determination.” Butler v. Yusem, 3 So.3d 1185 (Fla.2009) (quoting Quality Engineered Installation, Inc. v. Higley S. Inc., 670 So.2d 929, 930-31 (Fla. 1996)); Cincinnati Equitable Ins. Co. v. Haunt, 933 So.2d 1233 (Fla. 3d DCA 2006). The addition of prejudgment interest is appropriate because the sums of fees and costs are fixed amounts incurred at or before a certain date, the computation is simply a matter of arithmetic, and the statutory interest merely compensates a party for loss of use of the money. Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985).

Lorillard relies primarily upon Hilb, Ro-gal & Hamilton Co. of Fort Myers v. TB & Associates, Inc., 742 So.2d 256, 257 (Fla. 2d DCA 1997), in support of its argument that prejudgment interest does not begin to accrue until “the entry of the judgment making the determination of the entitlement to such fees.” In that case, however, the accrual date used by the trial court was the date of a hearing on entitlement rather than the date the court signed the judgment (some six weeks later). The opinion acknowledges that the appellees conceded that the later date applied, and it does not appear that the appellees advanced the argument and analysis relied upon by French and the trial court in this case (i.e., that “entitlement” vests upon the occurrence of the two conditions, not upon the date of some later hearing or order).

The language in the rule and statute on settlement offers is clear that when the qualifying conditions have occurred ((1) a written offer has been made in accordance with Rule 1.442 and “an applicable Florida law”, and (2) in the case of a plaintiff that is an offeror under section 768.79, the plaintiff “recovers a judgment in an amount at least 25 percent greater than the offer”), then the offeror is “entitled” to the award of attorney’s fees and costs. Rule 1.442(h)(1) merely grants a trial court the discretion to disallow such an award if it determines that “a proposal was not made in good faith.” The use of the word “disallow” again connotes that the entitlement vests when the qualifying conditions have occurred.

In this case, the qualifying conditions occurred in 2002. The years of further pleadings and arguments about the validity, sufficiency, or good faith of the offer and offeror did not result in any finding of “disentitlement” or “disapproval.” If trial courts defer the accrual date for prejudgment interest until the date any issues pertaining to the validity or good faith of the offer are determined, that will incent the offerees/obligors to delay the day of resolution. Such a result is clearly contrary to both the spirit and the letter of the rule and the statute invoked in this case.

Affirmed.

      . The parties resolved the amount of attorney’s fees and costs to be paid to counsel for the plaintiff; the only legal issue determined in the order appealed to this Court is the accrual date for prejudgment interest.

        . Philip Morris, Inc. v. French, 897 So.2d 480 (Fla. 3d DCA 2004), review denied, 918 So.2d 292 (Fla.2005).


author: GROSS, C.J.

text:
    The TRUSTEES OF COLUMBIA UNIVERSITY IN the CITY OF NEW YORK d/b/a Columbia University, Appellant, v. OCEAN WORLD, S.A., Richard O’Barry a/k/a Ric O’Barry, Earth Island Institute, Inc., a foreign corporation, Diana Reiss, Ph.D., Emory University and Lori Marino, Appellees.
    No. 4D08-4374.
    District Court of Appeal of Florida, Fourth District.
    May 6, 2009.
    Rehearing Denied July 10, 2009.

      Matthew Triggs, Gary W. Kovacs and Ronald J. Tomassi, Jr., Proskauer Rose LLP, Boca Raton, and Steven E. Obus, Proskauer Rose LLP, New York, NY, for appellant.
    Alexander Penalta and Colleen M. Stiger of Penalta & Stiger, P.A., Boca Raton, for appellee Ocean World, S.A.
   GROSS, C.J.

We reverse the circuit court’s order denying defendant Columbia University’s motion to dismiss for lack of personal jurisdiction. We hold that there is not personal jurisdiction under either subsections 48.193(l)(c) or (2), Florida Statutes (2007).

Ocean World, S.A., a foreign corporation, operates Ocean World Adventure Park in the Dominican Republic. In 2006, Ocean World contracted with Michael Briggs to purchase 12 dolphins from Taiji, Japan, for delivery in the Dominican Republic. Later, Ocean World entered into a “letter of intent” with the Taiji Whale Museum under which both agreed to “cooperate in a friendly exchange to study and conserve [dolphins].” Nothing in the contracts contemplated payment or performance in Florida. Florida is mentioned nowhere in the contracts.

After the Dominican Republic denied a permit to import the dolphins, Ocean World filed a lawsuit against multiple defendants, alleging intentional interference with a contractual or business relationship. Among these defendants were Diana Reiss and the Trustees of Columbia University.

The second amended complaint alleged that Columbia was “doing business” in Broward County, Florida through its alumni association, interactive internet classrooms, and an interactive website providing online courses that allow students to obtain graduate degrees and professional certificates. Also, the pleading alleged that Columbia “has owned, owns and/or has an interest in property rights” in various parcels of real estate in Palm Beach County. The complaint pointed to lawsuits filed by Columbia in Florida where the Trustees had “availed themselves of the benefits offered by the Florida judicial system.” In Count VIII, Ocean World attempted to pin liability on Columbia by painting Diana Reiss as the university’s “apparent agent” who was “authorized ... to interfere” with Ocean World’s contract and business relationship. Count IX alleged that Columbia had damaged Ocean World by negligently hiring or retaining Reiss, that if Columbia had better investigated Reiss before appointing her to her unpaid research position, then Columbia would have discovered that she was “unsuitable” due to her “activist activities and associations.”

Many exhibits were attached to the second amended complaint. Among these were printouts of the University’s interactive internet website and its alumni association online application. Neither contains the word “Florida”; neither is specifically directed at Florida. The website provides online education through downloadable lectures “anytime, anywhere.” Other exhibits showed Columbia’s various interests in real property in Florida. For example, the university held a mortgage on the Colony Hotel which was satisfied in 1971 and holds a vested remainder interest in another property.

Columbia moved to dismiss the case for lack of personal jurisdiction. The University’s supporting affidavits established the following facts:

1. Columbia does not have an office in Florida, maintains no bank accounts in Florida, and is not registered to conduct business in Florida.
2. Only 10 of Columbia’s 14,000 employees have Florida addresses. Eight of these employees have part-time or zero salary appointments. The remaining two employees are post-doctoral research scientists who temporarily located in Florida while doing work at laboratories with equipment not available at Columbia.
3. The Columbia Alumni Association, part of the university, is an association of all of Columbia’s alumni. Columbia has over 250,000 alumni living in the United States, its territories, and 184 countries. The goal of the Association is “to strengthen the bonds between Columbia University graduates worldwide through events, programs, and online resources.” The Association has 37 associations in the United States, “of which five are in Florida.” Each local association is permitted to have a website hosted on Columbia’s servers. “The websites provide information such as member requirements, leadership contacts, news, and events. The associations do not have a designated alumni office or phone number. Individual associations can only be contacted by emailing or mailing the officers at their respective addresses, or via telephone.”
4. Regarding the Columbia’s interactive website, Columbia offered some online graduate level courses. As of 2007, of 457 students enrolled on the website, only two of the students had Florida addresses. The lectures for students sitting in Florida originate in New York.
5. The majority of the lawsuits Columbia filed in Florida were to enforce foreign judgments. All of the previous lawsuits were unrelated to the subject matter of this case.
6. During the time covered by the second amended complaint, Diana Reiss was the Director of Marine Mammal Research Science Laboratory at marine science laboratory at the New York Aquarium in Brooklyn, New York. She lived in Connecticut and worked in New York. She has never been a Florida resident. She has never maintained a place of business or office in Florida.

The circuit court denied Columbia’s motion to dismiss without explanation.

To evaluate the issue of personal jurisdiction under the long-arm statute, section 48.193, Florida Statutes (2007), Florida courts must engage in the two-part analysis set forth in Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989).

First, there must be sufficient facts to bring the action within the ambit of the long-arm statute; if the statute applies, the next inquiry is whether there are sufficient “minimum contacts” to satisfy due process requirements. “Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant.” Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002). Because we have concluded that there are insufficient facts to create long-arm jurisdiction, we do not reach the issue of Columbia’s minimum contacts with Florida.

Ocean World asserts two statutory bases for jurisdiction. First, that Columbia “personally or through an agent” committed a “tortious act within this state” under section 48.193(l)(b). Second, that Columbia is subject to general jurisdiction because it is “engaged in substantial and not isolated activity within this state” under section 48.193(2).

For specific jurisdiction over Columbia to exist under section 48.193(l)(b), the University, through an agent, must have committed a tortious act in Florida. There must be a causal connection between the university’s Florida actions and the plaintiffs cause of action. See Am. Overseas Marine Corp. v. Patterson, 632 So.2d 1124, 1127 (Fla. 1st DCA 1994). Ocean World’s case against Columbia turns on the school’s relationship to Diana Reiss and her conduct. Another panel of this court has held that there is no long-arm jurisdiction over Reiss because the second amended complaint failed to demonstrate that she engaged in any tortious conduct within Florida. Reiss v. Ocean World, S.A., 11 So.3d 404 (Fla. 4th DCA 2009). Rather, the tort occurred in the countries where the contracts at issue were to be performed. Id. That case also held that Reiss did not have those minimum contacts with Florida necessary to support personal jurisdiction. If there is no jurisdiction over Reiss, the pm-ported tortfeasor, there can be no jurisdiction under section 48.193(l)(b) over Columbia, which supposedly acted through Reiss.

We next consider the issue of general jurisdiction under section 48.193(2). That statute provides that “[a] defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.” An assertion of general jurisdiction under section 48.193(2) requires a “showing of ‘continuous and systematic general business contacts’ ” with this state. Carib-USA Ship Lines Bahamas Ltd. v. Dorsett, 935 So.2d 1272, 1275 (Fla. 4th DCA 2006) (quoting Helicópteros Nacio-nales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)); Philip J. Padovano, Florida Civil Practice § 8.7 (2007 ed.); Seabra v. Inti Specialty Imports, Inc., 869 So.2d 732, 734 (Fla. 4th DCA 2004). The continuous and systematic general business contacts sufficient to confer general jurisdiction present a “much higher threshold” than those contacts necessary to support specific jurisdiction, under section 48.193(1). See Seabra, 869 So.2d at 734. One reason for requiring a more rigorous showing to establish general jurisdiction is because jurisdiction under section 48.193(2) does not require that a lawsuit’s cause of action arise from activity within Florida, or that there be any connection between the claim and the defendant’s Florida activities. See, e.g., Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80, 85 (Fla. 2d DCA 2003) (“This section [48.193(2) ] ‘does not require eon-nexity between a defendant’s activities and the cause of action.’ ”) (quoting Woods v. Nova Cos. Belize Ltd, 739 So.2d 617, 620 (Fla. 4th DCA 1999)); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (“Jurisdiction in [certain] circumstances may not be avoided merely because the defendant did not physically enter the forum State”).

Florida cases have found “continuous systematic business contacts” to confer general jurisdiction where a nonresident defendant’s activities are extensive and pervasive, in that a significant portion of the defendant’s business operations or revenue derived from established commercial relationships in the state. Such contacts have also been found where the defendant continuously solicits and procures substantial sales in Florida.

For example, in Woods v. Nova Cos. Belize Ltd., 739 So.2d 617 (Fla. 4th DCA 1999), this court found “continuous and systematic business activities” where the defendant established ongoing commercial relationships in Florida, 100% of its shipments traveled through Florida, 18% of its worldwide product sales were made to Florida importers, and it utilized storage facilities in Florida. Similarly, Stubbs v. Wyndham Nassau Resort and Crystal Palace Casino, 447 F.3d 1357, 1362 (11th Cir.2006), held that a foreign resort had continuous systematic contacts with Florida where the resort maintained numerous separate commercial relationships with Florida-based entities such as travel and vacation agencies, lawyers, insurance brokers, advertisers, and a host of construction and home décor companies and a significant portion of its vendors operated in Florida. Additionally, the resort’s Florida subsidiary solicited and coordinated reservations for over 50% of the resort’s guests. Id. at 1361-62.

To establish general jurisdiction under section 48.193(2), Ocean World relies on four types of activities. Even lumped together, these activities do not rise to the level of “continuous and systematic general business contacts” with Florida that would support a finding of general jurisdiction.

First, the second amended complaint refers to Columbia’s five alumni associations active in Florida. The purpose of a university’s alumni association is to foster a community among the school’s graduates to assist in recruitment and provide a source for donations. We agree with other courts which have held that the activities of a school’s alumni association are not the type of systematic, continuous business activity that results in general jurisdiction over the school. See Ferris v. Rollins Coll. Inc., No. 1:08-cv-00039-SPM-AK, 2008 WL 4569872, *3 (N.D.Fla. Oct.9, 2008) (citing Norris v. Oklahoma City Univ., No. C-93-1626-VRW, 1993 WL 313122, *2 (N.D.Cal. Aug.3, 1993) aff'd, 21 F.3d 1115 (9th Cir.1994)); Gallant v. Trustees of Columbia Univ., 111 F.Supp.2d 638 (E.D.Pa.2000); Duchesneau v. Cornell Univ., No. 08^1856, 2009 WL 533064 (E.D.Pa. Mar.3, 2009); Kendall v. Trs. of Amherst Coll., No. 06-4983, 2007 WL 172396, *5 (E.D.Pa. Jan.18, 2007); Fox v. Bd. of Supervisors of La. State Univ. and Agrie. & Mech Coll., 576 So.2d 978, 985 (La.1991).

Second, Ocean World argues that the distance learning program, the Columbia Video Network, is sufficient to confer general jurisdiction over Columbia, because the school is doing business on the internet and soliciting students from Florida. However, Columbia is correct that its internet program does not satisfy the requirements of section 48.193(2) because it does not amount to “substantial and not isolated activity within this state.” (Emphasis added). Only two students with Florida addresses were enrolled in online courses offered through the Video Network. “The mere existence of a website does not show that a defendant is directing its business activities towards every forum where the website is visible.” McBee v. Delica Co., 417 F.Bd 107, 124 (1st Cir. 2005). Columbia’s contacts with Florida through the website were not substantial. See Revell v. Lidov, 317 F.3d 467, 470-71 (5th Cir.2002); Trintee Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1281 (Fed.Cir.2005); Dynetech Corp. v. Leonard Fitness, Inc., 523 F.Supp.2d 1344, 1348 (M.D.Fla.2007); Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3d Cir.2003).

Third, Ocean World contends that Columbia’s property interests in Florida support a finding of general jurisdiction under section 48.193(2). For the most part, Columbia’s interests in property are contingent remainder interests or, in one case, a mortgage that was satisfied in 1971. As Columbia points out, the giving of a remainder interest is contingent on the election of the donor and does not depend on the acquiescence or even knowledge of the receiving party. Nothing demonstrates such a pervasive, commercial property ownership that would amount to a continuous and systematic business activity in Florida. Section 48.193(l)(c) would support a finding of specific jurisdiction for a cause of action arising from owning, using, or possessing real property in Florida, but there is no contention here that Ocean World’s causes of action arose from such ownership by Columbia. See Forrest v. Forrest, 839 So.2d 839, 841 (Fla. 4th DCA 2003) (citing Nichols v. Paulucci, 652 So.2d 389, 393 n. 5 (Fla. 5th DCA 1995)).

Fourth, Ocean World asserts that Columbia submitted itself to Florida jurisdiction by filing lawsuits in Florida, thereby availing itself “of the benefits offered by the Florida judicial system.” However, Columbia’s participation in other lawsuits in Florida concerning subject matters separate and distinct from this lawsuit does not create personal jurisdiction over the university in this case. The general rule is that by bringing an action, a plaintiff “subjects itself to the jurisdiction of the court and to such lawful orders which are thereafter entered with respect to the subject matter of the action.” Palm Beach Towers, Inc. v. Korn, 400 So.2d 110, 111 (Fla. 4th DCA 1981). “A current defendant’s prior decision to bring a suit in Florida should not act indefinitely as a sword of Damocles hanging perilously over the head of that defendant if [it] later challenges jurisdiction in a separate suit.” Gibbons v. Brown, 716 So.2d 868, 870 (Fla. 1st DCA 1998). Many of the Columbia’s lawsuits in Florida were actions to enforce foreign judgments. There is no indication that Columbia engaged in a pervasive litigation business that subjected it to jurisdiction under section 48.193(2).

For these reasons, we reverse the circuit court’s order denying the motion to dismiss for lack of personal jurisdiction and remand for the entry of an order granting Columbia’s motion.

POLEN and MAY, JJ., concur.

      . Because we decide this case on the issue of lack of personal jurisdiction over Columbia, we do not address the viability of the causes of action alleged.

      . Compare Northwestern Aircraft Capital Corp. v. Stewart, 842 So.2d 190, 195 (Fla. 5th DCA 2003) (holding that the trial court properly exercised general jurisdiction over corporation that marketed, distributed, repaired and sold parts in Florida and additionally provided continuous charter services in Florida); Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414, 416 (Fla. 1st DCA 2002) (finding general jurisdiction where defendant's activities generated millions of dollars in revenue from sales of its product in Florida); Travel Opportunities of Fort Lauderdale, Inc. v. Walter Karl List Mgmt., Inc., 726 So.2d 313, 314-15 (Fla. 4th DCA 1998) (holding that defendant's conduct amounted to “substantial and non-isolated activity” within Florida for purposes of general jurisdiction where its advertising strategy was designed to generate product sales in Florida and its dollar volume of sales was substantial); Pafco General Ins. Co. v. Wah-Wai Furniture Co., 701 So.2d 902 (Fla. 3d DCA 1997) (finding "continuous systematic business contacts” where the defendant sold 50,000 office chairs for approximately $1,000,000.00 per year over several years to a Miami distributor); Garris v. Thomasville-Thomas County Humane Soc’y, Inc., 941 So.2d 540, 549 (Fla. 1st DCA 2006) (holding that general jurisdiction existed where defendant directed significant advertisement towards residents of Florida, "targeting the populous Florida ‘market,’ ” solicited donations from Floridians, and had ongoing relationship with several Florida animal aid organization, including arrangements under which it regularly transferred animals to them for adoption in Florida); Banco Inversion, S.A. v. Celtic Fin. Corp., S.A., 907 So.2d 704, 710 (Fla. 4th DCA 2005) (holding defendant had requisite contacts under section 48.193(2), Florida Statutes, where it solicited consulting and other services from a Florida corporation in which a substantial amount of the services sought by defendant were performed in Florida) (citing Industrial Cas. Ins. Co. v. Consultant Associates, Inc., 603 So.2d 1355, 1356 (Fla. 3d DCA 1992)); Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1273 (11th Cir.2002) (finding general jurisdiction over defendant, whose Florida subsidiary coordinated over 50% of all its hotel guests); Morley v. Lady Allison, Inc., 633 So.2d 1173, 1174 (Fla. 3d DCA 1994) (exercising general jurisdiction where defendant’s activities of operating a yacht "involved Florida almost to the exclusion of any other jurisdiction” since its voyages depart and arrive in Miami; it spent $400,000 in Florida for maintenance and repairs; it purchased $50,000 for fuel through a Miami concern; and $45,000 in Miami for other necessities); Banco Cont'l, S.A. v. Transcom Bank, Ltd., 922 So.2d 395 (Fla. 3d DCA 2006) (holding that defendant's bank account and open line of credit in Florida utilized to transfer money in international commerce was insufficient to confer jurisdiction under section 48.193(2), Florida Statutes, where defendant operated its business in Honduras, had no employees or agents in Florida, and did not advertise or solicit business in Florida); Dev. Corp. of Palm Beach v. WBC Constr., L.L.C., 925 So.2d 1156 (Fla. 4th DCA 2006) (holding that defendant's activities were not sufficient to support general jurisdiction where it did not maintain an office, do business itself in the state, nor have an agent in the state); United Shipping Co. (Nassau) Ltd. v. Witmer, 724 So.2d 111, 723 (Fla. 3d DCA 1999) (holding defendants, who operated a boat tour in the Bahamas for which tickets are sold by Florida-based cruise lines on board their vessels, did not have the level of business in Florida to confer jurisdiction under section 48.193(2)); Hobbs v. Don Mealey Chevrolet, Inc., 642 So.2d 1149, 1153 (Fla. 5th DCA 1994) (finding trial court erred in exercising general jurisdiction over insurance carrier, where it issued one life insurance policy to state resident, maintained certificate of authority to transact insurance in state and held mortgage on real property within the state).
      A defendant's level of business in Florida is insufficient to constitute "continuous and systematic business activities” where only a de minimis percentage of the company's total volume of business and its yearly revenue was derived from its business relationships in Florida. See TRW Vehicle Safety Sys. Inc. v. Santiso, 980 So.2d 1149, 1153 (Fla. 4th DCA 2008) (holding that exercising general jurisdiction over defendant was improper where its actual sales in Florida were "a small percentage of the total sales and therefore these sales were de minimis ”); Snow v. DirecTV, Inc., 450 F.3d 1314 (11th Cir.2006) (declining to exercise general jurisdiction where defendant derived less than 1% of its revenues from matter connected to Florida and did not solicit Florida clients); Associated Trans. Line, Inc. v. Productos Pitosanitarios Proficol El Carmen, S.A., 197 F.3d 1070, 1075 (11th Cir. 1999) (finding that nine sales procured in a four-year period were insufficient to support general jurisdiction); Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1167 (11th Cir.2005) (finding that where defendant had only six Florida clients who accounted for, at most, less than 5% of its gross revenue, such acts did not establish that defendant was engaged in a general course of business); Milberg Factors, Inc. v. Greenbaum, 585 So.2d 1089, 1091 (Fla. 3d DCA 1991) (finding defendant’s contacts did not support specific or general jurisdiction when defendant’s only business contacts with the forum amounted to less than 2% of defendant’s revenue); accord Dalton v. R & W Marine, Inc., 897 F.2d 1359, 1362 & n. 3 (5th Cir. 1990) (holding that it is improper to exercise general jurisdiction when defendant’s purchases combined with its sales in the forum yielded 12.9% of its total income).


author: COPE, J.

text:
    The STATE of Florida, Appellant, v. James GREEN, Appellee.
    No. 3D08-645.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   COPE, J.

The State of Florida (the “State”) appeals defendant-appellee James Green’s downward departure sentence. We affirm.

The State claims that the downward departure sentence of defendant Green was error because the State objected to the sentence and the trial court failed to provide written reasons in support of the downward departure. The defendant argues that the matter was not properly preserved by an objection which was sufficiently precise to fairly inform the trial court of the error. We agree with the defendant.

During the defendant’s trial, as the court was about to rule on the admissibility of a key piece of evidence, the court inquired about what plea offers had been extended in the case. The State extended two alternative offers. Neither was accepted by the defendant, but the defendant said that he would accept thirty months in prison. There was then a sidebar conference after which the following exchange took place:

[DEFENSE COUNSEL]: My client will take 36 months.
THE COURT: All right. Stand up.
[DEFENSE COUNSEL]: Does he get credit- for the time he’s served, Judge?
THE COURT: Yes, and as an HO with modalities.
[STATE]: For the record, I’d say the State did try to withdraw from negotiations. We offered five years or three years followed by three years and HO and this is—
THE COURT: Okay.
[STATE]: — but we did withdraw—
THE COURT: Okay. After I offered it you withdrew.

The court then sentenced defendant to thirty-six months incarceration as a habitual felony offender. The defendant’s guidelines sentence was eighty-four months incarceration.

The State has appealed, arguing that the sentence was a downward departure without departure reasons. We affirm the sentence because the State failed to preserve the issue in the trial court. As we have previously stated, to properly preserve the issue, the State must call the court’s attention to the need for downward departure reasons with a proper objection. See State v. Merriweather, 875 So.2d 1288 (Fla. 3d DCA 2004); State v. Henriquez, 717 So.2d 1087 (Fla. 3d DCA 1998); see also State v. Golkiewicz, 930 So.2d 862 (Fla. 4th DCA 2006). The State did not object to the downward departure and did not request reasons for the downward departure. The State merely withdrew from negotiations.

Affirmed.


author: COHEN, J.

text:
    Eugene Fitzgerald BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2393.
    District Court of Appeal of Florida, Fifth District.
    May 8, 2009.
    Rehearing Denied June 17, 2009.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

ON REMAND

On remand from the Florida Supreme Court, we have vacated and withdrawn our previously issued mandate in light of Martinez v. State, 981 So.2d 449 (FIa,2008), which addressed the forcible felony exception to self-defense. In relevant part, the forcible felony exception provides that a defendant may not avail himself of the defense of self-defense if he is engaged in attempting, committing, or escaping after the commission of a forcible felony. § 776.041(1), Fla. Stat. (1999). Trial courts have undoubtedly encountered difficulty in applying and instructing on this exception.

Martinez, 981 So.2d at 454, makes clear that the forcible felony exception applies only in cases when the defendant engages in an independent forcible felony. Thus, the exception is very narrowly applied, and in most cases should simply be omitted from the instructions given to the jury. Martinez further holds that when the defendant fails to contemporaneously object and the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, “fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’ ” Id. at 455, citing Smith v. State, 521 So.2d 106, 108 (Fla.1988). The fundamental error doctrine “should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Id. at 455, citing Ray v. State, 403 So.2d 956, 960 (Fla.1981).

Barnes was charged with attempted murder in the first degree stemming from the shooting of Kenneth Brown. The case proceeded to trial where the jury was instructed on Barnes’ claim of self-defense. As part of that instruction, the jury was informed the use of force likely to cause death or great bodily harm was not justified if Barnes was attempting to commit, committing, or escaping after the commission of attempted murder and/or aggravated battery. Barnes did not object to the instruction. The jury subsequently convicted Barnes of attempted murder in the second degree.

After reviewing the complete record, we conclude that this is not one of those rare cases where the interests of justice compel reversal. The victim in this case was shot eight times, including once in the back while he fled from the hail of bullets. Furthermore, the State never argued to the jury that Barnes’ commission of a forcible felony in shooting Brown defeated his claim of self-defense.

AFFIRMED.

PALMER, C.J., and SAWAYA, J., concur.