       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 13, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-943
                          Lower Tribunal No. 16-9184
                             ________________

              TBI Caribbean Company LTD., etc., et al.,
                                   Appellants,

                                        vs.

                         Stafford-Smith, Inc., etc.,
                                    Appellee.


     An appeal from a non-final order from the Circuit Court for Miami-Dade
County, John Schlesinger, Judge.

      The Bain Law Firm P.L. and Basil L. Bain (Naples), for appellants.

      Vernon Litigation Group and Jeffrey S. Haut and Sara F. Hall (Naples), for
appellee.


Before SUAREZ, LOGUE, and SCALES, JJ.

      SUAREZ, J.

      TBI Caribbean Company, Ltd. and Jesus Hinojosa (Appellants/Defendants

below) appeal from the trial court’s non-final order denying their motions to
dismiss Stafford-Smith, Inc.’s (Appellee/Plaintiff below) Complaint for failure to

allege a sufficient basis for invoking personal jurisdiction. Because we find that

TBI and Hinojosa waived their objection to personal jurisdiction by seeking

affirmative relief under a Subcontract Agreement, which was inconsistent with

their jurisdictional objection, we affirm.

                                  BACKGROUND

      TBI and Stafford-Smith entered into a Subcontract Agreement in which TBI,

the contractor, agreed to pay Stafford-Smith, the subcontractor, to complete work

on the Baha Mar resort in Nassau, Bahamas.            According to the Complaint,

Hinojosa signed a personal guarantee of TBI’s debt.           The Complaint’s only

allegation regarding personal jurisdiction was the following: “Pursuant to the

explicit terms of the contract, paragraph 38-C, jurisdiction is proper in Miami,

Florida.” Paragraph 38(c), in turn, provides as follows:

             To the extent that any dispute, controversy, or claim
             arises under this Subcontract and a suit is initiated by
             either party, the suit, shall be brought in and before the
             State Court in Dade County, Florida, wherein exclusive
             jurisdiction    shall     lie.   This     agreement       on
             jurisdiction/venue shall override any conflicting state
             statute and, for any such lawsuit, Subcontractor hereby
             waives any rights to assert any different
             jurisdiction/venue pursuant to a conflicting state statute.

      In response to the Complaint, TBI and Hinojosa filed motions to dismiss for

failure to state causes of action for personal guarantee and breach. TBI and



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Hinojosa also sought dismissal for failure to allege a sufficient basis for asserting

personal jurisdiction. Both motions included a request for attorney’s fees pursuant

to a fee provision in the Subcontract Agreement. The circuit court denied the

motions to dismiss, and TBI and Hinojosa appeal.

                                    ANALYSIS

      The only issues on appeal concern personal jurisdiction. TBI and Hinojosa

argue that the circuit court erred in denying their motions to dismiss because the

Complaint was required to allege sufficient bases for Florida courts to exercise

personal jurisdiction, and the only allegation, a single reference to the Subcontract

Agreement, was insufficient. See, e.g., Four Star Resorts Bahamas, Ltd. v. Allegro

Resorts Mgmt. Servs., Ltd., 811 So. 2d 809, 811 (Fla. 3d DCA 2002) (“The

legislature has set forth in our long arm statute the policy of this State concerning

when Florida courts can exercise in personam jurisdiction over non-resident

defendants. Conspicuously absent from the long arm statute is any provision for

submission to in personam jurisdiction merely by contractual agreement.” (quoting

McRae v. J.D./M.D., Inc., 511 So. 2d 540, 543 (Fla. 1987))). We agree. The

Complaint was facially insufficient because the only alleged basis for personal

jurisdiction was the Subcontract Agreement’s forum selection clause.

      Stafford-Smith does not dispute that the Complaint was insufficient.

Instead, it argues (1) that the appeal should be dismissed as moot because it sought



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to amend the Complaint below and (2) TBI and Hinojosa waived their objection to

personal jurisdiction by requesting attorney’s fees under the Subcontract

Agreement.

      Stafford-Smith’s mootness argument is without merit. On the same day

Stafford-Smith filed its Answer Brief, it filed a Motion for Leave to Amend the

Complaint in the circuit court. Initially, the circuit court granted the Motion, and

Stafford-Smith filed two motions to supplement the record on appeal with both the

Motion to Amend and the Order granting the Motion. However, this Court denied

both of Stafford-Smith’s motions to supplement. The circuit court subsequently

vacated its order granting Stafford-Smith’s Motion for Leave to Amend.

Consequently, there is no amended complaint below, and everything is as it was

when this appeal was filed.

      We next consider Stafford-Smith’s waiver argument. TBI and Hinojosa

requested attorney’s fees in their motions to dismiss below and in a motion filed in

this appeal. Stafford-Smith argues that TBI and Hinojosa waived their objection to

personal jurisdiction by seeking attorney’s fees pursuant to the Subcontract

Agreement.1 We agree.

      It is well established that personal jurisdiction may be waived by seeking

relief that is inconsistent with a jurisdictional objection.      See Babcock v.

1Hinojosa is not a party to the Subcontract Agreement, and it is not clear on what
grounds his recovery of fees is sought. See Fla. R. App. P. 9.400(b).

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Whatmore, 707 So. 2d 702, 703-04 (Fla. 1998); Cumberland Software, Inc. v.

Great Am. Mortg. Corp., 507 So. 2d 794, 795 (Fla. 4th DCA 1987) (“If a party

takes some step in the proceedings which amounts to a submission to the court's

jurisdiction, then it is deemed that the party waived his right to challenge the

court's jurisdiction regardless of the party's intent not to concede jurisdiction.”

(citations omitted)).

      Although the issue of whether a request for attorney’s fees waives an

objection to personal jurisdiction has rarely been addressed by Florida courts,2 TBI

and Hinojosa point us to two cases in support of their argument that their demand

for attorney’s fees did not waive their objection to personal jurisdiction.

      Heineken v. Heineken, 683 So. 2d 194 (Fla. 1st DCA 1996) appears to be

one of the first Florida cases to address the issue.        There, the First District

recognized that courts in other jurisdictions have taken various positions in

determining whether a fee request waives an objection to personal jurisdiction. Id.

at 197. The court ultimately determined that a request for fees under Dresser v.

Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977) did not waive an objection to

personal jurisdiction. Id. at 198. Similarly, the Fourth District determined that in


2 See Heineken v. Heineken, 683 So. 2d 194, 197 (Fla. 1st DCA 1996) (“The
parties have not cited, and we have not found, any decision in Florida case law
addressing whether a request for attorney's fees incurred in the prosecution of a
motion to dismiss for lack of personal jurisdiction constitutes a request for
‘affirmative relief’ which waives the objection to personal jurisdiction.”).

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an action for child support, jurisdiction was not waived by the filing of a motion

for attorney’s fees in connection with a motion to dismiss for lack of personal

jurisdiction. Gustafasson v. Levine, 186 So. 3d 562, 564 (Fla. 4th DCA 2015)

(citing Heineken, 683 So. 2d at 198).

      The Heineken court concluded, based on a Washington Supreme Court case,

that the motion to recover attorney’s fees was purely defensive in nature and not

“affirmative relief.” Id. We agree with Judge Benton’s concurring opinion that

such a distinction is problematic because “the weight of authority supports the

view that an award of attorney’s fees does constitute affirmative relief.” Id. at 199

(Benton, J., concurring). Consequently, a more “pertinent inquiry is whether the

request is inconsistent with the jurisdictional objection.” Id. at 200 (Benton, J.,

concurring); see also 4 Fla. Prac., Berman’s Florida Civil Procedure § 1.140:21

(April 2017) (“Lack of personal jurisdiction is unquestionably waivable, as any

party, individual or entity can voluntarily submit to the court's jurisdiction whether

or not otherwise legally susceptible . . . . Some of the fear of inadvertent waiver

has been eased in modern times by the abolition of the requirement for a special or

limited appearance; as long as the defense is raised upon the first response to a

claim for affirmative relief, whether by motion or answer, and as long as the party

does not inconsistently seek affirmative relief in the jurisdiction, the defense is

preserved.” (footnotes omitted and emphasis added)).



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      Here—unlike in Heineken and Gustafasson—TBI and Hinojosa have

requested an award of attorney’s fees pursuant to a contract, which would require

both this Court and the court below to assume jurisdiction in order to enforce the

Subcontract Agreement’s fee provision. Moreover, the request for fees below was

not limited to fees incurred in connection with defending against the exercise of

personal jurisdiction, it also requested fees in connection with the other alleged

bases for dismissal.    We therefore find that TBI and Hinojosa waived their

objection to personal jurisdiction by inconsistently seeking affirmative relief.

      Affirmed.




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