       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

              CORNERSTONE INVESTMENT FUNDING, LLC,
                            Appellant,

                                    v.

                     PAINTED POST GROUP, INC.,
                              Appellee.

                             No. 4D15-1907

                            [March 16, 2016]

  Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Lisa S. Small, Judge; L.T. Case No.
502014CA004263 AH.

  Steven A. Matta of Matta Blair, PLC, Bloomfield Hills, Michigan, for
appellant.

  Arnold R. Ginsberg of Arnold R. Ginsberg, P.A., Miami, and Jared L.
Gamberg of Jared L. Gamberg, P.A., Hollywood, for appellee.

                        ON MOTION FOR REHEARING

PER CURIAM.

   We grant the Motion for Rehearing filed by Appellee Painted Post Group,
withdraw our previously issued opinion dated January 27, 2016, and
replace it with the following:

   Appellant, Cornerstone Investment Funding, LLC (“Cornerstone”), a
Virginia-based entity, appeals the trial court’s denial of its motion to
dismiss for lack of personal jurisdiction.1 We reverse, concluding that
Cornerstone lacked sufficient minimum contacts with Florida to satisfy
due process.

                              Background

1 This Court has jurisdiction based on Florida Rule of Appellate Procedure
9.130(a)(3)(C)(i).
   The complaint alleged as follows. Arnold S. Goldin, Inc., loaned
Cornerstone $300,000. The loan was evidenced by a promissory note
signed by the parties separately in Virginia and Florida.         Goldin
subsequently assigned its interest in the promissory note to appellee,
Painted Post Group, Inc. (“Post Group”), with which Goldin was affiliated.
Both Goldin and Post Group were located in Palm Beach County.

    When Cornerstone failed to make payments on the note, Post Group
filed suit in Palm Beach County against Cornerstone and others for,
amongst other things, repayment of the loan. The defendants in the action
below moved for summary judgment, alleging the trial court lacked
personal jurisdiction over the non-resident defendants. A predecessor
judge granted the motion but also granted leave for Post Group to amend
its complaint.

    Post Group filed an amended complaint only against Cornerstone,
alleging a single count for breach of contract. Cornerstone moved to
dismiss for lack of personal jurisdiction and, after conflicting jurisdictional
affidavits were filed by the parties, the trial court held an evidentiary
hearing. The only witness to testify at the hearing was Arnold Goldin, a
principal of Arnold S. Goldin, Inc. Arnold Goldin claimed the parties had
entered into a “verbal agreement” that payments on the promissory note
would be made to his business address in Palm Beach County. Based on
Arnold Goldin’s testimony, a successor judge2 concluded that Post Group
had established both jurisdictional facts and minimum contacts between
Cornerstone and Florida sufficient to assert personal jurisdiction over
Cornerstone. From that order, Cornerstone brings this appeal.

                                    Analysis

   Personal jurisdiction over a non-resident defendant may be exercised
only when the following two-pronged test has been satisfied: (1) the
complaint alleges facts that would subject the defendant to Florida’s “long-



2 Cornerstone argues that the predecessor judge’s grant of summary judgment
as to personal jurisdiction bound the successor judge to rule in its favor on the
subsequent motion to dismiss for lack of personal jurisdiction. However, since
that order likewise granted Post Group leave to amend the complaint, no final
judgment on personal jurisdiction existed for which collateral estoppel would
apply. Hanover Ins. Co. v. Marriott Int’l, Inc., 685 So. 2d 894, 895 (Fla. 4th DCA
1997).


                                        2
arm” statute,3 and (2) the defendant has sufficient “minimum contacts” to
meet traditional notions of fair play and substantial justice such that the
defendant could ‘“reasonably anticipate being haled into court’” due to its
actions. Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 501 (Fla. 1989)
(quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980)); Henderson v. Elias, 56 So. 3d 86 (Fla. 4th DCA 2011). Failure to
pay on a contract requiring payment in Florida has been found sufficient
to satisfy Florida’s long-arm statute conferring jurisdiction over breach of
contract actions. Smith Architectural Grp., Inc. v. Dehaan, 867 So. 2d 434,
436 (Fla. 4th DCA 2004). Post Group’s amended complaint thus meets
the first prong of the Venetian Salami test.

   The mere fact, however, that Cornerstone allegedly breached a contract
by failing to make payments on the contract in Florida would not
constitute sufficient minimum contacts with this state to satisfy due
process. Taskey v. Burtis, 785 So. 2d 557, 559 (Fla. 4th DCA 2001)
(“Factors that go into determining whether sufficient minimum contacts
exist include the foreseeability that the defendant’s conduct will result in
suit in the forum state and the defendant’s purposeful availment of the
forum’s privileges and protections.”); Labry v. Whitney Nat’l Bank, 8 So. 3d
1239, 1241 (Fla. 1st DCA 2009); Ganiko v. Ganiko, 826 So. 2d 391, 394-
95 (Fla. 1st DCA 2002). As neither Post Group’s amended complaint nor
Goldin’s hearing testimony showed that any related substantial act beyond
repayment of the promissory note was required to be and/or actually was
performed in Florida, Cornerstone does not have sufficient minimum
contacts with this state to support the assertion of personal jurisdiction
over it. See deMco Techs., Inc. v. C.S. Eng’d Castings, Inc., 769 So. 2d
1128, 1131 (Fla. 3d DCA 2000).

                                   Conclusion

   Accordingly, the order appealed from is reversed and remanded with
directions to grant Cornerstone’s motion to dismiss without prejudice to
Post Group refiling its complaint in an appropriate forum.

    Reversed and remanded for further proceedings.



3 “A person, whether or not a citizen or resident of this state, who personally or
through an agent does any of the acts enumerated in this subsection thereby
submits himself or herself . . . to the jurisdiction of the courts of this state for
any cause of action arising from any of the following acts . . . . Breaching a
contract in this state by failing to perform acts required by the contract to be
performed in this state.” § 48.193(1)(a)7., Fla. Stat. (2013).

                                         3
CIKLIN, C.J., DAMOORGIAN and FORST, JJ., concur.

                          *        *        *

   Not final until disposition of timely filed motion for rehearing.




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