JAMES C. DOW, APPELLANT,
v.
FIDELITY INVESTMENTS A/K/A FIDELITY BROKERAGE SERVICES, LLC, CONNOR EVERS, JACOB EVERS, ERICA EVERS, GLORIA EVERS, AND MICHAEL EVERS, APPELLEES
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Plaintiff appeals the dismissal of his fifth amended complaint against Gloria Evers and Michael Evers. The appellate court affirmed the dismissal on the ground that the complaint failed to state a cause of action, despite finding that defendants waived their personal jurisdiction argument by not raising it in response to the original complaint.
The appellate court held that Gloria Evers and Michael Evers waived their personal jurisdiction argument by failing to raise it in response to the original complaint. However, the court affirmed the dismissal on the alternative ground that the complaint failed to state a cause of action against them, and that further amendment would be futile.
[1] A defendant waives the argument that a complaint fails to establish personal jurisdiction by failing to raise that ground in response to the original complaint.
[2] A trial court's judgment will be upheld if it reaches the right result, even if for the wrong reasons, provided there is a basis in the record to support the judgment.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is well established that if a party takes some step in the proceedings which amounts to a submission to the court's [personal] jurisdiction, then it is deemed that the party waived [their] right to challenge the court's jurisdiction regardless of the party's intent not to concede jurisdiction.”
Establishes the waiver doctrine applied to defendants' failure to raise jurisdictional challenge to original complaint
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Join FLexlaw to unlock all legal intelligencePlaintiff James C. Dow sued Fidelity Investments and several named individuals, including Gloria Evers and Michael Evers. The defendants moved to dism…
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The plaintiff appeals from the circuit court’s final order granting with prejudice defendants Gloria Evers’ and Michael Ev-ers’ motion to dismiss the plaintiffs fifth amended complaint against them. In the motion, Gloria Evers and Michael Evers argued that the plaintiffs fifth amended complaint failed to establish personal jurisdiction over them, and faded to state a cause of action against them.
The circuit court granted the motion, finding: (1) the plaintiff failed to satisfy Florida’s long-arm statute, section 48.193, Florida Statutes (2016), because Gloria Ev-ers’ and Michael Evers’ “alleged communications are not tortious in and of themselves and do not give rise to a cause of action to which a Florida court has jurisdiction”; and (2) “even if Plaintiff had satisfied the requirements of the long-arm statute ... Plaintiff has failed to establish adequate minimum contacts for this Court to exercise jurisdiction” over Gloria Evers and Michael Evers.
We agree with the plaintiffs argument on appeal that Gloria Evers and Michael Evers waived their argument that the plaintiffs fifth amended complaint failed to establish personal jurisdiction over them, because they failed to raise that *1011ground in response to the original complaint against them. See Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005) (“It is well established that if a party-takes some step in the proceedings which amounts to a submission to the court’s [personal] jurisdiction, then it is deemed that the party waived [their] right to challenge the court’s jurisdiction regardless of the party’s intent not to concede jurisdiction.”) (citation, brackets, and internal quotation marks omitted).
However, we conclude without further discussion that the circuit court should have granted Gloria Evers’ and Michael Evers’ motion to dismiss on the ground that the plaintiffs fifth amended complaint failed to state a cause of action against them. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).
Based on the numerous opportunities which the circuit court gave to the plaintiff to attempt to state a cause of action against Gloria Evers and Michaei Evers, and because it appears that giving the plaintiff another opportunity to amend the complaint would be futile, we affirm the circuit court’s final order granting with prejudice Gloria Evers’ and Michael Evers’ motion to dismiss the plaintiffs fifth amended complaint against them. See McCray v. BellSouth Telecommunications, Inc., 213 So.3d 938, 939 (Fla. 4th DCA 2017) (“Refusal to allow an amendment is an abuse of the trial court’s discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.”) (emphasis added; citation and internal quotation marks omitted).
Affirmed.
Levine and Conner, JJ., concur.
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- Dade Cnty. Sch. Bd. v. Radio Station Wqba, 731 So. 2d 638 (Fla. 1999)
- Solmo v. Friedman, 909 So. 2d 560 (Fla. 4th DCA 2005)
- Lemen McCray v. Bellsouth Telecomms., Inc., 213 So. 3d 938 (Fla. 4th DCA 2017)