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In Bond, the plaintiff filed a complaint against former officers and directors of a corporation" 'as Assignee...for the Assignment for the Benefit of Creditors'" of that corporation.
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Case No. 2D20-1510
03-10-2021
Travis BOND ; Lisa Bond ; Joy Powell ; Amy Gleason; Karen Gittens; Allison Guley; Robert Crutchfield; John Tulli; Ian Sigalow; Joel Krikston; Ashok Subramanian; Douglas Free; David Free ; David Lefell; Ruben King-shaw; and Mano Kalathil, Appellants, v. Joseph J. LUZINSKI, as Assignee for the Assignment for the Benefit of Creditors of CareSync, Inc., Appellee.
Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for Appellants. Jocelyn Ramos and Robin Taylor Symons of Gordon Rees Scully Mansukhanis, Miami, for Appellant, Mano Kalathil. Brett M. Amron, Dana R. Quick and Peter J. Klock, II, of Bast Amron LLP, Miami, for Appellee.
Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, for Appellants.
Jocelyn Ramos and Robin Taylor Symons of Gordon Rees Scully Mansukhanis, Miami, for Appellant, Mano Kalathil.
Brett M. Amron, Dana R. Quick and Peter J. Klock, II, of Bast Amron LLP, Miami, for Appellee.
SLEET, Judge.
Appellants were the officers and directors of CareSync, Inc. In 2018, CareSync ceased all operations, and Joseph Luzinski was named its assignee. On February 7, 2020, Luzinski filed the underlying breach of fiduciary duty action against Appellants (collectively, the Officers and Directors). The Officers and Directors subsequently filed their Motion to Dismiss for Improper Venue Based Upon a Mandatory Forum Selection Clause. The Officers and Directors now challenge the trial court's order denying that motion. Because Luzinski was acting within his authority as the assignee when he filed suit in Hillsborough County, we affirm.
CareSync was incorporated in Delaware but operated out of Tampa. The assignment document designated Luzinski as the assignee of all of CareSync's assets and provided as follows:
The assignee shall take possession of, and protect and preserve, all such assets and administer the estate in accordance with the provisions of chapter 727, Florida Statutes, and shall liquidate the assets of the estate with reasonable dispatch and convert the estate into money, collect all claims and demands hereby assigned as may be collectible, and pay and discharge all reasonable expenses, costs, and disbursements in connection with the execution and administration of this assignment from the proceeds of such liquidations and collections.
....
To accomplish the purposes of this assignment, the assignor hereby appoints the assignee its true and lawful attorney, irrevocable, with full power and authority to do all acts and things which may be necessary to execute the assignment hereby created; to demand and recover from all persons all assets of the estate; to sue for the recovery of such assets; to execute, acknowledge, and deliver all necessary deeds, instruments, and conveyances; and to appoint one or more attorneys under her or him to assist the assignee in carrying out her or his duties hereunder.
(Emphasis added.)
Pursuant to the assignment document, Luzinski petitioned the court for an assignment for the benefit of creditors. And the trial court granted the assignment and ultimately extended it pursuant to section 727.108(4), Florida Statutes (2018), finding that "it is in the best interests of [CareSync]'s estate for [Luzinski] to operate [CareSync]'s business for a period of time longer than the initial 45 calendar days prescribed by statute" and authorizing Luzinski to "operate [CareSync]'s business through December 5, 2018."
On February 7, 2020, Luzinski, "as Assignee ... for the Assignment for the Benefit of Creditors of Assignor CareSync," filed a complaint for breach of fiduciary duty against the Officers and Directors. As to venue, Luzinski alleged that the suit "stemm[ed] from actions that occurred in Hillsborough County," that several of the Officers and Directors were residents of Hillsborough County, and that all of the Officers and Directors had operated a business venture and committed tortious acts within the State of Florida.
The Officers and Directors responded by filing a motion to dismiss for improper venue, citing "the mandatory forum selection clause under Article TWELFTH of CareSync Inc.'s Revised Articles of Incorporation." That article provides as follows:
Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery in the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation[;] (ii) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation's stockholders[;] (iii) any action asserting a claim arising pursuant to any provision of the General Corporation Law, this Restated Certificate[,] or the Bylaws[;] or (iv) any action asserting a claim governed by the internal affairs doctrine ....
Following a hearing, the trial court denied the Officers and Directors' motion, concluding that the right to consent to suit being brought in a venue other than Delaware was not a "general corporate operation" but rather was part of the rights assigned to Luzinski.
On appeal, the Officers and Directors challenge this ruling, first arguing that Luzinski did not have the authority to file this lawsuit, let alone consent to jurisdiction outside of Delaware, because doing so amounted to the performance of the general corporate operations of CareSync and his authority to perform general corporate operations expired as of December 6, 2018, per order of the court. While we agree that Luzinski did not have authority to conduct the business of CareSync after December 5, 2018, we cannot agree that the filing of the instant lawsuit fell under the general corporate operations of CareSync.
Section 727.108(1) - (13) sets forth the duties of an assignee. Subsection (4) states that the assignee shall "[c]onduct the business of the assignor for a limited period not to exceed 45 calendar days, if doing so is in the best interest of the estate." Subsection (4) also states that the court may extend the assignee's authorization to conduct the business of the assignor. Here, the court did just that in an order that extended Luzinski's authority to conduct the business operations of CareSync through December 5, 2018.
But section 727.108(4) lists only one of the duties of the assignee; the remainder of the statute enumerates twelve others. Specifically, subsection (1) states that "[t]he assignee shall ... [c]ollect and reduce to money the assets of the estate, whether by suit in any court of competent jurisdiction or by public or private sale." Luzinski's filing of the instant breach of fiduciary duty suit does not fall under his subsection (4) duty of conducting the general business operations of CareSync but rather is part of Luzinski's subsection (1) duty to collect the assets of CareSync and reduce them to money.
Furthermore, the time limit applied to the duty to conduct the business of the assignor in subsection (4) of the statute—seemingly to prevent the assignee from continuing to operate the defunct corporation as a going concern—is not found in any other subsection of section 727.108. By its plain language, section 727.108(1) does not limit the time within which an assignee must collect and reduce to money the assets of the assignor. Accordingly, at the time Luzinski filed the complaint, he was acting within his statutory authority to bring suit to recover the assets of the estate.
The Officers and Directors also argue that even if Luzinski had the authority to bring the suit, the provision naming Delaware as the choice of forum in the CareSync's Twelfth Article of Incorporation is a mandatory provision that precludes him from filing this suit in Hillsborough County. Again, we must disagree. " 'Generally, a forum selection clause is mandatory where the plain language used by the parties indicates "exclusivity.' " Absent words of exclusivity, a forum selection clause will be deemed permissive." Michaluk v. Credorax (USA), Inc., 164 So. 3d 719, 722 (Fla. 3d DCA 2015) (citation omitted) (quoting Espresso Disposition Corp. 1 v. Santana Sales & Mktg. Grp., 105 So. 3d 592, 595 (Fla. 3d DCA 2013) ). The provision at issue here states that Delaware is the forum of choice "[u]nless the Corporation consents in writing to the selection of an alternative forum." This qualifying language refutes the Officers and Directors' claim that the plain language of the provision designates Delaware as the exclusive forum and renders the provision permissive rather than mandatory. And "[p]ermissive clauses constitute nothing more than a consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in any other forum." Id. (quoting Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So. 2d 273, 274-75 (Fla. 1987) ).
Finally, we note that for purposes of the instant lawsuit, as the assignee, Luzinski stands in the shoes of CareSync, the assignor. See Akin Bay Co. v. Von Kahle, 180 So. 3d 1180, 1182 (Fla. 3d DCA 2015) ("The assignee is ... charged with the obligation to '[c]ollect and reduce to money the assets of the estate, whether by suit in any court of competent jurisdiction, or by public or private sale ....' § 727.108(1). The assignee stands in the shoes of the assignor for this purpose." (alteration in original) (emphasis added) (footnote omitted)). Thus, in bringing suit against the Officers and Directors for breach of fiduciary duty, Luzinski assumed all the rights CareSync would have had as the plaintiff in that suit—including the right to consent to a forum other than Delaware as a litigation strategy.
The question then becomes whether the mere act of filing the written complaint alleging venue is proper in Hillsborough County satisfies the requirement of the provision that consent "to the selection of an alternative forum" be in writing. We conclude that by filing a written complaint in Hillsborough County alleging venue is proper in Hillsborough County, Luzinski has complied with the dictates of the provision. Accordingly, we affirm.
Affirmed.
LaROSE and SMITH, JJ., Concur.