DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

KATE NGUYEN,

Appellant/Cross-Appellee,

v.

PERSPECTIVE GLOBAL, LLC,

Appellee/Cross-Appellant, 

and

JOSHUA PAUL HOOKS, MARK RIGGINS, and JOHN M. RIGGINS,

Appellees.

No. 2D2023-0487

June 7, 2024

Appeal from the Circuit Court for Hillsborough County; Emily Peacock, 

Judge.

R. Jeffrey Stull and Richard E. Stull of R. Jeffrey Stull, P.A., Tampa, for 

Appellant/Cross-Appellee.

Scott J. Edwards of Scott J. Edwards, P.A., Boca Raton; and Thomas S. 

Dolney of Dolney Law, PLLC, Orlando, for Appellee/Cross-Appellant, 

Perspective Global, LLC.

No appearance for remaining Appellees.

SMITH, Judge.
2

Kate Nguyen challenges the trial court's order granting in part

Perspective Global LLC's motion to dismiss Counts II, III, and VI of Ms. 

Nguyen's complaint alleging fraud against Perspective, fraud in the "offer, 

sale, or purchase of [an] investment or security" under section 517.301, 

Florida Statutes (2020), and sale of an unregistered security under 

section 517.07, part of Florida's Blue Sky Law, against Perspective and 

its agents. Perspective cross-appeals challenging that same order, which 

also denied Perspective's motion for attorneys' fees and costs brought 

under an operating agreement between the parties. Because Ms. Nguyen

sufficiently pled vicarious liability against Perspective for the acts of 

Perspective's agents, and because this matter does not arise out of an 

assertion of rights under the operating agreement, we reverse that 

portion of the order granting the motion to dismiss as to Counts II and III 

against Perspective and affirm the denial of Perspective's motion for 

attorneys' fees and costs.

I.

Ms. Nguyen's Second Amended Complaint alleges, among other 

causes of action, fraud against Perspective arising out of the bad acts of 

its agents, Joshua Paul Hooks and John and Mark Riggins (the 

Rigginses), in Count II, and fraud in the "offer, sale, or purchase of any 

investment or security," under section 517.301 against Perspective, 

Hooks, and the Rigginses in Count III.

1 

1 The Second Amended Complaint also alleges breach of fiduciary 

duty for violating sections 620.8201(1), 620.8305, 620.8306, and 

620.8307, Florida Statutes (2020) (the Revised Uniform Partnership Act),

civil conspiracy, unjust enrichment, and breach of contract against 

Hooks and the Rigginses. The court dismissed the Revised Uniform 

Partnership Act count against the Rigginses, a ruling which Ms. Nguyen 

does not challenge on appeal. The court did not dismiss the other 
3

The Second Amended Complaint recounts that sometime prior to 

December 2019, Perspective's agents2 formed the company to lease a 

hotel located in Nicaragua, which they intended to convert into a 

rehabilitation facility. Ms. Nguyen met Hooks in November 2019 in Palm 

Harbor at a marketing event, and in December 2019, Hooks and John 

Riggins presented her with a prospectus to invest in Perspective. Ms. 

Nguyen alleges that on January 23, 2020, she agreed to invest $75,000 

in Perspective, and on January 31, 2020, she entered into an operating 

agreement which made her a managing member with ten percent 

ownership interest in Perspective. Ms. Nguyen wired the $75,000 to 

Perspective's bank account on February 3, 2020. 

Ms. Nguyen alleges that Perspective's agents made 

misrepresentations of material fact detailed in the prospectus, which 

falsely portrayed the profitability of Perspective, which she relied upon in 

entering into the operating agreement and remitting the $75,000 

consideration. She alleges that prior to her signing the operating 

agreement, Perspective's agents falsely represented that Mark Riggins 

contributed $100,000 in capital to Perspective. Ms. Nguyen also 

counts against Hooks and the Rigginses, and those rulings are also not 

challenged here. 

2 Ms. Nguyen alleges that after Perspective was initially formed, 

Hooks and the Rigginses together owned the entirety of Perspective's 

membership interests. Pursuant to the operating agreement signed in 

January 2020, Hooks, the Rigginses, and Ms. Nguyen were members and 

managers of Perspective, which per the operating agreement was a 

"manager-managed" LLC. Hooks and the Rigginses were therefore agents 

of Perspective. See § 605.04074(2)(b), Fla. Stat. (2020) (stating that 

"each manager is an agent of the limited liability company for the 

purpose of its activities and affairs," subject to exceptions not applicable 

here). 
4

contends that Perspective's agents then withdrew tens of thousands of 

dollars from Perspective's bank account for their own personal use.

Regarding her fraud claim against Perspective, Ms. Nguyen alleges

that the fraudulent conduct of Perspective's agents, "which was in the 

ordinary course of the business of [Perspective,] is also attributable to 

[Perspective]." Regarding her claim for fraud in the sale of a security or 

investment, Ms. Nguyen alleges that the information contained in the

prospectus led her to believe that her stake in Perspective would be 

profitable, a fact which was "essential to her decision to send $75,000 to 

[Perspective]." In other words, but for the documents presented by 

Perspective agents, she would not have entered into the operating 

agreement.

Perspective filed a motion to dismiss, arguing that because Ms. 

Nguyen only alleged statements made by Perspective agents, but not 

Perspective itself, she failed to state a cause of action in both Counts II 

and III against Perspective. Additionally, Perspective argued that 

because Ms. Nguyen had sent the $75,000 to Perspective after she signed 

the operating agreement, she had not purchased a security but rather 

had contributed to a company of which she was a member, and therefore 

had failed to plead fraud in the sale of a security or sale of an 

unregistered security in Counts III and VI. The trial court agreed and

dismissed Count II for failure "to adequately allege bad acts by 

[Perspective] to support a fraud claim against [Perspective]." The court 

also dismissed Counts III and VI against Perspective, finding that, based 

upon the allegations, Ms. Nguyen "was not sold a 'security' or solicited 

for an 'investment' " because she was already a member/manager at the 

time she contributed the $75,000, which the trial court classified as a 
5

capital contribution.

3 In that same order dismissing Counts II, III, and 

VI, the trial court denied Perspective's motion for legal fees and costs. 

This appeal followed. 

II.

Our review of an order granting a motion to dismiss is de novo. 

Brooke v. Shumaker, Loop, & Kendrick, LLP, 828 So. 2d 1078, 1080 (Fla. 

2d DCA 2002) (citing Value Rent-A-Car, Inc. v. Grace, 794 So. 2d 619, 620

(Fla. 2d DCA 2001)). "In ruling on a motion to dismiss, the trial court 

must confine itself to the four corners of the complaint, accept the 

allegations of the complaint as true, and construe the allegations in the 

light most favorable to the plaintiff." Id. (citing Hosp. Constructors Ltd. v. 

Lefor, 749 So. 2d 546, 547 (Fla. 2d DCA 2000)). 

Ms. Nguyen argues that the trial court erred in dismissing her 

fraud claims against Perspective because she sufficiently alleged that the 

fraudulent statements made by Perspective's agents were made in the 

ordinary course of Perspective's business, and thus, were attributable to 

Perspective under the theory of vicarious liability. We agree.

"A corporation can, of course, act only through its agents." Houri v. 

Boaziz, 196 So. 3d 383, 391 (Fla. 3d DCA 2016). "As a general rule, a 

principal may be held liable for the acts of its agent that are within the 

course and scope of the agency." Roessler v. Novak, 858 So. 2d 1158, 

1161 (Fla. 2d DCA 2003) (citing Jaar v. Univ. of Miami, 474 So. 2d 239, 

245 (Fla 3d DCA 1985)). Even "[w]here it is shown, without dispute, that 

a corporate officer's fraud intended to and did benefit the corporation, to 

the detriment of outsiders, the fraud is imputed to the corporation." 

3 We need not reach the issue of whether Ms. Nguyen was sold a 

security or solicited for an investment, nor do we comment on whether 

these claims were sufficiently pleaded.
6

Seidman & Seidman v. Gee, 625 So. 2d 1, 3 (Fla. 3d DCA 1992); see also,

e.g., Mesher v. Combs, 685 So. 2d 1391, 1392 (Fla. 4th DCA 1997) 

(holding that corporate officers who made material misrepresentations in 

the sale of securities were jointly and severally liable, along with their 

corporation under the Florida Securities and Investor Protection Act);

Whigham v. Muehl, 500 So. 2d 1374, 1381 (Fla. 1st DCA 1987) (holding 

corporation liable for fraud where the president, director, and 

shareholder of the corporation negotiated the fraudulent agreement for 

the sale of stock).

Here, Count I for fraud against Perspective alleged that "[t]he 

fraudulent conduct of Hooks, John Riggins and Mark Riggins has caused 

Nguyen to suffer damages, including the loss of her $75,000 payment, 

and their conduct, which was in the ordinary course of the business of 

the LLC, is also attributable to the LLC." Perspective argues that Ms. 

Nguyen failed to preserve this argument because vicarious liability must 

be pleaded as a separate cause of action. That is true generally. See

Gen. Asphalt Co. v. Bob's Barricades, Inc., 22 So. 3d 697, 699 (Fla. 3d 

DCA 2009) ("Florida law is clear that in order to pursue a vicarious 

liability claim, the claimant must specifically plead it as a separate cause 

of action." (citing Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla. 

1990))). "However, a careful reading of the Florida Supreme Court's 

opinion in Goldschmidt makes clear this requirement is inapplicable in 

cases, such as this, involving 'corporate defendants who can commit 

torts only through their servants or agents' or where an 

employee/employer relationship is present." Savoia-Mchugh v. Glass, No. 

19cv2018, 2020 WL 12309558, at *6 (N.D. Fla. Aug. 5, 2020) (quoting 

Goldschmidt, 571 So. 2d at 424 n.3).
7

Ms. Nguyen alleges that Perspective's agents—who wholly 

controlled Perspective—made misrepresentations of material fact that 

she relied upon in wiring the $75,000 payment to Perspective. She 

further alleges that these same individuals, at all relevant times, were 

members of Perspective and made the misrepresentations in the ordinary 

course of Perspective's business. In considering these allegations in the 

light most favorable to Ms. Nguyen, these fraud allegations were 

adequately pleaded with sufficient specificity to state a cause of action 

imposing vicarious liability to Perspective for the fraudulent acts of its 

agents, and therefore, met the threshold to withstand a motion to 

dismiss.4 See Nelson v. Hillsborough County, 189 So. 3d 1037, 1040 (Fla. 

2d DCA 2016) ("In ruling on a motion to dismiss, the trial court must 

confine itself to the four corners of the complaint, accept the allegations 

of the complaint as true, and construe the allegations in the light most 

favorable to the plaintiff." (quoting Brooke, 828 So. 2d at 1080)).

Accordingly, we reverse the trial court's dismissal of Ms. Nguyen's 

fraud claims against Perspective in Count II. 

As to the dismissal of Count III for fraud in the sale of a security or 

solicitation of an investment claim based upon the trial court's reasoning 

that the $75,000 payment occurred after Ms. Nguyen became a 

manager/member, Ms. Nguyen maintains that the two events were part 

of one single, contemporaneous transaction, and therefore the timing of 

her payment is immaterial.

4 The trial court found that Ms. Nguyen sufficiently pleaded all the 

elements of fraud against Hooks and the Rigginses, but it dismissed Ms. 

Nguyen's claim against Perspective because it found that Nguyen failed 

to "adequately allege bad acts" against Perspective. 
8

Section 517.301(1)(a)1 states that it is a violation to "employ any 

device, scheme, or artifice to defraud" when selling "any investment or 

security," even those not required to be registered under chapter 517. 

The purchase of a membership interest in a limited liability company can 

be an investment contract5 under section 517.301. See Silberman v. 

Premier Beauty & Health LLC, No. 20-21984-CIV, 2023 WL 6064820, at 

*6 (S.D. Fla. Aug. 31, 2023), aff'd, 2023 WL 6064520 (S.D. Fla. Sept. 18, 

2023) (holding that "a genuine issue of material fact exists as to whether 

the membership interest sold to [the plaintiffs] constitutes a security in 

the form of an investment contract" under section 517.301).

The timing of Ms. Nguyen's payment is a red herring. Ms. Nguyen 

alleges in her complaint that the benefit of a membership interest in 

Perspective was "essential to her decision to send $75,000" to the 

company's bank account. Although she signed the operating agreement 

a few days before she wired the $75,000 to Perspective, she alleges that 

she wired the money in exchange for the ten percent membership 

5 Under section 517.021(23)(q), the definition of a "security" 

includes an "investment contract," which is an investment in a "common 

enterprise" with the expectation of profits derived from the efforts of 

others. See Rudd v. State, 386 So. 2d 1216, 1219 (Fla. 5th DCA 1980) 

(citing S.E.C. v. W.J. Howey Co., 328 U.S. 293 (1946)). Alleging that 

defendants pooled funds into a common account can establish a claim of 

a "common enterprise," and alleging that an investor did not 

meaningfully participate in the management of a venture or had minimal 

control of the investment's performance can establish an expectation of 

profits on the efforts of others. See Tippens v. Round Island Plantation, 

L.L.C., No. 09-CV-14036, 2009 WL 2365347, at *9-10 (S.D. Fla. July 31, 

2009). Because Ms. Nguyen alleged that she contributed $75,000 to a 

Perspective account that contained other company funds and alleged 

that Perspective's agents represented that they had the skills to 

profitably operate the venture, Nguyen likely pleaded sufficient facts to 

establish that her $75,000 contribution was an "investment contract" 

under chapter 517, although as stated above we do not reach this issue. 
9

interest in the company. Therefore, again considering these allegations 

in the light most favorable to Ms. Nguyen, Count III for fraudulent sale of 

an investment against Perspective was sufficiently pleaded, and we 

reverse the trial court's order dismissing this count. Because the trial 

court dismissed Ms. Nguyen's claim in Count VI of sale of an 

unregistered security based on the same timing reasoning, we also 

reverse the dismissal of that claim against Perspective.

III.

Turning to the cross-appeal, Perspective argues the trial court had 

no discretion to deny its motion for attorneys' fees where the operating 

agreement provides for fees to the prevailing party in an action for the 

enforcement of rights under the agreement. 

The operating agreement states that "[t]he prevailing party shall be 

entitled to receive reasonable legal fees and costs for the enforcement of 

any of its rights hereunder." However, neither Ms. Nguyen nor 

Perspective asserted any rights under the operating agreement in this 

action. Rather, Ms. Nguyen claimed that Perspective and its members 

defrauded her into investing in the company, and Perspective moved to 

dismiss those claims as insufficiently pled. See W.G. Techs., Inc. v. PC 

Franchise, Inc., 814 So. 2d 458, 459 (Fla. 4th DCA 2001) (holding where 

"appellant had not prevailed on its contract claims but only on a claim of 

negligent misrepresentation," the instant action did "not involve the 

enforcement of the agreement" and the appellant was not entitled to an 

award of fees under a provision awarding fees incurred to "to enforce the 

provisions of this Agreement"). The trial court therefore correctly 

determined that Perspective is not entitled to attorneys' fees under the 

operating agreement. 
10

IV.

Based on the foregoing, we reverse the trial court's order dismissing 

Ms. Nguyen's claims of fraud, fraud in the sale of an investment, and 

sale of an unregistered security against Perspective and affirm the trial

court's order insofar as it denied Perspective's request for attorneys' fees. 

Reversed in part; affirmed in part. 

SILBERMAN and BLACK, JJ., Concur.

Opinion subject to revision prior to official publication.