# Third District Court of Appeal

State of Florida

Opinion filed March 8, 2017.

Not final until disposition of timely filed motion for rehearing.

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No. 3D16-1292

Lower Tribunal No. 15-19999

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### Asperbras Tecnologia Industrial, e Agronegócios Ltda

., etc., et al.

, Appellants,

vs.



### Good Hope Development, LLC

,

Appellee.

An appeal from a non-final order from the Circuit Court for Miami-Dade

County, Jacqueline Hogan Scola

, Judge.

Baker & McKenzie, LLP and Daniela Fonseca Puggina and Carolina Neves,

for appellants.

Akerman LLP and Robert I. Chaskes and Paul L. Kobak, for appellee.

Before SUAREZ, C.J., and LAGOA and SALTER, JJ.

SUAREZ, C.J.

Asperbras Tecnologia Industrial e Agronegócios LTDA, and Jose Roberto

Colnaghi, Asperbras’ CEO, [collectively, Asperbras] appeal from a non-final orderdenying their motion to quash and dismiss Good Hope Development, LLC’s [Good

Hope] Amended Complaint for lack of personal jurisdiction, improper venue, and

forum non conveniens. We affirm.

Appellants are a Brazilian corporation and citizen, respectively. Good Hope

LLC, Appellee, is a Florida LLC owned by two Brazilian members, with its

principal place of business in Miami-Dade County. In July 2011, Asperbras

contracted with Good Hope to structure, negotiate and obtain a line of financial

credit to be used in contracts Asperbras hoped to enter with the Republic of

Guinea. The agreement had a carve-out clause that excluded any financing with

Credit Suisse. Good Hope was to get a finder’s fee. The agreement between

Asperbras and Good Hope provided for arbitration and venue in Brazil.

Good Hope subcontracted the task of finding the financial credit line to

Netplan Servicios Empresarias LTDA [Netplan], a Brazilian corporation. Good

Hope agreed to pay Netplan one-half of the finder’s fee that Good Hope expected

to earn from its contract with Asperbras. Netplan then allegedly approached

Asperbras, without Good Hope’s knowledge or authorization, to seek an advance

on the finder’s fee it would get from the Asperbras/Good Hope contract.

Asperbras agreed to advance Netplan monies and separately contracted with

Netplan to secure a letter of credit (as opposed to a line of financing) from Credit

Suisse. Netplan obtained a letter of credit from Credit Suisse in favor of

2Asperbras, and Asperbras paid Netplan a finder’s fee. Subsequent questions from

the bank resulted in Asperbras cancelling the Asperbras/Good Hope contract and

refusing to pay Good Hope for its services. Good Hope then sued Asperbras for

breach of contract. The matter was arbitrated in Brazil. The Brazilian arbitrators

determined that Asperbras did not obstruct the Good Hope/Netplan arrangement,

concluding that a letter of credit was not the same as a line of financing, and that

Credit Suisse was carved out of the Asperbras/Good Hope contract.

In 2015, Good Hope filed a Complaint in Miami-Dade circuit court alleging

Asperbras’ tortious interference with the Good Hope/Netplan subcontract.

Asperbras removed the case to federal court. The federal court remanded the case

to the state circuit court, finding it did not have subject matter jurisdiction under

the Federal Arbitration Act as Good Hope’s damages were not measured by its

contract with Asperbras, but by Asperbras’ alleged interference with Good Hope’s

contractual relationship with Netplan. 1 Once back in state court, Asperbras filed a

1 In its remand order, the Federal Court noted that,

Defendants’ [Asperbras’] alleged misconduct

– i.e., [their]

interference with the relationship between [Good Hope] and Netplan

–

is extra-contractual. This conclusion is supported by the fact that the

damages [Good Hope] is currently seeking are completely different

from the damages it would be entitled to under a breach of contract

theory. If [Good Hope’s] claims were inextricably related to a breach

of its contract with Asperbras, then the measure of its damages would

be determined by the contract itself. Here, [Good Hope’s] damages

will not be measured by reference to its contract with Asperbras, but

instead by the extent of damage it suffered from Defendants’

3motion to dismiss arguing that service of process was invalid because Good Hope

was required to serve Asperbras by letters rogatory and had not done so. At a

special May 12, 2016 hearing, the trial court took evidence and heard both parties’

arguments and a) denied Asperbras’ motion to quash service of process; b) denied

Asperbras’ motion to dismiss based on res judicata; c) denied Asperbras’ motion to

dismiss for improper venue; d) allowed the parties to engage in further discovery

relating to forum non conveniens and to renew any related objections once

discovery was concluded; e) denied Asperbras’ motion to dismiss Good Hope’s

Amended Complaint for failure to state a claim, and ordered Good Hope to state a

damage claim with greater particularity. Asperbras appeals.

We review de novo the trial court’s order on the motion to quash service of

process and find that service was legally sufficient under both Florida and

Brazilian law. 2 Good Hope presented evidence that it had engaged a Brazilian

attorney in good standing who personally served the Appellants in Brazil, and that

such service was valid service in Brazil. Appellants do not dispute that the returns

of this service comply with Florida law and are regular on their face and valid.

[Asperbras] interference with its contractual and business relationship

with Netplan. Consequently, the Court finds that the “subject matter

of this action

. . . [does not] relate [] to an arbitration agreement.

2 Brazil is a signatory to the Inter-American Service Convention, which replaces

the traditional letters rogatory process and provides a mechanism for service of

documents by a foreign central authority.

4Appellants provide no clear and convincing evidence otherwise. Therefore, the

form of the return of service is not an issue. As to the service, Florida courts may

accept any particular method of service, so long as it does not contradict any selfexecuting international agreement or implementing statutes, or as long as such

method is not expressly prohibited by the law of the foreign state. See AlvaradoFernandez v. Mazoff

, 151 So. 3d 8, 14 (Fla. 4th DCA 2014) and cases cited

therein. See also Paiz v. Castellanos

, No. 06-22046-CIV, 2006 WL 2578807 (S.D.

Fla. Aug. 28, 2006) (finding the Inter-American Convention's provisions regarding

service of process neither mandatory nor exclusive), and cases cited therein;

Skanchy v. Calcados Ortope SA

, 952 P.2d 1071 (Utah 1998) (same). In this case,

service on Asperbras by the Brazilian attorney does not contradict any selfexecuting international agreement or implementing statute between the United

States and Brazil. Evidence was presented that service was made in Brazil by an

attorney admitted and in good standing to practice in Brazil and that such service

met the requirement for valid service of process in Brazil. Accordingly, we affirm

the trial court’s conclusion that service of process upon Asperbras in Brazil by a

Brazilian attorney was lawful and effective to the extent it complied with the

requirements of Florida law and gave Asperbras due notice of the proceedings.

Venue is proper in Miami-Dade County. As the record reflects, Good

Hope’s claims for tortious interference relate solely to the contract between Good

5Hope and Netplan, an entirely separate entity that falls outside the scope of the

Asperbras/Good Hope contract. Thus, Good Hope’s tort claims are not governed

by the Asperbras/Good Hope contract or its arbitration and venue provisions, and

we thus affirm the denial of Asperbras’ motion to dismiss based on improper

venue.

In denying Asperbras’ motion to dismiss based on forum non conveniens,

the trial court recognized that this issue was not yet ripe for determination. The

trial court correctly provided that “the parties may engage in discovery relating to

forum non conveniens issues and Defendants may renew their forum non

conveniens objections after such

. . . discovery is completed.” We affirm the trial

court’s determination regarding the forum non conveniens issue and make no

determination on the merits of that issue.

Accordingly, we affirm the order below denying Asperbras’ motion to quash

service and motion to dismiss the amended complaint, and remand for further

proceedings.

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