John D. Sarai v. Merchant Capital Group LLC, Etc.

• Court: District Court of Appeal of Florida
• Decided: April 15, 2026
• Docket: 3D2025-0980
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 15, 2026. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D25-0980 Lower Tribunal No. 24-126850-CC-23 ________________

John D. Sarai, Appellant,

vs.

Merchant Capital Group LLC, etc, Appellee.

An Appeal from a non-final order from the County Court for Miami- Dade County, Patricia Marino Pedraza, Judge.

John D. Sarai, in proper person.

Henderson, Franklin, Starnes & Holt, P.A., and Shannon M. Puopolo, and Brendan J. Shearman (Ft. Myers), for appellee.

Before LINDSEY, MILLER and BOKOR, JJ.

LINDSEY, J. John D. Sarai, defendant below, appeals a non-final order in favor

Appellee, Merchant Capital Group, LLC, doing business as Greenbox

Capital (“Greenbox”), plaintiff below, denying Sarai’s motion to dismiss

Greenbox’s complaint for lack of personal jurisdiction. 1 Greenbox failed to

allege sufficient jurisdictional facts in its complaint to bring its action within

the ambit of Florida’s long-arm statute. Further, Sarai’s unrebutted affidavit

attached to the motion to dismiss shifted to Greenbox the burden of proving,

by affidavit or other sworn proof, a valid basis for personal jurisdiction over

Sarai. Greenbox failed to do so. Accordingly, we reverse and remand with

directions to dismiss the complaint for lack of personal jurisdiction.

I. PROCEDURAL BACKGROUND

Sarai—as agent for Shield Law Group, APLC (“Shield”) and a

Guarantor—entered into a purchase and sale agreement (the “Agreement”)

with Greenbox. Under Exhibit A of the Agreement (the “ACH Authorization”),

Greenbox established all terms and procedures to initiate and execute

payments. Greenbox funded Shield by transferring a lump sum by electronic

ACH transfer directly into Shield’s California bank account. The Agreement

1 We have Jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i).

2 contains a Florida choice of law and venue provision. The Agreement was

silent as to payment to Greenbox, though Greenbox is located in Florida.

Greenbox filed a complaint against Shield and Sarai, as guarantor,

jointly and severally in Miami, Florida. The complaint alleged a breach of

contract against Shield. It then alleged a personal guarantee cause of action

against Sarai, asserting that Sarai guaranteed payments of all amounts.

Sarai moved to dismiss the complaint. The motion to dismiss argued

lack of personal jurisdiction because Greenbox failed to allege any

independent and sufficient jurisdictional facts to bring the action within the

ambit of Florida’s long-arm statute, despite the Florida choice of law and

venue provision contained in the Agreement. In support, Sarai attached an

affidavit. The affidavit alleged that Greenbox failed to plead allegations to

establish personal jurisdiction over him, and that it would be impossible to

plead any such allegations because:

- Sarai is not a resident of Florida;

- Sarai has no physical presence, business operations, assets, property, or other connections to the state of Florida;

- All performance in the agreement was in California, and nothing was required to be performed in Florida;

- All professional activities were exclusively within California;

- No business interests, operations, properties, or other minimum contacts exist in Florida;

3 - The Agreement was executed electronically from California;

- Greenbox commenced automatic weekly withdrawals from Shield’s California bank account;

- All activities related to the execution and performance of the Agreement occurred exclusively within California;

- Greenbox is a California-registered LLC and California-licensed lender and broker;

- Greenbox actively purchases California-based leads and actively solicits small businesses residing in California;

- Greenbox asserted a security interest in all his property by executing a UCC financing statement in California only.

Greenbox filed no counter-affidavit or other document or evidence

contesting Sarai’s allegations. A hearing was held, after which the trial court

entered a written order denying the motion to dismiss. No transcript was

taken of the hearing. The trial court found Sarai satisfied section

48.193(1)(a)(7), Florida Statutes (2025) of Florida’s long-arm statute

because the Agreement’s choice of law provision provided for Florida law

and payments were due to Greenbox, which is located in Florida. Sarai filed

a motion for rehearing and reconsideration properly preserving his

arguments for appeal. 2 This timely appeal followed.

2 See Kiernan v. ReviveMD305, LLC, 412 So. 3d 156, 158 n.3 (Fla. 3d DCA 2025) (“Where an error appears for the first time on the face of the order, a

4 Sarai asserts that Greenbox’s complaint did not contain sufficient

allegations to establish personal jurisdiction; and that, given the unrebutted

allegations in Rollet’s affidavit, the trial court erred in denying the motion to

dismiss. Greenbox asserts that it established personal jurisdiction under

Florida’s long-arm statute because payment is presumed due in Florida and

Sarai is ultimately responsible for payment; and a counter-affidavit was not

required because Sarai’s affidavit failed to refute the facts supporting

jurisdiction.

II. ANALYSIS

We generally review a trial court’s ruling on a motion to dismiss for lack

of personal jurisdiction de novo. Promenade Charters V.I., Ltd. v. Caribbean

Insurers Marine Ltd., 388 So. 3d 200, 202 (Fla. 3d DCA 2024), reh’g denied

(June 12, 2024). The facts are to be derived “from the affidavits in support

of the motion to dismiss, and the transcripts and records submitted in

opposition to the motion to dismiss.” Neal, Gerber & Eisenberg LLP v. Lamb-

Ferrara, 388 So. 3d 1112, 1117 (Fla. 3d DCA 2024).

litigant must move for rehearing, to vacate, or for relief from judgment to bring the error to the attention of the lower tribunal.”); see also Fla. R. Civ. P. 1.530 (“To preserve for appeal a challenge to the failure of the trial court to make required findings of fact in the final judgment, a party must raise that issue in a motion for rehearing under this rule.”).

5 Our analysis begins with Florida’s long-arm jurisdiction statute, section

48.193(1)(a)7, Florida Statutes (2025), which provides, in pertinent part:

(1)(a) 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 and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts:

...

7. Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

The Florida Supreme Court has described the two-step process

required to be applied by a trial court in its determination of personal

jurisdiction over a particular defendant:

First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements.

Borden v. East–Eur., Ins. Co., 921 So. 2d 587, 592 (Fla. 2006) (quoting

Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989)).

As this court has recognized:

There is a specific procedure set out in Venetian Salami for determining the sufficiency of allegations asserting jurisdiction under the long-arm statute. A

6 defendant wishing to contest jurisdiction must file a legally sufficient affidavit in support of his position. “The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.”

Tobacco Merchants Ass’n of U.S. v. Broin, 657 So. 2d 939, 941 (Fla. 3d DCA

1995) (quoting Venetian Salami, 554 So. 2d at 502).

Moreover, once this burden has shifted, “[i]f no such sworn proof is

forthcoming from the plaintiff as to the basis for jurisdiction, the trial court

must grant the defendant’s motion to dismiss.” Id. (emphasis added); see

also Rollet v. de Bizemont, 159 So. 3d 351, 356 (Fla. 3d DCA 2015). As we

have noted, it is not the mere filing of the affidavit, but the legal sufficiency of

its averments that will cause the burden to shift to plaintiff:

The defendant’s affidavit must meet all requirements for legal sufficiency and must also refute all jurisdictional allegations in the plaintiff’s complaint. But once this has been done, the burden shifts to plaintiff to refute the legally sufficient affidavit.

Rollet, 159 So. 3d at 356 n.7 (quoting Broin, 657 So. 2d at 941 n. 4).

Here, Greenbox contends that although the Agreement was silent on

where performance was due, Florida courts apply a longstanding

presumption that payment is due where the payee resides. Greenbox

resides in Florida, thus it contends the failure to perform put Sarai well within

reach of the long-arm statute.

7 In Williamson v. Prime Sports Mktg., LLC, we found “while it is true that

there is a legal presumption that debt is to be paid at the creditor’s place of

business—even in the absence of an agreement to do so” this place-of-

payment presumption does not apply when “the allegations in the Complaint

say nothing about this.” 314 So. 3d 480, 484 (Fla. 3d DCA 2020) (emphasis

omitted). That is precisely the case here.

Indeed, the complaint’s jurisdictional and factual allegations, which say

nothing about jurisdiction or Florida’s long-arm statute, are silent as to

whether the breaching conduct occurred in Florida or whether performance

was required in Florida. Moreover, the Agreement itself does not require any

acts to be performed in Florida. In short, the allegations in Greenbox’s

complaint are silent about any breach of contract for failure to pay a debt in

Florida. In Williamson, we found on similar facts that failure to do so results

in dismissal of the complaint for insufficient jurisdictional allegations. See id.

at 486.

Moreover, because no allegations in Greenbox’s complaint directly

state the court has jurisdiction over Sarai, the Agreement’s Florida choice of

8 law and venue provision alone is insufficient to subject Sarai, a nonresident

defendant, to personal jurisdiction. See id. at 483.3

Further, it is undisputed that Sarai filed an affidavit contesting the

allegations of personal jurisdiction set forth in Greenbox’s complaint.

Greenbox failed to file an affidavit or provide any sworn proof in response.

Thus, the dipositive question is whether Sarai’s affidavit was legally sufficient

to satisfy Sarai’s threshold burden, thus shifting the burden to Greenbox of

proving, by affidavit or other sworn proof, a valid basis for personal

jurisdiction over Sarai. It is.

Greenbox argues the affidavit was legally insufficient, and thus not

requiring a counter-affidavit, because it failed to rebut all jurisdictional

allegations in the complaint. Particularly, Greenbox argues Sarai did not

3 To satisfy Florida’s statutory requirements for conferring personal jurisdiction solely by contract, a contract must: (1) include a choice of law provision designating Florida law as the governing law; (2) include a provision whereby the non-resident agrees to submit to the jurisdiction of the courts of Florida; (3) involve consideration of not less than $250,000; (4) not violate the United States Constitution; and (5) either bear a substantial or reasonable relation to Florida or have at least one of the parties be a resident of Florida or incorporated under its laws. See § 48.193(1)(a)(9), Fla. Stat.; § 685.101, Fla. Stat. (2025); § 685.102, Fla. Stat. (2025). But Greenbox concedes it did not plead jurisdiction by contract under section 685.102. Regardless, it cannot establish jurisdiction in that manner because the contract does not involve consideration of not less than $250,000.

9 refute the allegation supporting the place-of-payment presumption: the place

of payment was silent but was due to Greenbox being located in Florida.

To the contrary, the following facts in the unrebutted affidavit and the

Agreement, if taken as true, would defeat the place-of-payment presumption:

- All activities related to the execution and performance of the Agreement occurred exclusively within California.

- No aspect of the Agreement’s execution or performance necessitated involvement with or presence in Florida.

- The Agreement directs payment debited from Shield’s California checking account.

See Astro Aluminum Treating Co. v. Inter Contal, Inc., 296 So. 3d 462, 466

(Fla. 4th DCA 2020) (finding no jurisdiction where payment debited from

California account and no Florida performance was required); Promenade,

388 So. 3d at 203–04 (finding no jurisdiction under section 48.193(1)(a)(7)

where insurance policy was “silent as to the place of payment”); see also

Telesur v. DOT (SR), Inc., 100 So. 3d 1232, 1236 (Fla. 2d DCA 2012)

(finding choice of law and forum provision “designating Florida as the forum

cannot serve as the sole basis for asserting in personam jurisdiction over an

objecting, non-resident defendant”).4

4 Sarai’s affidavit also alleges that he is a California resident; has no Florida business interests, operations, or contacts; executed the agreement in Los Angeles; and that performance occurred exclusively in California. We have found such allegations legally sufficient to shift burden to plaintiff to present

10 Accordingly, Sarai’s affidavit was legally sufficient to satisfy his

threshold burden, thus shifting to Greenbox the burden of proving, by

affidavit or other sworn proof, a valid basis for personal jurisdiction over

Sarai. Greenbox’s failure to do so is fatal and requires dismissal of the

complaint for lack of personal jurisdiction. See Rollet, 159 So. 3d at 356–57

(reversing and remanding with instructions to grant motion to dismiss

complaint for lack of personal jurisdiction where plaintiff failed to rebut

defendant’s legally sufficient affidavit). This is so despite the complaint

attaching the Florida choice of law and venue provision waiving jurisdictional

objections. See Holton v. Prosperity Bank of St. Augustine, 602 So. 2d 659,

660 (Fla. 5th DCA 1992) (finding burden of showing jurisdiction not met

where plaintiff did not rebut defendant’s affidavit and such burden not

satisfied by showing jurisdiction solely through a venue clause waiving

jurisdictional challenges attached to the complaint).

That said, Greenbox contends we should affirm because we do not

have a transcript of the motion to dismiss hearing, citing Applegate v. Barnett

Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979). This argument also

counter-affidavit. See, e.g., Frantin v. MVS Media Grp., LLC, 390 So. 3d 75, 78 (Fla. 3d DCA 2023) (affidavit stating residence in New York, does not conduct business, own any real property, and did not commit act within Florida found sufficient to shift burden).

11 misses the mark. We held on similar facts in Rollet that the absence of a

counter-affidavit leaves no disputed issues of fact for the trial court to resolve,

and thus “our de novo review is unimpeded by the absence of the hearing

transcript.” 159 So. 3d at 357. Accordingly, we are constrained to reverse

and remand with instructions to dismiss the complaint for lack of personal

III. CONCLUSION

In conclusion, Greenbox failed to allege sufficient jurisdictional facts in

its complaint and failed to provide a counter-affidavit, or other sworn proof,

in response to Sarai’s affidavit in support of his motion to dismiss.

Accordingly, we reverse and remand the denial of Sarai’s motion to dismiss

and remand with directions to dismiss Greenbox’s complaint for lack of

personal jurisdiction.

Reversed and remanded with instructions.