State Office of Atty. Gen. v. Wyndham Intern., Inc.

869 So. 2d 592, 2004 WL 350742
CourtDistrict Court of Appeal of Florida
DecidedFebruary 26, 2004
Docket1D02-4341
StatusPublished
Cited by40 cases

This text of 869 So. 2d 592 (State Office of Atty. Gen. v. Wyndham Intern., Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Office of Atty. Gen. v. Wyndham Intern., Inc., 869 So. 2d 592, 2004 WL 350742 (Fla. Ct. App. 2004).

Opinion

869 So.2d 592 (2004)

STATE of Florida, OFFICE OF the ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, Appellant,
v.
WYNDHAM INTERNATIONAL, INC., et al., Appellees.

No. 1D02-4341.

District Court of Appeal of Florida, First District.

February 26, 2004.

*594 Charlie Crist, Attorney General; George S. Lemieux, Deputy Attorney General; Tina Furlow, Assistant Attorney General; John Mark Kraus, Assistant Attorney General, Tallahassee, for Appellant.

Katherine A. Bacal, Esq. of Baker & McKenzie, San Diego; Jerome W. Hoffman, Esq. and Susan L. Kelsey, Esq. of Holland & Knight LLP, Tallahassee, for Appellees.

ON MOTION FOR REHEARING, CLARIFICATION, REHEARING EN BANC, AND CERTIFICATION.

LEWIS, J.

We deny the motion for rehearing, rehearing en banc, and certification filed by appellees McCleave and Wagoner. We grant the motion for clarification, withdraw our opinion filed on December 31, 2003, and substitute the following opinion in its place.

The Office of the Attorney General of the State of Florida sued two corporations, Wyndham International, Inc. ("Wyndham"), and Patriot American Hospitality, Inc. ("Patriot"), and four Wyndham employees, Theodore Teng, William McCleave, Laurie Leh (formerly Holm), and Jeff Wagoner ("individual appellees") for alleged violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), sections 501.201-.213, Florida Statutes (2001). The individual appellees moved to dismiss the suit for lack of personal jurisdiction, among other grounds, raising the corporate shield doctrine and asserting a lack of sufficient contacts with Florida to allow for the exercise of personal jurisdiction over them. The trial court determined that it lacked personal jurisdiction over the individual appellees and entered an order granting their motion to dismiss with prejudice. The trial court dismissed Teng on the additional ground that the amended complaint failed to state a cause of action against him.[1] Concluding that appellees McCleave and Wagoner are subject to jurisdiction in Florida, we reverse the trial court's order as to these appellees and remand for further proceedings. We otherwise affirm the order as to appellees Teng and Leh.

The amended complaint alleged that Wyndham and Patriot, a subsidiary of Wyndham, owned and operated numerous hotels in Florida and that the corporations and the individual appellees had violated FDUTPA. According to the Attorney General, the basis of this allegation was an energy surcharge of $2.50 to $3.00 per night, in addition to the regular room rate, which Wyndham instituted at its hotels and properties, including those in Florida, beginning in March 2001 and continuing *595 through December 2001. The amended complaint further alleged that the surcharges had not been disclosed to consumers when they made their reservations or entered into contracts for certain room rates. The surcharge was not disclosed to guests until they checked in or, in some cases, until they checked out and the charges appeared on their final bills. While the surcharge was removed for some guests who protested the fee, in other instances, the surcharge was not removed from guests' bills. According to the amended complaint, one of Wyndham's Florida properties entered into a contract with the Florida Department of State Records Management Services to provide rooms for a conference to be held by the Department of State. This contract did not disclose that the rooms contracted for would be charged an additional $2.75 energy surcharge. The guests' bills, which included the contracted rate and the undisclosed surcharge, were then submitted to various state government agencies for payment.

At all times pertinent to the lawsuit, Teng was the chief operating officer and executive vice-president of Wyndham, Wagoner was the senior vice-president of hotel operations at Wyndham, McCleave was the vice-president of engineering at Wyndham, and Leh was the regional director of operations for the eastern region at Summerfield Suites by Wyndham. With respect to each of the individual appellees, the amended complaint alleged that each had "directly participated in the deceptive acts and practices alleged ... and/or directed or controlled the deceptive or unfair practices and policies ... or had authority to control them, and had actual or constructive knowledge of the acts and practices complained of...." It more specifically alleged that Wagoner and McCleave directed Wyndham's hotels to begin charging the energy surcharge of $2.50 per room per night, which was over and above the cost represented to consumers at the time they made their reservations. Leh was also alleged to have directed all Summerfield properties under her control to apply the energy surcharge immediately. The amended complaint was absent any specific allegations as to what, if any, wrongful acts Teng committed.

In support of their motion to dismiss on jurisdictional grounds, the individual appellees each submitted affidavits stating that their actions relevant to this lawsuit were undertaken in their capacity as corporate employees, that none of the individual appellees ever charged or collected any energy surcharges, that none of them were residents of Florida, and that they had no contacts with Florida whatsoever outside of the course and scope of their employment with Wyndham. Leh also averred that she did not have the authority to develop or implement a policy that required hotels within her region to begin charging energy surcharges.[2] In response, the Attorney General filed the affidavits of two of its employees with the trial court. The employees attached as exhibits to their affidavits copies of emails sent to Wyndham's hotels in Florida by appellees McCleave, Leh, and Wagoner regarding the development and imposition of the surcharge.

The emails showed that the energy surcharge had first been initiated by Wagoner in an attempt to combat the energy crisis in California. Wagoner then sent an email to McCleave, asking him to devise plans to "roll out the energy surcharge in several more cities" and requesting that McCleave "take the lead on this." In implementing the plan in Florida, Wagoner emailed several *596 general managers, including one in Florida, informing them that McCleave was going to "champion" the implementation of the energy surcharge. McCleave subsequently sent an email to Wyndham hotels, including those in Florida, stating that a "flat rate" of $2.50 per day per room in all hotels would be easier to administer rather than applying different rates in different regions. After Wagoner agreed to the $2.50 surcharge, McCleave sent an email informing the hotels that, until tent cards were available to be placed at the front desks, signs should be placed in each room informing guests about the surcharge. In an email written by Leh, Leh explained that, while she was confused on the "energy surcharge directive," it had been confirmed that all Summerfield Suites would apply the charge immediately.

The trial court subsequently granted the individual appellees' motion to dismiss, concluding that the complaint made no allegations that Teng performed any act that had an effect in Florida and that there was no allegation that would give rise to liability for Teng. With respect to the other three appellees, the trial court found no bases alleged for supporting jurisdiction over them within the scope of their employment. This appeal followed.

A trial court's ruling on a motion to dismiss based on a question of law, such as a finding of the existence or lack of personal jurisdiction, is subject to de novo review.

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Cite This Page — Counsel Stack

Bluebook (online)
869 So. 2d 592, 2004 WL 350742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-office-of-atty-gen-v-wyndham-intern-inc-fladistctapp-2004.