NGUYEN

v.

PERSPECTIVE GLOBAL, LLC, HOOKS, ET AL

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

June⁷, 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.

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

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).

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.

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.

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.

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.