Flying Saucers, Inc. v. Moody, 28052.
| Citation | 421 F.2d 884 |
| Decision Date | 18 May 1970 |
| Docket Number | No. 28052.,28052. |
| Parties | FLYING SAUCERS, INC., a Florida Corporation, Plaintiff-Appellant, v. Shearn MOODY, Jr., Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
James F. Dougherty, Henry H. Taylor, Jr., Robert J. Paterno, Taylor, Brion, Buker, Hames, Greene & Whitworth, Miami, Fla., for appellant.
William D. Decker, A. R. Schwartz, Markwell, Stubbs, Decker, Dalehite & Youngblood, Galveston, Tex., Ferrell & Young, Miami, Fla., for appellee.
Before JOHN R. BROWN, Chief Judge, TUTTLE and MORGAN, Circuit Judges.
Certiorari Denied May 18, 1970. See 90 S.Ct. 1692.
This is an appeal from an order dismissing a plaintiff's suit for the purchase price of a vessel, such dismissal being based upon a motion to dismiss and quash service under Florida's Long-Arm Statute, Fla.Stats. § 48.181, F.S.A.1
Since no evidentiary hearing was held, but the trial court entered the order of dismissal on the simple motion alleging that the defendant was a resident of the State of Texas and had been served only by mail, we must test the correctness of this order quashing service and ordering a dismissal of the action by the contents of the complaint, together with the affidavit attached thereto. There is no dispute of the facts from which the trial court was required to arrive at its conclusion on the question whether Mr. Moody was a "person * * * who is a resident of any other state or country" who had accepted "the privilege extended by law to non-residents and others to operate, conduct, engage in, or carry on a business venture in the state, * * *."
The complaint had attached to it an affidavit, to which no counter affidavit or showing has been made, presenting the following state of facts:
(a) On or about April 18, 1968, the defendant spoke with John F. Manson, a major stockholder of the Plaintiff corporation, at which time the defendant advised the said Jack Manson that subject to a survey he wanted to buy the oil screw hydrofoil called the DISCO VOLANTE at and for a purchase price of $10,000 in cash and 22,000 shares of the capital stock of The Empire Life Insurance Company of America, an Alabama corporation; the defendant told the plaintiff that his attorney was Senator A. R. Schwartz, of Galveston, Texas, and agreed that his attorney would close the transaction with the plaintiff's attorney; a trial run of said vessel was arranged for the following day. Thereafter, the defendant sent his agent, one Rudy Teichman, of Galveston, Texas to Miami, Florida to inspect and survey said vessel. That, thereafter, on or about April 19, 1968, at the request of the defendant, said vessel was towed down the Miami River and a trial run conducted under the supervision of the said Rudy Teichman. That the said Rudy Teichman then advised the plaintiff and the defendant that said vessel had passed the survey and authorized and directed Allied Marine Corporation, a Florida corporation, to haul said vessel, to clean said vessel, to paint said vessel, to perform miscellaneous repairs to said vessel, and to furnish miscellaneous supplies to said vessel. Said work was in fact performed by the said Allied Marine Corporation for the defendant. The defendant paid the said Allied Marine Corporation for said services and materials.
(b) Thereafter on or about May 9, 1968, the defendant employed a captain for the said vessel who, at Miami, Florida, contracted with Allied Marine Corporation for: dockage for said vessel; day-by-day care of said vessel consisting of running her engines, pumping her bilges and checking out her lines; and contracted with said Allied Marine Corporation for the preparation of drawings and specifications for the conversion of said vessel to a luxurious day cruiser. Said plans and specifications were in fact completed and delivered to the defendant's agent and master of said vessel, and thereafter the defendant paid said Allied Marine Corporation for said services and materials. Additionally, the captain of said vessel, as agent for the defendant, negotiated with various and sundry vendors of Miami, Florida for the installation of radios, air conditioning, and other materials, negotiated with Miami shipyards for the conversion of said vessel, and negotiated with a local marine architect for the conversion of said vessel.
(c) Thereafter, on or about May 17, 1968, at the request of said A. R. Schwartz, attorney, of Galveston, Texas, the defendant arranged for the transfer of the title of said vessel to the defendant and the title to said vessel was at Miami, Florida transferred and registered in the name of the defendant and the recorded bill of sale of enrolled, or licensed yacht, vessel document and Certificate of Ownership, were forwarded to the said A. R. Schwartz, as agent for the defendant, by mail from Miami, Florida.
(d) Thereafter, the said A. R. Schwartz, attorney, of Galveston, Texas, by Western Union Telegram on May 31, 1968, advised the plaintiff's lawyer in words and figures as follows:
It being evident from a casual glance at this statement of facts that the nonresident Moody was actively present in the State of Florida by his several agents for a period of approximately one month from April 19, when defendant caused his representative Teichman of Galveston, Texas to fly to Miami, Florida, until May 17, when, at the request of admitted counsel for the defendant, title of the vessel was transferred and registered in the name of the defendant and the recorded Bill of Sale of Enrolled, or Licensed Yacht, Vessel Document, and Certificate of Ownership, were forwarded to the defendant by mail from Miami, Florida, we must conclude whether these activities...
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...is the archetype for statutes like the Florida long arm statute, which fall into the first category.9 See also, Flying Saucers, Inc. v. Moody, 421 F.2d 884, 887 (5th Cir. 1970); Delray Beach Aviation Corp. v. Mooney Aircraft, Inc., 332 F.2d 135, 137 (5th Cir. 1970).10 See Delray Beach Aviat......
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