AB CTC v. Morejon

• Decision Date: 24 July 1975
• Docket Number: No. 45903,45903
• Citation: 324 So.2d 625
• Parties: 18 UCC Rep.Serv. 981 AB CTC, a Swedish Corporation, Petitioner, v. Victoria MOREJON, Respondent.
• Court: Florida Supreme Court

Page 625

324 So.2d 625

18 UCC Rep.Serv. 981

AB CTC, a Swedish Corporation, Petitioner, v. Victoria MOREJON, Respondent.

No. 45903.

Supreme Court of Florida.

July 24, 1975.

Rehearing Denied Jan. 27, 1976.

David Yelen, Yelen & Yelen, Coral Gobles, for petitioner.

Norman S. Segall, High, Stack, Davis & Lazenby, Miami, for respondent.

ADKINS, Chief Justice:

Conflict is the basis for our jurisdiction. Fla.Const., Article V, § 3(b)(3), F.S.A. 1973. In Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965), we held that this Court may review by conflict certiorari a per curiam affirmance without opinion where an examination of the record proper discloses the legal effect of such per curiam affirmance is to create conflict with a decision of this Court or another District Court of Appeal. Under the provisions of Fla.Const., Article V, § 3(b)(3), F.S.A., as amended in 1973, a direct conflict with decisions of the same District Court of Appeal vests this Court with jurisdiction.

Where, as here, the per curiam affirmance without opinion could have been based on more than one statute, the petitioner must show that a conflict would be created between the decision Sub judice and a decision of a District Court of Appeal or of the Supreme Court, regardless of which statute may have been the basis for the decision Sub judice. Since petitioner has shown that the decision Sub judice had to be based on either Fla.Stat. § 48.181 or § 48.182, and such decision if based upon § 48.181 would conflict with Fawcett Publications, Inc. v. Rand, 144 So.2d 512 (Fla. 3d DCA 1962), and if based upon Fla.Stat. § 48.182, would conflict with Gordon v. John Deere Co., 264 So.2d 419 (Fla.1972), we have conflict jurisdiction.

Respondent filed a complaint against petitioner and Bermil Industries for damages as a result of an accident occurring in 1971. The accident, which resulted in serious personal injury to respondent, was alleged to have been caused by the negligent and careless manufacture of a washing machine by petitioner. Service of process on petitioner was attempted by substitute service of process on the Secretary of State.

Petitioner moved to dismiss and to quash based upon lack of jurisdiction over the person. Petitioner's motion to dismiss was supported by an affidavit of its director, wherein it was declared that petitioner is a Swedish corporation having its offices in Sweden; that petitioner does not conduct business in the United States; that all sales are made in Sweden to its distributor, Bermil Industries, an independent contractor, and sent by petitioner to Bermil Industries F.O.B. Gothenburg, Sweden; that the washing machine in question was sold to Bermil Industries in 1968.

The trial court permitted respondent to incorporate into this record the record of a prior law suit including affidavits, depositions, and trial testimony. The facts therein revealed that petitioner shipped all of its products, including the washing machine in question, to Bermil Industries, the exclusive representative of petitioner in the United States. Furthermore, a service manual printed in Sweden in the English language was delivered by petitioner to Bermil Industries for distribution with the machines in the United States. Bermil Industries sent the washing machine in question to Laundry Equipment Company in Florida. In 1969 the machine was sold in Florida by Laundry Equipment Company to Washwell, Inc., a laundromat. Respondent sustained personal injuries while using the washing machine in the laundromat in April, 1971.

The motion to dismiss for lack of jurisdiction over the petitioner was denied. An interlocutory appeal was taken and the Third District Court of Appeal by a two to one vote per curiam affirmed without opinion.

In Dinsmore v. Blumenthal, 314 So.2d 561, opinion filed May 21, 1975, this Court adopted the views expressed in Fawcett Publications, Inc. v. Rand, supra, requiring control by the nonresident defendant over brokers, jobbers, wholesalers or distributors, or control over the personal property in the hands of brokers, jobbers, wholesalers or distributors, before a nonresident can be held to be doing business in this State through brokers, jobbers, wholesalers or distributors, pursuant to Fla.Stat. § 48.181(1) or § 48.181(3).

One seeking to effect substituted service of process under a long-arm statute has the burden of presenting facts which clearly justify the applicability of the statute. Fawcett Publications, Inc. v. Rand, supra. In the record before this Court, respondent failed to prove that petitioner exercised any control over the brokers, jobbers, wholesalers or distributors, or any control over the washing machine in the hands of the brokers, jobbers, wholesalers or distributors. The decision Sub judice conflicts with Fawcett Publications, Inc. v. Rand, supra, and Dinsmore v. Blumenthal, supra.

Whereas a parent company has 'control' over a subsidiary, a manufacturer does not necessarily have 'control' over a sole distributor. Fla.Stat. § 47.16(2) (now § 48.181(3)) was enacted as a legislative response to Berkman v. Ann Lewis Shops, Inc., 246 F.2d 44 (2d Cir. 1957) affg., 142 F.Supp. 417 (S.D.N.Y.1956), wherein it was held that Fla.Stat. § 47.16(1) (now § 48.181(1)) was inadequate to serve as a basis to assert jurisdiction in this State over a parent company whose subsidiary was doing business in this State.

We do not hold that respondent cannot, by appropriate proof, meet its burden of proof to show applicability of Fla.Stat. § 48.181(1) or § 48.181(3). We merely hold that respondent has failed to do so. Upon a proper showing, respondent should be afforded a further opportunity to attempt service.

Having reached the conclusion that petitioner failed to sustain the propriety of substitute service pursuant to § 48.181, we must decide whether petitioner is subject to jurisdiction under § 48.181 which provides:

'48.182 Service on nonresidents committing a wrongful act outside the state which causes injury within the state.--Any nonresident person, firm, or corporation who in person or through an agent commits a wrongful act outside the state which causes injury, loss, or damage to persons or property within this state may be personally served in any action or proceeding against the nonresident arising from any such act in the same manner as a nonresident who in person or through an agent has committed a wrongful act within the state. If a nonresident expects or should reasonably expect the act to have consequences in this state, or any other state or nation and derives substantial revenue from interstate or international commerce he may be served; provided that, if such nonresident is deceasedHis executor or administrator shall be subject to personal service in the same manner as a nonresident; provided further that this section shall not apply to a cause of action for defamation of character arising from the act.'

In Gordon v. John Deere Co., supra, this Court held that Fla.Stat. § 48.182, enacted in 1970 and having an effective date of July 1, 1970, could not be applied retroactively to allow service under its provisions as to an alleged wrongful act committed prior to the enactment of the statute.

The issue as to the applicability of Fla.Stat. § 48.182 centers around the date of the wrongful act, to-wit: the negligent manufacture of the washing machine and the breach of implied warranty of merchantability. Petitioner argues that any wrongful act on its part occurred in 1968, the date the washing machine was manufactured. Since the alleged wrongful act occurred two years prior to the effective date of Fla.Stat. § 48.182, petitioner argues the use of Fla.Stat. § 48.182 would be retroactive and the decision Sub judice if based on § 48.182, would conflict with Gordon v.John Deere Co., supra.

Respondent contends that the wrongful act in a breach of warranty case occurs at the time of injury. Since the statute became effective in 1970 and the injury occurred in 1971, respondent argues the statute was not being applied retroactively in violation of this Court's decision in Gordon v. John Deere Co., supra.

Assuming only for the purpose of

Fla.Stat. 672.725(2) states that: associated with the washing machine manufactured by petitioner in Sweden, the question arises when the breach of warranty occurred. On this question, Florida law is controlling.

Fla.Stat. 627.725(2) states that:

'. . . A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.'

Since the breach of warranty occurs when tender of delivery is made, and since the tender of delivery of the washing machine occurred prior to the enactment of the statute and prior to its effective date, the use of § 48.182 to obtain jurisdiction over the petitioner would be retroactive, in violation of this Court's holding in Gordon v. John Deere Co., supra.

Although we hold that the wrongful act, the breach of warranty, occurred when tender of delivery was made, we do not recede from our holding in Creviston v. General Motors Corp., 225 So.2d 331 (Fla.1969) that, where warranty attaches to sale of a product, the cause of action does not accrue and the statute of limitations does not commence until the breach of warranty in the form of a defective product is or should be discovered.

Accordingly, the decision Sub judice is quashed and this cause is remanded to the District Court of Appeal so that same may be further remanded to the trial court for further proceedings consistent herewith.

It is so ordered.

ROBERTS and BOYD, JJ.And WELLS, Circuit Judge, concur.

ENGLAND, J., dissents with an opinion with which OVERTON, J., concurs.

ENGLAND, Justice (dissenting).

I dissent from the majority's jurisdictional determination. In 19...