American Baseball Cap, Inc. v. Duzinski

• Decision Date: 31 January 1975
• Docket Number: No. V--396,V--396
• Citation: 308 So.2d 639
• Parties: AMERICAN BASEBALL CAP, INC., a Foreign Corporation, Appellant, v. Andrew Thomas DUZINSKI et al., Appellees.
• Court: Florida District Court of Appeals

Page 639

308 So.2d 639

AMERICAN BASEBALL CAP, INC., a Foreign Corporation, Appellant, v. Andrew Thomas DUZINSKI et al., Appellees.

No. V--396.

District Court of Appeal of Florida, First District.

Jan. 31, 1975.

Rehearing Denied March 17, 1975.

Alan Thompson of Sale, Bryant & Thompson, Panama City, for appellant.

W. A. Swann, Jr., Pensacola, and George C. Cox, Fort Walton Beach, for appellees.

BOYER, Judge.

Appellee, Andrew Duzinski, one of the plaintiffs below, was severely injured when struck in the head by a pitched baseball while wearing a protective helmet allegedly manufactured by appellant. Appellees Henry Duzinski and Irene Duzinski are the parents of Andrew Duzinski. They filed suit in the Circuit Court of Okaloosa County, alleging that defendant, appellant here, was subject to service of process under Florida's 'long-arm statutes', specifically F.S. 48.161, 48.181 and 48.182. Appellant filed a motion to dismiss based upon lack of jurisdiction over the person, insufficiency of process and insufficiency of service of process, which motion was denied. The order of denial is the subject of this interlocutory appeal.

Before considering this case on its merits we feel constrained to call to the attention of the attorneys for the parties a group of rules promulgated and adopted by the Supreme Court of Florida governing the prosecution of appeals in civil cases, known as Florida Appellate Rules, 1962 Revision. (Rule 1.2, FAR) Rule 3.7 relates to briefs, form, contents, and filing thereof. Rule 3.7, subd. f(3) provides that the appellant's main brief shall contain a statement of the case and of the facts and points involved. Subsection (4) of that rule further provides that the 'argument section' of the appellant's brief 'shall contain a division for each of the points involved. Specific assignments of error from which the points argued arise should be stated, and if any reference to the original record or appendix is made, the page should be given.'

Rule 3.7, subd. g provides that the appellee's brief shall be prepared in the same manner as the brief of appellant and in addition thereto shall contain:

'(1) A Statement of the case and of the points involved, if the appellee disagrees with the statement of appellant.

'(2) A Statement of the facts which are necessary to correct or amplify the statement in appellant's brief insofar as it is deemed erroneous or inadequate, with reference to pages of the record-on-appeal.

'(3) Argument on each point presented by appellant and such additional points as appellee desires to present and as fall within the assignments or cross-assignments of error.

* * *'

Rule 4.2, subd. e provides that briefs incident to interlocutory appeals, except as to time of service, 'shall be prepared, filed and served in accordance with Rule 3.7'.

Sub judice neither the brief of appellant nor of appellees contains any statement of facts, as required by the rule nor is there any indication of the 'specific assignments of error from which the points argued arise'. Most vexing, however, is appellees' failure to present an 'argument on each point presented by appellant'. (Rule 3.7, subd. g(3)) Instead of responding to the arguments presented by appellant on the points raised by appellant, appellees has ignored appellant's points and the arguments in support thereof and has gone off on a tangent resulting in the points raised in each brief hanging in the air like Haley's Comet. Such unorthodox procedure, completely contrary to the provisions of the rules in such cases made and provided, as rendered our task of review extremely difficult and cumbersome. If appellees desired to present additional points the rule makes specific provision therefor. However, the presentation of new points by appellees does not excuse failure to respond to points raised and argued in appellant's brief.

Further, the following of the rules relative to including in the briefs of each party a statement of facts would be most helpful to the Court in disposition of the appeal.

In the February 1955 Florida Bar Journal there was published a guide for the preparation of briefs under rules substantially similar to those now in effect. Attorneys handling appellate practice would do well to harken back to that guide.

Turning now to the issues by us to be resolved:

First, may affidavits reciting facts dehors the record be considered by the trial judge in passing upon matters relating to jurisdiction. We hold that they may. However, such affidavits, if they are to be considered by the trial judge, must meet essentially the same requirements as affidavits relative to determination of motions for summary judgment, viz: They shall be made on personal knowledge, shall set forth only such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Affidavits predicated upon inadmissible hearsay should not be utilized. (See Viking Superior Corporation v. W. T. Grant Company, Fla.App.1st 1968, 212 So.2d 331; Young Spring & Wire Corp. v. Smith, Sup.Ct.Fla.1965, 176 So.2d 903; Producers Fertilizer Company v. Holder, Fla.App.2nd 1968, 208 So.2d 492; Page v. Staley, Fla.App.4th 1969, 226 So.2d 129 and Lake v. Konstantinu, Fla.App.2nd 1966, 189 So.2d 171)

Our examination of the record before us reveals that there was no competent evidence before the trial judge that appellant was doing business in the State of Florida at the time the subject helmet was manufactured and sold or at the time of the accident giving rise to this controversy. Thus, we are presented squarely with the following point:

'Is a foreign corporation that was not doing business in the State of Florida at the time of the act complained of, but who subsequently commenced doing business in this State and was doing business at the time suit was filed, subject to service of process pursuant to Florida Statute 48.181 or any other applicable statute?

An excellent discussion of Florida's 'long-arm statutes' is found in an opinion of our sister court of the Fourth District in Youngblood v. Citrus Assoc. of N.Y. Cotton Exch., Inc., Fla.App.4th 1973, 276 So.2d 505, wherein it is stated:

'In determining a question of jurisdiction which arises under the Florida 'long-arm' statutes, we must consider that the provisions for making foreign corporations subject to service of process and subject to the jurisdictions of the Florida courts is matter within the legislative discretion of the state lawmaking body. Confederation of Canada Life Ins. Co. v. Vega y Arminan, 144 So.2d 805 (Fla.1962). Legislatures have, generally speaking, enacted three types of long-arm statutes; those which require more activities or contracts than are currently required by the United States Supreme Court, those which are co-extensive with the limits of the due process concept, and those which go beyond the due process limits and are hence unconstitutional.

'The Florida 'long-arm' statutes are, generally speaking, of the first type; i.e., they require more activities or contacts to sustain service of process than are currently required by the decisions of the United States Supreme Court. Therefore, any analysis of the question of whether jurisdiction in personam has been acquired over a foreign corporation must necessarily start with an analysis of the statutes.' (Footnotes deleted; 276 So.2d at pages 507 and 508)

Statutes providing for substituted service must be strictly construed and one seeking to effect service thereunder has the burden of presenting facts which Clearly justify the applicability of the statute. (Florida Investment Enterprises, Inc. v. Kentucky Co., Fla.App.1st 1964, 160 So.2d 733; Fawcett Publications, Inc. v. Brown, Fla.App.2nd 1962, 146 So.2d 899; Fawcett Publications, Inc. v. Rand, Fla.App.3rd 1962, 144 So.2d 512; Wm. E. Strasser Construction Corp. v. Linn, Sup.Ct.Fla.1957, 97 So.2d 458; Young Spring & Wire Corp. v. Smith, supra; Zirin v. Charles Pfizer & Co., Sup.Ct.Fla.1961, 128 So.2d 594; Viking Superior Corporation v. W. T. Grant Company, supra; and Eder Instrument Co. v. Allen, Fla.App.3rd 1971, 253 So.2d 902)

Florida Statute 48.181 (Florida Statutes 1971) reads (insofar as material to the issues herein involved) as follows:

'(1) The acceptance by * * * all foreign corporations * * * of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in the state, or to have an office or agency in the state, constitutes an appointment by the persons and foreign corporations of the secretary of state * * * as their agent on whom all process in any action or proceeding against them * * * arising out of any transaction or operation connected with or Incidental to the business or business venture may be served. * * * (Emphasis added)

'(2) If a foreign corporation has a resident agent or officer in the state, process shall be served on the resident agent or officer.

'(3) Any person, firm or corporation which sells, consigns, or leases by any means whatsoever tangible or intangible personal property, through brokers, jobbers, wholesalers or distributors to any person, firm or corporation in this state shall be conclusively presumed to be operating, conducting, engaging in or carrying on a business venture in this state.'

The record before us clearly reveals that the appellees failed to prove that appellant, prior to the happening of the event giving rise to this action, operated, conducted, engaged in, or carried on a business or business venture in this State or had an office or agency in the State. (F.S. 48.181(1)) They also failed to prove that appellant, prior to said event, sold, consigned, or leased any tangible or intangible personal property, through brokers, jobbers, wholesalers or distributors to any person, firm or corporation in the State. (F.S. 48.181(3)) Appellees do not even claim that appellant had or...