Caribe & Panama Investments, S. A. v. Christensen, 79-357

• Decision Date: 02 October 1979
• Docket Number: No. 79-357,79-357
• Citation: 375 So.2d 601
• Parties: CARIBE & PANAMA INVESTMENTS, S. A., Appellant, v. Lauge CHRISTENSEN, Appellee.
• Court: Florida District Court of Appeals

Page 601

375 So.2d 601

CARIBE & PANAMA INVESTMENTS, S. A., Appellant, v. Lauge CHRISTENSEN, Appellee.

No. 79-357.

District Court of Appeal of Florida, Third District.

Oct. 2, 1979.

Salley, Barns & Pajon and George H. Salley, Miami, for appellant.

Mahoney, Hadlow & Adams and Harley S. Tropin, Miami, for appellee.

Before PEARSON, KEHOE and SCHWARTZ, JJ.

KEHOE, Judge.

We have jurisdiction pursuant to Fla.R.App.P. 9.130 to review a non-final order denying the motion of the appellant (defendant below) to quash service of process and to dismiss this action for lack of personal jurisdiction over it, a non-resident defendant. We hold that a non-resident foreign corporation, not licensed to do business in this state nor engaging in business in this state, is not subject to the jurisdiction of the courts of this state merely because the president of that corporation happens to be in Florida and is the object of service of process.

The pertinent facts, gleaned from the sparse record presented to us, reveal that the plaintiff, Christensen, filed this action in the Circuit Court alleging that the defendant corporation breached the terms of a promissory note leaving an unpaid balance due him of $900,000. The note had been executed in Miami and provided for the payment of $1,000,000 plus interest. By its own terms the note was payable at Miami, Florida.

The defendant was not registered in Florida as either a domestic or foreign corporation. It was incorporated under the laws of Panama.

Plaintiff sought to serve the defendant by personally serving the defendant's president at his home in Dade County, Florida. The defendant moved to quash service and dismiss the cause on the ground that personal service of process on its president was insufficient to give the court below jurisdiction over a non-resident foreign corporation which conducted no business in this state. In support of the motion, the defendant included an affidavit from its president which asserted that the corporation maintains no offices in Florida, owns no property nor conducts any business operations in this state, and has no officers or employees performing any duties in Florida. The circuit court denied the motion to quash service and dismiss. This denial was error and we reverse.

It is not apparent from the record under what authority the plaintiff sought to bring the defendant under the jurisdiction of the circuit court. We are referred to several statutes allegedly authorizing service of process over a non-resident foreign corporation in this instance. In our opinion, plaintiff's attempted service was defective under these circumstances and the court below did not acquire jurisdiction over the defendant.

Plaintiff's reliance upon Sections 48.081 ¹ and 48.181(1) ² is misplaced, since the purported service of process failed to comply with the requirements of these statutes. We have recently reaffirmed the established law that a plaintiff must allege sufficient facts that the non-resident defendant was doing business in Florida and that the cause of action sued upon arose out of such business before jurisdiction attaches under Section 48.181(1). Bradford White Corp. v. Aetna Insurance Company, 372 So.2d 994 (Fla. 3d DCA 1979). See also Youngblood v. Citrus Associates of the New York Cotton Exchange, 276 So.2d 505 (Fla. 4th DCA 1973), cert. denied, 285 So.2d 26 (Fla.1973); Lyster v. Round, 276 So.2d 186 (Fla. 1st DCA 1973), cert. denied, 283 So.2d 105 (Fla.1973); Goffer v. Weston, 217 So.2d 896 (Fla. 3d DCA 1969). It is clear that the burden is upon the plaintiff to sustain the validity of such service when he seeks to invoke the jurisdiction of the court, Youngblood v. Citrus Associates of the New York Cotton Exchange, supra, and he must plead sufficient facts to justify the application of the statute in order to withstand a legal challenge to such service. Chase Manhattan Bank v. Banco Del Atlantico, 343 So.2d 936 (Fla. 3d DCA 1977).

We concur with the reasoning expressed by our sister court in Youngblood that attempted service upon a non-resident foreign corporation pursuant to Section 48.081(1) by personally serving an officer of that corporation while he was in Florida was insufficient to give the Florida courts in personam jurisdiction where there was no showing that the corporation had been doing business in Florida or that the cause of action arose from the corporation's activities in this state. The court held that the "connexity" requirement for service of process under Section 48.181(1) applied equally as well to Section 48.081(1).

Likewise, in the instant case, there has been no showing that service was properly effected under either Sections 48.081(1) or 48.181(1). The bare allegation in the complaint that the defendant has conducted business in Florida is not sufficient to overcome the defendant's affidavit to the contrary.

Service of process was also defective under Section 48.193, Florida Statutes (1977) (the Florida "long arm" statute) where the plaintiff failed to personally serve the defendant out of state pursuant to Section 48.194. Although Section 48.193(g) authorizes service upon non-residents who breach a contract required to be performed in this state, the exclusive method of service in such case is provided for in Section 48.194. ³ Bradford White Corp. v. Aetna Insurance Company, supra; P. S. R. Associates v. Artcraft-Heath, 364 So.2d 855 (Fla. 2d DCA 1978). Since the plaintiff did not serve the non-resident defendant outside the state by filing an affidavit of the serving officer stating the time, manner and place of service, the court below did not acquire jurisdiction over the defendant under the "long arm" statute.

The order appealed is reversed and the cause is remanded with directions to dismiss the complaint with leave to amend.

Reversed and...