O'Connell v. Loach, 67-194

• Decision Date: 27 October 1967
• Docket Number: No. 67-194,67-194
• Citation: 203 So.2d 350
• Parties: Edmund F. O'CONNELL and Eve O'Connell, husband and wife, Appellants, v. William A. LOACH, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 350

203 So.2d 350

Edmund F. O'CONNELL and Eve O'Connell, husband and wife, Appellants, v. William A. LOACH, Jr., Appellee.

No. 67-194.

District Court of Appeal of Florida, Second District.

Oct. 27, 1967.

John W. Emerson, of Parks, Emerson, Treadwell & Elkins, Naples, for appellants.

Kenneth G. Hadcock, of Carroll, Vega, Brown & Nichols, Naples, for appellee.

PIERCE, Judge.

This is an interlocutory appeal by Edmund F. O'Connell and Eve O'Connell, husband and wife, defendants in the lower Court, from an order denying their motion to dismiss, for lack of jurisdiction over their persons, a suit filed against them by William A. Loach, Jr., plaintiff below.

Plaintiff Loach filed his common law action against the O'Connells in the Collier County Circuit Court in May, 1966, seeking judgment against them for a real estate commission allegedly due. The O'Connells were nonresidents of Florida, so Loach effected service upon them by serving the Florida Secretary of State pursuant to the provisions of F.S. Sections 47.16 and 47.30, F.S.A. Defendants filed motion to dismiss the complaint for lack of jurisdiction over their persons. The Circuit Court denied the motion to dismiss, and the order of denial came to this Court by interlocutory appeal prosecuted by the O'Connells. On February 1, 1967, this Court reversed the lower Court's order of dismissal, with leave to plaintiff Loach to amend his complaint. O'Connell v. Loach, Fla.App.1967, 194 So.2d 700.

Upon remand of the cause, Loach, on March 2, 1967, filed his second amended complaint, and on March 23, 1967, defendants again moved to dismiss on the ground of lack of jurisdiction over their persons. Both sides filed affidavits supporting their respective positions, and on April 12, 1967, the Court entered order, again denying defendants' motion to dismiss. The O'Connells have brought the latest order of dismissal to this Court by interlocutory appeal making the sole contention here that they were not subject to legal service under the stated Sections.

F.S. Section 47.16 F.S.A., in its pertinent parts, provides:

'47.16 Service of process upon nonresidents engaging in business in state

'(1) The acceptance by any * * * persons * * * associated together * * * who are residents of any other state * * * of the privilege extended by law to nonresidents * * * to operate, conduct, engage in, or carry on a business or business venture in the state * * * shall be deemed equivalent to an appointment by such persons * * * of the secretary of state * * * as the agent of such persons * * * upon whom may be served all lawful process in any action, suit or proceeding against them, or either of them, arising out of any transaction or operation connected with or incidental to such business or business venture, and the acceptance of such privilege shall be signification of the agreement of such persons * * * that any such process against them or either of them, which is so served shall be of the same legal force and validity as if served personally on such persons * * * Service of such process shall be in accordance with and in the same manner as now provided for service of process upon nonresidents under the provisions of § 47.30.'

F.S. Section 47.30, F.S.A. prescribes the legal mechanics for perfecting service against nonresident defendants through the Secretary of State's office, but will be here omitted because it is not denied that the terms thereof were observed in the instant case.

So the point to be resolved is whether or not the O'Connells came within the purview of Section 47.16. And because this in turn depends upon the factual showing made to the Court by the pleadings and affidavits of the parties, the question more precisely is whether the Court abused its discretion in finding from those facts that the O'Connells were amenable to the statute. We hold the lower Court did not so abuse its discretion, and affirm.

In the former appeal this Court had before it an order denying a motion to dismiss based upon the allegations of Loach's first amended compliant to bring the O'Connells within Section 47.16. The pertinent portions of said complaint are set forth in our former opinion (text 194 So.2d 701), but may be summarized as follows: that at all times apposite the defendants were buying and selling real property in Collier County; that from January, 1965 to February, 1966 defendants bought nine Collier County residential business sites and sold eight Collier County residential building sites, plus an additional tract of about 40 acres; that during such time they put up for sale certain other described property which they owned in Collier County; and that 'by such purchase and resale of Collier County, Florida, real property the defendants are carrying on a business or business venture' as contemplated by Section 47.16. The cause of action itself was based upon a real estate broker's commission allegedly due as result of Loach finding a purchaser for Collier County property owned by the O'Connells and listed by them with Loach for sale, but which deal was not consummated 'because of a certain defect' in the O'Connells' title not previously known by Loach.

The former appeal came to this Court bolstered by an affidavit of the O'Connells filed in the lower Court in support of their motion to dismiss to the effect that 'they bought the property for their future use as retirement home building site but decided against using the site', and that at no time had it 'been held as a business or business venture'. Plaintiff Loach at that time filed no affidavit supporting the allegations of the complaint.

This Court held upon the former appeal that the allegations in the complaint as to the buying and selling of property by the O'Connells, as against a motion to dismiss, might have been sufficient 'to show that defendants were 'doing business' or conducting a 'business venture' within the meaning of' the Florida Statutes involved, citing cases, but pointed out that, in a case where service is sought under Section 47.16, the specific transaction constituting the cause of action sued upon must arise out of a 'transaction of operation connected with or incidental to' such business or business venture. The opinion observed that, in the complaint there involved, the engaging in the numerous recited real estate transactions by the O'Connells was not by appropriate allegations tied in with the specific transaction wherein the real estate commission was claimed by Loach, and implied that such connection was essential. The case was reversed with leave to plaintiff Loach 'to amend and other appropriate proceedings'.

Thereafter, Loach filed in the lower Court his second amended complaint which followed the aforesaid allegations of the former complaint, but with the additional added averment: '[t]hat connected with and arising out of the activities described in paragraph 4' (relating to the O'Connells engaging generally in the business of buying and selling real estate), the O'Connells owned and 'placed for sale' with Loach as broker certain specified property, out of which arose Loach's claim for commission. Affidavits were filed on behalf of both parties in support and in opposition of that motion to dismiss. The trial Court held, upon the pleadings and affidavits submitted, that the O'Connells were engaged in a 'business venture' and that the instant claim for real estate commission 'arose out of and was connected with' such business venture. We are unable to hold the trial Judge in error in making such finding.

Each case involving service upon a nonresident pursuant to F.S. Section 47.16, F.S.A. can only be resolved on the basis of the facts revealed by the record in the particular case. And when the point is raised initially by motion to dismiss, and without the trial Court having the benefits of adversary face-to-face testimony, the allegations of the complaint, exhibits attached thereto, and the affidavits that may be submitted by the parties may alone be looked to to ascertain whether the requirements of the statute have been met sufficiently to show, at least prima facie, that the particular transaction sued upon was 'connected with or incidental to' a 'business or business venture' in Florida, engaged in by the defendant...