Elmex Corp. v. Atlantic Federal Sav. and Loan Ass'n of Ft. Lauderdale

• Decision Date: 16 January 1976
• Docket Number: No. 75--1314,75--1314
• Citation: 325 So.2d 58
• Parties: The ELMEX CORPORATION, Appellant, v. ATLANTIC FEDERAL SAVINGS AND LOAN ASSOCIATION OF FORT LAUDERDALE, a Florida Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 58

325 So.2d 58

The ELMEX CORPORATION, Appellant, v. ATLANTIC FEDERAL SAVINGS AND LOAN ASSOCIATION OF FORT LAUDERDALE, a Florida Corporation, Appellee.

No. 75--1314.

District Court of Appeal of Florida, Fourth District.

Jan. 16, 1976.

Peter H. Leavy, Myers, Kaplan, Levinson & Kenin, Miami, for appellant.

Robert N. Fryer, Jr., Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellee.

MAGER, Judge.

This is an interlocutory appeal by The Elmex Corporation, an Ohio corporation, defendant below, from an order denying defendant's motion to dismiss the complaint and quash substituted service of process of Atlantic Federal Savings and Loan Association of Fort Lauderdale, plaintiff below.

The plaintiff filed suit to recover money damages resulting from an alleged breach of a condition of a contract entered into by and between the plaintiff and defendant. At the outset of its complaint plaintiff alleged:

'(1) Plaintiff is a corporation under the laws of the State of Florida having its principal place of business in the State of Florida and Defendant, THE ELMEX CORP., is a corporation incorporated under the laws of the State of Ohio and Derives substantial revenue from the sale of items of tangible personal property, both Directly and through wholesalers and distributors, To persons and firms within the State of Florida. . . .'

The complaint reflected an offer by plaintiff to purchase certain merchandise from defendant for the sum of $41,400 and the forwarding of a purchase order by plaintiff to the defendant for that purpose. ¹ The complaint alleges that the purchase was conditioned upon the merchandise being 100 per cent refundable and upon payment by the defendant of one-half of the freight charges (which conditions appear on the face of the purchase order).

The plaintiff's complaint further alleges that defendant accepted the offer when it shipped the merchandise from its warehouse located in Dallas, Texas to plaintiff in Florida. Defendant subsequently billed plaintiff for $41,999.95, representing the cost of the merchandise and freight charges which was paid in full. Plaintiff alleges that a return of a portion of the merchandise for refund was refused by defendant and, further, that defendant failed to give plaintiff credit for one-half of the freight charges incurred in the delivery and return of the merchandise. Asserting defendant's alleged failure to perform the agreement, plaintiff claimed damages in the amount of $37,033.67.

Defendant filed a Motion to Dismiss Complaint and Quash Process asserting that the complaint failed to set forth the necessary allegations giving rise to the use of substituted service of process and failed to demonstrate the (nonresident) defendant's minimum contacts with the state. ²

In support of its motion defendant submitted a sworn affidavit of its vice-president which averred that the defendant corporation does not maintain or have in the State of Florida: any business office, bank account, telephone listing, books of account or any other books and records, goods stored, leased or owned property. The affidavit further avers that defendant does not have any employees or agents who performed any functions for the defendant in the State of Florida.

Plaintiff filed an opposing affidavit executed by its purchasing agent reciting substantially those allegations contained in plaintiff's complaint relating to the purchase order, delivery of and payment for the merchandise in question. The trial court entered a judgement and order denying defendant's motion to dismiss, essentially concluding that the plaintiff carried its burden of presenting facts sufficient to justify substituted service under sec. 48.181, F.S.

We agree with the order denying defendant's motion to dismiss, but for reasons other than those set forth in the court's judgment and order. Kephart v. Pickens, Fla.App.1972, 271 So.2d 163. ³

Although defendant seeks a reversal predicated primarily upon the contention that a single sale of goods to a Florida corporation does not constitute 'doing business' within the meaning of sec. 48.181, F.S., we do not perceive the disposition of this appeal to turn upon this determination. As it will, hopefully, more clearly appear later in this opinion, such a determination would be premature at this stage of the proceedings. The issue to be resolved is whether the plaintiff has met the burden of presenting facts sufficient to justify substituted service of process so as to withstand a motion to dismiss, i.e. has the plaintiff alleged (and proven) all requisite jurisdictional facts justifying the applicability of the long-arm statute, sec. 48.181, F.S. ⁴

The courts have consistently observed that statutes relating to substituted service of process (in lieu of personal service of process) must be strictly construed; and the burden of proof to sustain the validity of substituted service of process rests upon the person seeking to invoke the provisions of such statutes. Viking Superior Corporation v. W. T. Grant Company, Fla.App.1968, 212 So.2d 331; Youngblood v. Citrus Assoc. of N. Y. Cotton Exch. Inc., Fla.App.1973, 276 So.2d 505; Fawcett Publications v. Rand, Fla.App.1962, 144 So.2d 512; Young Spring & Wire Corp. v. Smith, Fla.1965, 176 So.2d 903. It is plaintiff's burden to Plead (present) facts which clearly justify as a matter of law the applicability of the substituted service statutes in order to meet a legal challenge to such service. Young Spring & Wire Corp. v. Smith, supra; American Baseball Cap, Inc. v. Duzinski, Fla.App.1975, 308 So.2d 639. It is also plaintiff's burden (at some stage of the proceedings) to Prove the allegations warranting the application of the substituted service statute in order to overcome a competent challenge to such service. See Henschel-Steinau Company v. Harry Schorr, Inc., Fla.App.1974, 302 So.2d 198.

There are, therefore, two separate and distinct considerations (or burdens to be carried) in the determination of the applicability of the substituted service statute: (1) the legal sufficiency of the Pleadings; (2) the legal sufficiency of the Proof.

A defendant seeking to challenge the legal sufficiency of matters alleged in a complaint relating to the application of the long-arm statute may do so by filing a motion to dismiss (or abate) on the ground of lack of jurisdiction over the person. ⁵ The motion, in essence, must be treated as admitting all facts properly pleaded pertinent to the conduct and activities of the defendant in the forum state and constitutes an assertion that as a matter of law such facts are nevertheless legally insufficient to demonstrate the applicability of the long-arm statute. It may be unnecessary for the defendant to do anything more than file a simple (unsupported) motion where the allegations of the complaint are legally insufficient. See Lyster v. Round, Fla.App.1973, 276 So.2d 186; Lake Erie Chemical Company v. Stinson, Fla.App.1964, 162 So.2d 545; Nichols v. Seabreeze Properties, Inc., Fla.App.1974, 302 So.2d 139; cf. Fawcett Publications, Inc. v. Brown, Fla.App.1962, 146 So.2d 899. However, a complaint may present jurisdictional facts which (when deemed admitted for the purposes of the motion) would be sufficient to withstand such motion.

The determination of the motion is based on a consideration of the facts reflected in the Pleadings or apparent from the face of the record. The court determines whether the facts are sufficient as a matter of law to justify the application of the long-arm statute. See Nichols v. Seabreeze Properties, Inc., supra; see also Lyster v. Round, supra.

A defendant seeking to inject factual matters which do not appear on the face of the record is required to support the motion to dismiss with an affidavit, deposition or other proof. See Viking Superior Corporation v. W. T. Grant Company, supra. If the supporting proof reflects facts in opposition to or in contravention of those matters contained in the complaint the issue becomes then 'one of proof' with the burden shifting to the plaintiff to clearly show by competent proof that the allegations of the complaint justify the application of the long-arm statute. ⁶ For example where an affidavit is presented, reciting various activities and conduct in which a defendant does Not engage in the forum state thereby negating or opposing the allegations of fact in the complaint, then the burden shifts to the plaintiff to present by opposing affidavit or other proof those material facts supporting...