Evershield Products, Inc. v. Sapp, 6833

• Decision Date: 10 February 1967
• Docket Number: No. 6833,6833
• Citation: 195 So.2d 10
• Parties: EVERSHIELD PRODUCTS, INC., Appellant, v. J. A. SAPP and D. C. Sapp, d/b/a Tice Super Market, Appellees.
• Court: Florida District Court of Appeals

Page 10

195 So.2d 10

EVERSHIELD PRODUCTS, INC., Appellant, v. J. A. SAPP and D. C. Sapp, d/b/a Tice Super Market, Appellees.

No. 6833.

District Court of Appeal of Florida, Second District.

Feb. 10, 1967.

Rehearing Denied March 3, 1967.

William H. Shields, of Pavese, Waldorf, Shields & D'Alessandro, Fort Myers, for appellant.

Duane A. Reynolds, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.

PIERCE, Judge.

This is an appeal by Evershield Products, Inc., from an order sustaining service of process theretofore obtained upon it and confirming the verdict and judgment rendered pursuant to such service.

Evershield Products, Inc., hereinafter referred to as Evershield Products, is a Maryland corporation and is the manufacturer of a resin commodity used in construction or remodeling of certain types of freezer units. Evershield Liquid Tile of Florida, Inc., hereinafter referred to as Evershield Liquid Tile, is a Florida corporation and sells, dispenses and services said resin substance, and is generally known as the 'applicator.'

In May, 1962, plaintiffs J. A. and D. C. Sapp were doing business as Tice Super Market in Fort Myers and contracted with one Rutledge for remodeling and enlargement of their business structure, in the process of which Evershield Liquid Tile was a sub-contractor in the application of liquid tile, manufactured by Evershield products, in constructing a refrigerated icebox in the remodeling of the grocery store building. After completion of the icebox, extremely pungent, obnoxious and deleterious odors emanated from where the meats and produce were kept and permeated the entire building, causing considerable loss to the merchandise and produce stored in the building and necessitating the re-building of certain portions of the structure.

Plaintiffs Sapp brought suit in the Lee County Circuit Court against the two corporations, one as the manufacturer and the other as the servicing medium, of the allegedly defective material, averring substantially the foregoing facts. Separate summonses for each corporation were sent to Fort Lauderdale, where they were each served by the Sheriff of Broward County upon one 'George Skadding, President of said corporation.' In other words, Skadding was served separately 'as President' of the Maryland corporation and also the Florida corporation.

Evershield Products made no appearance in the Circuit Court suit and default was entered against it. Thereafter a jury, after an ex parte trial, returned a verdict against both corporations for $12,500.00, upon which verdict judgment was entered on December 4, 1964.

Thereafter on January 13, 1965, Evershield Products filed petition in the Circuit Court proceeding, alleging that Skadding was not on August 12, 1963, the date he was served in Broward County, either the President of Evershield Products or had any relationship with the company; that the president of the company is and was one Paul J. Petrlik; that the corporation was never served with process through the Secretary of State's office, that it did not do business and had no place of business and no resident agent in the State of Florida; that it bore 'no corporate relationship' with Evershield Liquid Tile, but they were two 'distinct corporations'; that Evershield Products had never received copy of the complaint in the case nor ever had any process 'delivered into its hands'; and that therefore it was 'not a part to these proceedings in fact and in law.' The petition prayed that the verdict and judgment aforesaid 'be amended to strike' Evershield Products as a party, and that 'the records of the Court be expunged' to eliminate the corporation from being bound by the judgment 'because of lack of notice.'

Plaintiffs in the suit filed a reply to the petition aforesaid, admitting that Evershield Products was 'a manufacturer of formulated polyester resins' and that process was duly issued and served in the cause on August 12, 1963, but denying all other allegations in the petition. By way of 'Affirmative Defenses' to the petition, plaintiffs set forth that not only was Evershield Products duly served with process but that said corporation 'did in fact have notice that the complaint and summons had been issued,' that George Skadding had been served as the purported president of the company, that a copy of the complaint had been sent by letter on or about September 11, 1963 to 'Paul Petrik,' ¹ the actual President; that Evershield Products 'was at all times advised as to the status of the suit' and had 'notice of trial on damages on November 20, 1964 * * * and did not take any steps to contest the jurisdiction of the court.'

On October 14, 1965, after full hearing and taking of adversary testimony, the Circuit Judge entered order denying the petition of Evershield Products and confirming the verdict and judgment against the corporation. In conjunction with said order the Judge made findings of fact from the evidence substantially as follows:

that Evershield Products was duly served with copy of Complaint and Summons 'by service upon an agent of' the corporation transacting business for it in the State of Florida';

that the officers of Evershield Products 'received a copy of the Complaint and Summons by registered mail';

that the corporation 'had forenotice of said suit and an opportunity to defend';

that the corporation 'chose not to raise the jurisdictional question until after the case had been tried before a jury and a verdict rendered and judgment entered';

that Evershield Products 'did business in the State of Florida through a broker, jobber or distributor,' namely, Evershield Liquid Tile;

that 'strong economic ties existed between' Evershield Products and Evershield Liquid Tile; and

generally 'that service was obtained pursuant to the laws of the State of Florida and that said (Evershield Products) was given notice and opportunity to defend the said suit.'

Evershield Products has appealed to this Court from said order aforesaid and assigns as error the findings and conclusions of the Circuit Judge. We affirm.

The crux of the appeal is whether, under the laws of Florida, Evershield Products received notice of the Circuit Court suit in such manner as would accord with the requirements of procedural due process, and whether the requirements of the Florida statutes were substantially complied with.

From the foregoing specific findings made by the trial Judge two major factual postulates may be deduced: (1) Evershield Products was doing business in Florida through a broker, jobber or distributor, namely, Evershield Liquid Tile, and that there were strong economic ties existing between the two corporations; and (2) Evershield Products, through its Maryland officers, had actual personal notice of pendency of the Florida suit by having received copy of the complaint and summons by registered mail in ample time to defend, and also having been served with actual process in personam through an agent transacting business for it in Florida.

Since 1951 Florida has had upon its statute books what are known as the Long Arm statutes, which, as the term implies, reach out to render amenable to the Florida state courts foreign corporations doing business within the State of Florida, and which are so intended. These Long Arm statutes, or more precisely the 'Florida Long Arm Jurisdiction Statutes' have been enacted, and subsequently enlarged and amended, since 1951. Two of these statutes are pertinent to this case, and appear as Secs. 47.16(1) and (2), and 47.17. These sections are carried herewith in the margin. ²

An interesting and instructive discussion of the antecedent history of the 'Long Arm' statutes is found in the Mooney Aircraft case, infra (text 332 F.2d 137, et sea.)--interesting in that it vividly depicts the 'ins and outs' of the Florida law, both statutory and case law; and instructive in that it shows the clear intent of the Florida legislature in enacting the 'Long Arm' statutes. It seems that the Federal Court of Appeals, 2nd Circuit, in Berkamn v. Ann Lewis Shops, Inc., 246 F.2d 44, affirmed a Federal District Court, 142 F.Supp. 417, which held the original 1951 Long Arm statute 'inadequate to sustain an earlier Florida State Court judgment ' but in so holding observed that '(t)his is not to say that a statute might not constitutionally be drawn which would make the presence in a state of a wholly-owned subsidiary of a foreign corporation sufficient basis to assert jurisdiction over the parent company,' 142 F.Supp., text 422. Florida instantly reacted in a 'legislative reflex' to the Berkman decision 'by adding Subsection (2) to § 47.16 * * * so as to encompass distributors, jobbers, wholesalers, and brokers for foreign corporations.' And, to use the colorful language in Mooney Aircraft (text 332 F.2d at page 138), Florida's Long Arm 'muscles were beefed up by the legislative declaration of policy stated in emphatic terms' in the 1957 amendment (now appearing as F.S. Sec 47.16 (2), F.S.A.), as follows:

'WHEREAS, persons, firms and corporations in other jurisdictions are directly or indirectly furnishing millions of dollars worth of tangible and intangible personal property to persons, firms and corporations in this state each year; and

'WHEREAS, litigation in both tort and contract frequently arises out of the purchase, lease, consignment, use and consumption of such property each year; and

'WHEREAS, the cost and expense of going to other jurisdictions, both national and international, frequently has the practical effect of denying all rights and remedies regarding such purchase, lease, consignment, use and consumption; and

'WHEREAS, it is just and fair that such litigation be conducted in this state rather than in a foreign jurisdiction.'

F.S. Sec. 47.16(1), F.S.A. provides that any foreign legal entity, natural or corporate, who 'accepts * * * the privilege' of engaging 'in business or a business venture' in Florida or...