Gaskill v. May Bros., Inc., 79-334
| Decision Date | 09 May 1979 |
| Docket Number | No. 79-334,79-334 |
| Citation | 372 So.2d 98 |
| Parties | Nancy GASKILL, Appellant, v. MAY BROTHERS, INC., Appellee. |
| Court | Florida District Court of Appeals |
Dennis L. Horton of Dennis L. Horton, P. A., Clermont, for appellant.
James M. Hess of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appellee.
This is an appeal from an order denying a motion to set aside a default judgment.
The appellee filed a two-count complaint for damages against appellant upon theories of open account and account stated. Appellee then tried to have the appellant personally served within the State of Illinois pursuant to Section 48.194, Florida Statutes (1977). The Illinois deputy's affidavit indicates that when he went to the address specified by the appellee, the person inside the house declined to accept service. There is no indication that the appellant was that person.
Appellee next sought service of process by publication, following the procedures set forth in Chapter 49, Florida Statutes. When appellant failed to file an appearance, appellee obtained a default judgment totalling $3,051.58. Four months later, appellant, by special appearance, requested a stay of execution and moved to set aside the judgment for lack of jurisdiction over her person. Following a hearing the court denied the motion to set aside the judgment and permitted execution to proceed.
The appellant contends that the court never had the requisite jurisdiction over her person upon which to predicate the judgment because the service of process upon her was insufficient. We agree.
Appellee justified its attempt to secure personal service on appellant in Illinois upon the following portions of Section 48.193, Florida Statutes (1977):
48.193 Acts subjecting persons to jurisdiction of courts of state.
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state.
(c) Owns, uses, or possesses any real property within this state.
(d) Contracts to insure any person, property, or risk located within this state at the time of contracting.
However, the complaint makes no reference to the cause of action having arisen out of any of the circumstances described in the statute. Explaining when this statute may be used to obtain In personam jurisdiction, our court in Griffin v. Zinn, 318 So.2d 151 (Fla. 2d DCA 1975), said:
The foregoing provision obviously relates only to those cases in which there is a direct affiliation or nexus between the basis of the controversy and the...
To continue reading
Request your trial
-
Bedford Computer Corp. v. Graphic Press, Inc.
...The courts of this state have followed this rule in the context of contract disputes such as the one here. Gaskill v. May Brothers, Inc., 372 So.2d 98 (Fla. 2d DCA 1979); Shannon v. Great Southern Equipment Co., 326 So.2d 19 (Fla. 2d DCA 1976); Ressler v. Sena, 307 So.2d 457 (Fla. 4th DCA 1......
-
New England Rare Coin Galleries, Inc. v. Robertson, 86-1081
...Huguenor, 420 So.2d 344 (Fla. 5th DCA 1982); Alan Restaurant Corp. v. Walder, 399 So.2d 1128 (Fla. 4th DCA 1981); Gaskill v. May Brothers, Inc., 372 So.2d 98 (Fla. 2d DCA 1979). We have, by separate order, granted appellant's motion for attorney's fees under Section 57.105, Florida Statutes......
-
Huguenor v. Huguenor
...allege sufficient facts to show a cause of action for which constructive service is allowed under the statute, Gaskill v. May Brothers, Inc., 372 So.2d 98 (Fla.2d DCA 1979). The action here is one for money damages based on the tort of conversion. It is simply not the type of action where s......
-
Wynn v. Aetna Life Ins. Co., ZZ-349
...service of process made pursuant to § 48.194, Fla.Stat., with the result there would be no in personam jurisdiction over Sara. See Gaskill, 372 So.2d at 99. In order to plead a valid cause of action for the exercise of long arm jurisdiction, Aetna must first allege sufficient facts to fall ......