Hamilton Brothers, Inc. v. Peterson
| Citation | 445 F.2d 1334 |
| Decision Date | 15 September 1971 |
| Docket Number | No. 71-1607 Summary Calendar.,71-1607 Summary Calendar. |
| Parties | HAMILTON BROTHERS, INC., Plaintiff-Appellee, v. Edmund G. PETERSON, Defendant-Appellant, v. MARINE BANK & TRUST COMPANY, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
John P. Corcoran, Jr., Tampa, Fla., for defendant-appellant.
James E. Lehan, Tampa, Fla., for Marine Bank & Trust.
Joseph L. Thury, Tampa, Fla., for Hamilton Bros., Inc.
Before COLEMAN, SIMPSON and MORGAN, Circuit Judges.
Edmund G. Peterson (Peterson) here appeals from an adverse judgment entered by the district court, sitting without a jury. We reverse, and remand the cause with directions to dismiss the suit for lack of jurisdiction.
The plaintiff-appellee, Hamilton Brothers, Inc., (Hamilton) is a Florida corporation. The defendant-appellant, Edmund G. Peterson, at all times critical here was a Mexican resident.
On or about November 28, 1968, the M/V DON EMILIO B, owned by Hamilton, was enroute from Tampa, Florida, to Cozumel, Mexico, when it ran aground on reef off the coast of Quintana Roo, Mexico. The complaint alleged that on the dates of December 11-12, 1968, Peterson telegraphed an offer from Mexico to Hamilton in Tampa, Florida, to purchase the vessel, "as is-where is", and that the offer was accepted by return telegram from Hamilton to Peterson in Mexico. The bill of sale was to be delivered to Peterson's attorney, Hall, in Dallas, Texas. Peterson caused $15,000.00 to be deposited in the Marine Bank and Trust Company, in Tampa, Florida (Marine Bank), to be released upon the written approval of Hall after receipt and inspection of the bill of sale. No escrow agreement as to the $15,000.00 held by the Marine Bank was ever executed because the attorneys for the parties became embroiled in a controversy over the legal import of the telegrams and as to whether the vessel was free and clear of liens and encumbrances. Upon the refusal of Hall to accept a proffered bill of sale and release to Hamilton the $15,000.00 held by the Marine Bank, Hamilton brought suit in the court below under the diversity jurisdiction for specific performance of the claimed completed offer of purchase and sale of the vessel. The Marine Bank was enjoined from releasing the $15,000.00. Service upon Peterson as a non-resident doing business in Florida as to a transaction connected with the business venture was attempted under the Florida long-arm statute, F.S.A. 48.181,1 by serving the Secretary of State of Florida. The district court overruled Peterson's motion under Rule 12, F.R. Civ.P., to dismiss the action for lack of jurisdiction over the person and insufficiency of service of process. The motion was supported by Peterson's affidavit.
No counter-affidavit was filed by the plaintiff, although as pointed out by the appellee the lower court was free to consider the conclusionary allegations of the verified complaint alleging that Peterson was "doing business in Florida". Peterson was required to answer and the case proceeded to trial on the complaint and Peterson's answer and counter-claim for the return of his $15,000.00. It was tried before the court without a jury and resulted in a judgment for Hamilton, supported by Findings of Fact and Conclusions of Law, for $17,900.00 plus interest and costs. This represented the agreed price for the vessel and $2900.00 for a truck which was aboard the vessel and was, said the trial court's Finding No. 18, "cannibalized or lost because of the negligence of Peterson and his crew". This appeal followed.
We do not reach the merits on the appeal. Rather, we reverse with directions to dismiss the complaint for lack of jurisdiction. The Florida long-arm statute, conceding that it should be construed as broadly as is consistent with due process, Phillips v. Hooker...
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