Jones v. Jack Maxton Chevrolet, Inc., BF-388

• Decision Date: 12 February 1986
• Docket Number: No. BF-388,BF-388
• Parties: 11 Fla. L. Weekly 403 Suzanne JONES, Appellant, v. JACK MAXTON CHEVROLET, INC., Appellee.
• Court: Florida District Court of Appeals

Page 43

484 So.2d 43

11 Fla. L. Weekly 403

Suzanne JONES, Appellant, v. JACK MAXTON CHEVROLET, INC., Appellee.

No. BF-388.

District Court of Appeal of Florida First District.

Feb. 12, 1986.

Rehearing Denied March 21, 1986.

Jack M. Ross of Birr, Bryant, and Saier, Gainesville, for appellant.

William C. O'Neal and John P. O'Neal, Gainesville, for appellee.

BARFIELD, Judge.

This case arose as the result of a criminal incident in which one James Alden allegedly kidnapped, threatened, robbed, assaulted and injured Suzanne Jones, the appellant. Appellant was apparently locked in her car at the time of the incident, but Alden gained access to the car by means of a key which was provided to him by a Florida Chevrolet dealer, Gary Massey Chevrolet, Inc., after he had obtained the "key number" for the automobile from the Ohio automobile dealer, Jack Maxton Chevrolet, Inc., appellee. Appellant sued both dealers, asserting personal jurisdiction over appellee under section 48.193(1)(f)2., Florida Statutes. Her complaint pled the basis for service of process on appellee essentially in the language of the statute, pursuant to Florida Rules of Civil Procedure 1.070(i). ¹

The trial court granted appellee's motion to dismiss for lack of jurisdiction and insufficient service of process, with leave to amend the complaint. The trial court noted appellant's position that she had precisely followed the requirements of Rule 1.070(i), but found that a construction of the rule "which permits the exercise of jurisdiction by a court without requiring pleadings of ultimate fact to support the legal conclusions contained in at least a portion of 'long arm' statute" would unconstitutionally violate the "minimum contacts" requirements of Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla.1977). Appellant twice amended her complaint, alleging jurisdiction under section 48.193(1)(f), and also alleging that the court had "in rem" jurisdiction over appellee's insurer's obligation to defend and indemnify appellee. In its final order dismissing with prejudice appellant's second amended complaint, the trial court found that no allegations of significance had been added to the complaint to cause the court to alter its position as stated in its earlier order, and rejected appellant's alternate theory of "in rem" jurisdiction as having no legal basis in Florida. We affirm the dismissal of the complaint for lack of jurisdiction, but not for the precise reasons stated by the trial court.

Although the question has apparently been overlooked by both parties and the trial court, appellant may not allege jurisdiction under section 48.193(1)(f)2., because this subsection was intended to provide jurisdiction over foreign manufacturers or dealers who place into the stream of commerce defective products which cause injury to persons or property within the State of Florida. Electro Engineering, 352 So.2d at 864. Appellant's cause of action is not for an injury caused by a defective product, but for injuries which proximately resulted from the negligence of a foreign corporation. Her automobile was merely the situs of the incident. This is not the sort of situation contemplated by this subsection of the long arm statute. ² There is no indication, however, that the trial court based its order dismissing the count against appellee upon this determination. Instead, the court found that the allegations of the complaint, notwithstanding that they complied with the requirements of Rule 1.070(i), did not comply with the "minimum contacts" requirement of International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and its progeny, including Electro Engineering, and were therefore insufficient. ³

In Elmex Corporation v. Atlantic Federal Savings and Loan Association of Fort Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976), the court set out the distinction between a plaintiff's burden of pleading and a plaintiff's burden of proof when he seeks to invoke the provisions of the statutes authorizing service on nonresidents of Florida. The court observed that a defendant may challenge the legal sufficiency of the pleading by filing a motion to dismiss or abate on the ground of lack of jurisdiction over the person, but that

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.

325 So.2d at 61. A defendant seeking to present and argue factual matters not yet in the record is required to support the motion to dismiss with an affidavit or other proof. If this supporting proof contravenes allegations made in the complaint,

[T]he issue then becomes "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....

Competent proof presented by a plaintiff may be evidenced by a sworn affidavit either reciting matters substantially alleged in the complaint or asserting with particularity specific facts which support a general allegation in a complaint.

Id. at 62.

The Committee Note to Rule 1.070(i) indicates that the subdivision was added to eliminate pleading evidentiary facts for long arm service of process, that it was not intended to change the distinction between pleading and proof enunciated in Elmex Corporation, and that it was intended to apply only to pleading, not proof. ⁴ In Dublin Company v. Peninsular Supply Company, 309 So.2d 207 (Fla. 4th DCA 1975), the court held that the long arm statute is drawn so that compliance with its requirements will more than satisfy the due process requirement of minimum contacts enunciated in International Shoe Company. In Horace v. American National Bank and Trust Company of Fort Lauderdale, 251 So.2d 33, 36 (Fla. 4th DCA 1971), the court set out the criteria for determining the outer limits of in personam jurisdiction:

First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state; second, the cause of action must derive from the defendant's activities there; third, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.

(emphasis in the original). In amending Rule 1.070, the Florida Supreme Court recognized that a complaint which pleads that products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in injury to persons or property within this state (thus tracking the language of section 48.193(1)(f)2.) fulfills the "minimum contacts" requirement, to the extent that the sufficiency of the pleadings are challenged. ⁵ Of course, where the proof submitted in support of the defendant's motion to dismiss contravenes this allegation, the plaintiff has the burden of proving the allegation, by affidavit, deposition or other proof.

As noted earlier, appellant may not, under the circumstances, plead...