Newton v. Bryan
| Decision Date | 26 May 1983 |
| Docket Number | No. 82-1260,82-1260 |
| Citation | 433 So.2d 577 |
| Parties | Earl NEWTON, et al., Appellants, v. James B. BRYAN, III, Appellee. |
| Court | Florida District Court of Appeals |
Paul H. Bowen of Swann & Haddock, P.A., Orlando, for appellants.
Roger A. Kelly of Fishback, Davis, Dominick & Bennett, Orlando, for appellee.
The Newtons appeal from a non-final order denying their motion to abate for lack of personal jurisdiction. 1
Appellee Bryan was the owner of all of the common stock of a Georgia corporation located in Columbus, Georgia. The Newtons, residents of Georgia, negotiated for and purchased the stock in Georgia. As part of the consideration, they executed a promissory note for $100,000 payable in four semi-annual installments of $25,000. The note was payable to Bryan, a Florida resident, at his office in Orlando, Florida, or wherever Bryan so designated. Bryan subsequently assigned the note to the First National Bank of Columbus, Georgia, remaining liable to the bank for the first two payments. The Newtons made the first payment to the bank but failed to make the second payment. Bryan made the payment and demanded reimbursement from the Newtons. When the Newtons failed to pay Bryan filed suit against them in Orange County.
The Newtons filed a motion to abate for lack of personal jurisdiction. In support of their motion, Earl Newton filed an affidavit alleging that they were residents of Georgia, that they have not done any business in Florida, that they have not failed to do any act in Florida and are not otherwise subject to service of process issued by the circuit court. Bryan did not file any affidavits in support of jurisdiction.
Bryan obtained service over the Newtons under a "long-arm" statute, section 48.193, Florida Statutes (1981), which provides in part as follows:
(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:
* * *
* * *
(g) Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.
While both parties on appeal have discussed the essential elements and features of various types of contracts (express, implied and quasi-contracts), we conclude that the action is based on the failure to pay a promissory note and that the parties' respective rights and obligations are governed by the Florida Uniform Commercial Code. Under the code, Bryan had a breach of contract action against the Newtons. See §§ 673.413, 673.414, Fla.Stat. (1981).
The question then is whether the Newtons breached the contract by "failing to perform acts required by the contract to be performed in this state." The Newtons agreed to pay the note "at [Bryans] office in Orlando, Florida, or at such other place as [Bryan] may designate and notify the [Newtons]...." In his affidavit, Earl Newton stated that Bryan had designated his (Bryan's) attorney's office in Columbus, Georgia, for all correspondence including payment of the note. Bryan did not controvert this statement.
In testing jurisdiction under the long-arm statute, the plaintiff must initially allege in the complaint sufficient jurisdictional facts to show compliance with the statute. The burden then shifts to the defendant to make a prima facie showing of the inapplicability of the long-arm statute. Thereafter, the plaintiff is required to substantiate the jurisdictional allegations. Pace Carpet Mills v. Life Carpet & Tile Co., 365 So.2d 445 (Fla. 4th DCA 1978). If the plaintiff fails to supply affidavits or other proof to substantiate the...
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