Toffel v. Baugher, 1717

• Decision Date: 23 December 1960
• Docket Number: No. 1717,1717
• Citation: 125 So.2d 321
• Parties: Harry TOFFEL, Trustee, Appellant, v. Harold P. BAUGHER and Ruth D. Baugher, husband and wife, Kenneth L. Baugher and Kathryn L. Baugher, husband and wife, Appellees.
• Court: Florida District Court of Appeals

Page 321

125 So.2d 321

Harry TOFFEL, Trustee, Appellant, v. Harold P. BAUGHER and Ruth D. Baugher, husband and wife, Kenneth L. Baugher and Kathryn L. Baugher, husband and wife, Appellees.

No. 1717.

District Court of Appeal of Florida, Second District.

Dec. 23, 1960.

Edward A. Stern, Pallot, Silver, Pallot, Stern & Mintz, Miami, for appellant.

Lewis E. Purvis, Sumter Leitner, Arcadia, for appellees.

ALLEN, Chief Judge.

The appellant, as plaintiff in the lower court, filed a complaint for damages alleging that the appellee-defendants or their agents had misrepresented certain facts regarding a large tract of land which defendants had sold to plaintiff. The plaintiff attempted service by substituted service over the defendants, who are residents of Illinois, under the provisions of sec. 47.16, Florida Statutes, F.S.A. The defendants moved to dismiss the complaint on the ground of lack of jurisdiction, insufficiency of process, and insufficiency of service of process. The lower court granted the motion to dismiss with leave to amend which the plaintiff did. The defendants again moved to dismiss the complaint on the same grounds as their first motion plus the ground that the cause of action was 'insufficient to come within the provisions of sec. 47.16, of the Florida Statutes [F.S.A.].' The lower court then entered an order providing in part:

'Ordered, and Adjudged that the Plaintiff's Amended Complaint in the above styled cause be, and the same is hereby dismissed based on grounds #1 and #4 of Motion.

'Done and Ordered in Chambers in the City of Arcadia, DeSoto County, Florida, this 31st day of December, A.D. 1959.'

The plaintiff has appealed from this order.

The applicability of sec. 47.16, Florida Statutes, F.S.A., is the sole issue presented by the appellant. The defendants inherited 1,685 acres of land, located in DeSoto County, upon the death of their father. The defendants are residents of Illinois. During 1956, Lewis Purvis obtained an option to purchase the land which was subsequently assigned to the plaintiff. The option to purchase was prepared in Florida but executed by the defendants in Illinois. The plaintiff subsequently exercised the option and a deed was prepared in Florida and signed and executed by the defendants in Illinois. The plaintiff then executed a purchase money mortgage in Florida and delivered it to the defendants in Illinois.

The plaintiff filed a suit for rescission and cancellation of the contract with the defendants. The trial court dismissed the complaint and the plaintiff appealed to this court. This court, in 111 So.2d 290, affirmed but without prejudice to the defendants' right to bring an action for damages. The plaintiff then filed the instant action.

The appellant states the question involved as follows:

'Does the sale by a non-resident owner, through Florida agents, and on terms negotiated within the State of Florida, of a tract of Florida real estate, and the taking back of a recorded purchase money mortgage and installment note designating a Florida bank as collection agent, constitute a 'business or business venture' within the meaning and scope of sec. 47.16 of Florida Statutes [F.S.A.]?'

The Supreme Court of Florida in the case of State ex rel. Weber v. Register, Fla.1953, 67 So.2d 619, 620, held that the act of out of state owners of a Florida orange grove in listing the grove with a real estate broker in Florida for sale was not a 'transaction or operation connected with or incidental to' such owners' business in Florida of maintaining and operating of orange grove, within statute authorizing service upon nonresidents by service of process on Florida Secretary of State in any action, suit or proceeding against nonresidents arising out of any transaction or operation connected with or incidental to Florida business or business venture, but that nonresidents' purchase of grove and listing of it for sale amounted to engaging in a business venture within statute, and that service could be effected on such nonresident owners by service upon the Secretary of State.

The plaintiff, in State ex rel. Weber v. Register, supra, alleged that the nonresidents, Weber and his wife, had purchased an orange grove in Florida; that they had conducted and operated the same as a business in Polk County; that while owning and operating it, they listed it with a real estate broker for sale; that the real estate agent had found a purchaser and the Webers had refused to sell; and that therefore the agent was entitled to a commission. The Court, in its opinion, said:

'There is a vast difference between the words 'a business' and the words 'business venture' as used in Section 47.16, supra. One may engage in a 'business venture' without operating, conducting, engaging in or carrying on 'a business.' The listing of the grove for sale is proof of the fact that the purchase thereof was a 'business venture.' Moreover, the act of listing the property for sale amounted to a transaction 'connected with or incidental to' the 'business venture' which the Webers initiated when they acquired the grove.'

Two of the Supreme Court Justices dissented in the Weber case.

Subsequently, the Supreme Court, in the case of Wm. E. Strasser Const. Corp. v. Linn, Fla.1957, 97 So.2d 458, 459, held that where nonresident defendants acquired land in Florida and entered into a contract for the construction of an apartment building thereon with the alleged intent of renting it to tenants for production of income for the benefit of defendants, defendants, under such circumstances, would be deemed to have engaged in a 'business venture' in the state, sufficient to subject them to jurisdiction of a state court obtained by substituted service on the Secretary of State, in lieu of personal service.

Mr. Justice Thornal, in writing the opinion of the Court, said:

'Section 47.16, supra, relates to non-residents who 'operate, conduct, engage in, or carry on a business or business venture, in the state * * *.' The statute further provides in effect that service of process may be obtained upon such non-residents by the service of process on the Secretary of State of Florida * * *. The cited statute provides a method of substituted service of process in lieu of personal service. It is therefore necessary that one invoking the provisions of the statute carry the burden of presenting a situation that clearly justifies the application of the Act. Statutes of this nature are strictly construed and parties seeking to invoke them are required to bring themselves clearly within the provisions of the Act in order to render the substituted service of process effective against the defendants. Rorick v. Stilwell, 101 Fla. 4, 133 So. 609.

'We have also held that each case of this kind must be resolved on the basis of the facts revealed by the record in the particular case. While certain general principles may be said to prevail the application of these principles will be governed by the factual situation presented by a particular record. Mason v. Mason Products Company, Fla.1953, 67 So.2d 762.'

In the case of Matthews v. Matthews, Fla.App.1960, 122 So.2d 571, 573, this court held in a suit for an accounting where the plaintiff attempted to obtain service of process on a nonresident defendant by serving the Secretary of State, that allegations that the cause of action arose out of activities of the defendant in doing 'business' in Florida were sufficient to bring plaintiff within the...