Unger v. Publisher Entry Service, Inc.

• Decision Date: 13 August 1987
• Docket Number: No. 86-1946,86-1946
• Citation: 12 Fla. L. Weekly 2000,513 So.2d 674
• Parties: 12 Fla. L. Weekly 2000 Robert E. UNGER, et al., Appellants, v. PUBLISHER ENTRY SERVICE, INC., et al., Appellees.
• Court: Florida District Court of Appeals

Page 674

513 So.2d 674

12 Fla. L. Weekly 2000

Robert E. UNGER, et al., Appellants, v. PUBLISHER ENTRY SERVICE, INC., et al., Appellees.

No. 86-1946.

District Court of Appeal of Florida Fifth District.

Aug. 13, 1987.

Rehearing Denied Oct. 5, 1987.

Joseph C. Whitelock, of Zewadski & Whitelock, P.A., St. Petersburg, for appellants.

Kevin J. Carden, of Lawrence D. Johnson & Associates, Orlando, for appellees.

ORFINGER, Judge.

The defendants appeal an order denying their motion to dismiss for lack of jurisdiction. The issue on appeal is whether the defendants may be subjected to in personam jurisdiction under Florida's long-arm statute. We affirm.

In determining whether long-arm jurisdiction is appropriate in a given case, two inquiries must be made. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient "minimum contacts" are demonstrated to satisfy due process requirements. See Pacific Telephone and Telegraph Co. v. Geist, 505 So.2d 1388 (Fla. 5th DCA 1987); American Vision Center v. National Yellow Pages Directory Services, 500 So.2d 642 (Fla. 2d DCA 1986). By affidavit in support of a motion to dismiss, the defendant may contest the jurisdictional facts on which the complaint is based. The burden then shifts back to the plaintiff to substantiate by affidavits or other competent proof the jurisdictional allegations of the complaint. If the allegations of jurisdictional facts remain undisputed, they must be taken as true for the purpose of resolving the jurisdictional question. Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla.1977).

The jurisdictional facts alleged in the complaint here are undisputed. The motion to dismiss merely asserts that the facts as alleged fail to assert a jurisdictional basis for proceeding against the defendants, who are California residents. Therefore, taking the allegations as true, the complaint must first be examined to determine whether sufficient jurisdictional facts have been alleged to bring the action within the ambit of the statute. The complaint alleges, in substance, that the defendants, through a Florida agent, entered into a contract with the plaintiff in Orange County, Florida, whereby the plaintiff, in Florida, would process publication subscription orders for defendants, and submit the processed and typed orders to Publisher's Certified Service; that defendants were to pay for these services in Orange County, Florida where the services were performed; that plaintiff performed the services required of it but that defendants had failed to make payment as agreed.

The complaint clearly alleges the breach of an agreement that payment was to be made in Florida. However, even where there is no such agreement, the legal presumption that a debt is to be paid at the creditor's place of business "is sufficient to satisfy the language of Florida's long-arm provision that refers to contractual acts 'required' to be performed in Florida." Kane v. American Bank of Merritt Island, 449 So.2d 974 (Fla. 5th DCA 1984). See also Engineered Storage Systems, Inc. v. National Partitions & Interiors, Inc., 415 So.2d 114 (Fla. 3d DCA 1982); Guritz v. American Motivate, Inc., 386 So.2d 60 (Fla. 2d DCA 1980). The allegations of the complaint are sufficient to bring the action within the ambit of section 48.193(1)(g), Fla.Stat. (1985). ¹

Appellants do not specifically raise the due process issue, but the undisputed allegations of the complaint establish sufficient minimum contacts to pass constitutional muster. To satisfy the minimum contacts test, it is necessary that the defendant's conduct and connection with a foreign state be such that the defendant should reasonably anticipate being hailed into court there. Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The defendant must purposefully avail itself of the privilege of conducting activities within the foreign state, thus invoking the benefits and protections of the laws of that state. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Finally, where a contractual obligation forms the basis of the court's assertion of long-arm jurisdiction, the court must evaluate the parties' prior negotiations and contemplated future consequences, the terms of the contract, and the parties' actual course of dealing to determine whether a defendant purposely established minimum contacts within a forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Here, by entering into a contract through its agent in Florida, for services to be performed in Florida, the defendant purposely availed itself of the privilege of conducting activities within Florida, thus invoking the benefits and protections of its law. Surely, the defendants would have sought the protection of Florida law had the plaintiff not performed as promised, or had performed negligently. Under these circumstances, it was reasonably foreseeable that the defendant would be hailed into Florida courts for failing to perform its contractual duties. It is this conduct and connection with Florida, in addition to the contractual obligation to render payments in this state, that establishes the minimum contacts necessary to assume jurisdiction over the defendant. See also Lacy v. Force V. Corp., 403 So.2d 1050 (Fla. 1st DCA 1981). Thus the application of section 48.193 here satisfied the requirements of the due process clause of the Fourteenth Amendment of the United States Constitution.

Neither Pacific Telephone and...