Waldrip v. Dyal Sales Co., Inc., AT-129

• Citation: 436 So.2d 418
• Decision Date: 23 August 1983
• Docket Number: No. AT-129,AT-129
• Parties: Thomas J. WALDRIP and Warren P. Earp, Appellants, v. DYAL SALES CO., INC., a Florida corporation, Appellee.
• Court: Court of Appeal of Florida (US)

Page 418

436 So.2d 418

Thomas J. WALDRIP and Warren P. Earp, Appellants, v. DYAL SALES CO., INC., a Florida corporation, Appellee.

No. AT-129.

District Court of Appeal of Florida First District.

Aug. 23, 1983.

Donald L. Braddock, of Howell, Liles, Braddock & Milton, Jacksonville, for appellants.

S. Gordon Blalock, of Blalock, Holbrook & Akel, P.A., Jacksonville, for appellee.

WIGGINTON, Judge.

Appellants appeal the trial court's order denying their motions to dismiss appellee's amended complaint on the ground of lack of in personam jurisdiction. We affirm.

Appellee company's amended complaint alleges that appellants were salesmen for the company from 1976 until their resignation, that in the course of their employment with the company, they operated, conducted, engaged in, or carried on a business or business venture in Florida or had an office or agency in Florida in connection with their employment and that the cause of action sued upon arose out of their employment activities in Florida. The complaint further alleges that while employed by the company, appellants intentionally plotted to set up their own business and take the company's established accounts with them, wrongfully appropriating company files and records upon their termination on July 1, 1982. The sketchy record before us includes a letter dated June 27, 1982, prepared by appellants and written on "Earp & Waldrip Sales Co." letterhead to a company customer soliciting the account and requesting the customer to permit appellants' new business to represent them in the future and stating that the main office of appellants' new business would be located in Atlanta, Georgia, with appellant Waldrip continuing to operate out of Birmingham, Alabama.

An affidavit filed by appellant Earp, in support of his motion to dismiss, stated that during his association with the Dyal company, he was an independent contractor, lived and worked exclusively in the state of Georgia and received his compensation in Georgia by mail from the company. Waldrip filed no affidavit in support of his motion to dismiss.

Marvin Dyal, president of the company, filed affidavits as to both appellants stating that Waldrip originally worked for the company in Jacksonville, but in 1979 he was transferred to Birmingham, Alabama; even after his transfer, Waldrip as well as Earp visited the Jacksonville office on numerous occasions; the company acted as a home office and agency for appellants during the course of their employment, taking messages for appellants' customers and for manufacturers, and processing orders from appellants' customers in the amount of an average of twenty-five per week during the course of their employment; the Jacksonville office...