AMERICAN BASEBALL CAP, INC. v. DUZINSKI

BOYER, Judge.

Appellee, Andrew Duzinski, one of the plaintiffs below, was severely injured when struck in the head by a pitched baseball while wearing a protective helmet allegedly manufactured by appellant. Appellees Henry Duzinski and Irene Duzinski are the parents of Andrew Duzinski. They filed suit in the Circuit Court of Okaloosa County, alleging that defendant, appellant here, was subject to service of process under Florida's "long-arm statutes", specifically F.S. 48.161, 48.181 and 48.182. Appellant filed a motion to dismiss based upon lack of jurisdiction over the person, insufficiency of process and insufficiency of service of process, which motion was denied. The order of denial is the subject of this interlocutory appeal.

Before considering this case on its merits we feel constrained to call to the attention of the attorneys for the parties a group of rules promulgated and adopted by the Supreme Court of Florida governing the prosecution of appeals in civil cases, known as Florida Appellate Rules, 1962 Revision. (Rule 1.2, FAR) Rule 3.7 relates to briefs, form, contents, and filing thereof. Rule 3.7, subd. f(3) provides that the appellant's main brief shall contain a statement of the case and of the facts and points involved. Subsection (4) of that rule further provides that the "argument section" of the appellant's brief "shall contain a division for each of the points involved. Specific assignments of error from which the points argued arise should be stated, and if any reference to the original record or appendix is made, the page should be given."

Rule 3.7, subd. g provides that the appellee's brief shall be prepared in the same manner as the brief of appellant and in addition thereto shall contain:

Rule 4.2, subd. e provides that briefs incident to interlocutory appeals, except as to time of service, "shall be prepared, filed and served in accordance with Rule 3.7".

Sub judice neither the brief of appellant nor of appellees contains any statement of facts, as required by the rule nor is there any indication of the "specific assignments of error from which the points argued arise". Most vexing, however, is appellees' failure to present an "argument on each point presented by appellant". (Rule 3.7, subd. g(3)) Instead of responding to the arguments presented by appellant on the points raised by appellant, appellee has ignored appellant's points and the arguments in support thereof and has gone off on a tangent resulting in the points raised in each brief hanging in the air like Haley's Comet. Such unorthodox procedure, completely contrary to the provisions of the rules in such cases made and provided, has rendered our task of review extremely difficult and cumbersome. If appellees desired to present additional points the rule makes specific provision therefor. However, the presentation of new points by appellees does not excuse failure to respond to points raised and argued in appellant's brief.

Further, the following of the rules relative to including in the briefs of each party a statement of facts would be most helpful to the Court in disposition of the appeal.

In the February 1955 Florida Bar Journal there was published a guide for the preparation of briefs under rules substantially similar to those now in effect. Attorneys handling appellate practice would do well to harken back to that guide.

Turning now to the issues by us to be resolved:

First, may affidavits reciting facts dehors the record be considered by the trial judge in passing upon matters relating to jurisdiction. We hold that they may. However, such affidavits, if they are to be considered by the trial judge, must meet essentially the same requirements as affidavits relative to determination of motions for summary juddgment, viz: They shall be made on personal knowledge, shall set forth only such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Affidavits predicated upon inadmissible hearsay should not be utilized. (See Viking Superior Corporation v. W.T. Grant Company, Fla.App.1st 1968, 212 So.2d 331; Young Spring & Wire Corp. v. Smith, Sup.Ct.Fla. 1965, 176 So.2d 903; Producers Fertilizer Company v. Holder, Fla.App.2nd 1968, 208 So.2d 492; Page v. Staley, Fla. App.4th 1969, 226 So.2d 129 and Lake v. Konstantinu, Fla.App.2nd 1966, 189 So.2d 171)

Our examination of the record before us reveals that there was no competent evidence before the trial judge that appellant was doing business in the State of Florida at the time the subject helmet was manufactured and sold or at the time of the accident giving rise to this controversy. Thus, we are presented squarely with the following point:

An excellent discussion of Florida's "long-arm statutes" is found in an opinion of our sister court of the Fourth District in Youngblood v. Citrus Assoc. of N.Y. Cotton Exch., Inc., Fla.App.4th 1973, 276 So.2d 505, wherein it is stated:

Statutes providing for substituted service must be strictly construed and one seeking to effect service thereunder has the burden of presenting facts which clearly justify the applicability of the statute. (Florida Investment Enterprises, Inc. v. Kentucky Co., Fla.App.1st 1964, 160 So.2d 733; Fawcett Publications, Inc. v. Brown, Fla.App.2nd 1962, 146 So.2d 899; Fawcett Publications, Inc. v. Rand, Fla.App.3rd 1962, 144 So.2d 512; Wm. E. Strasser Construction Corp. v. Linn, Sup.Ct.Fla. 1957, 97 So.2d 458; Young Spring & Wire Corp. v. Smith, supra; Zirin v. Charles Pfizer & Co., Sup.Ct.Fla. 1961, 128 So.2d 594; Viking Superior Corporation v. W.T. Grant Company, supra; and Eder Instrument Co. v. Allen, Fla.App.3rd 1971, 253 So.2d 902)

Florida Statute 48.181 (Florida Statutes 1971) reads (insofar as material to the issues herein involved) as follows:

The record before us clearly reveals that the appellees failed to prove that appellant, prior to the happening of the event giving rise to this action, operated, conducted, engaged in, or carried on a business or business venture in this State or had an office or agency in the State. (F.S. 48.181(1)) They also failed to prove that appellant, prior to said event, sold, consigned, or leased any tangible or intangible personal property, through brokers, jobbers, wholesalers or distributors to any person, firm or corporation in the State. (F.S. 48.181 (3)) Appellees do not even claim that appellant had or has a resident agent or officer in the State. (F.S. 48.181(2))

It is noted that the statute (48.181(1)) specifically restricts service upon the Secretary of State to actions or proceedings "arising out of any transaction or operation connected with or incidental to the business or business venture".

The Supreme Court of Florida in Zirin v. Charles Pfizer & Co., supra, considering a factually similar case arising under former statute F.S. 47.171, a predecessor of F.S. 48.081 Florida Statutes, 1971, said:

In Giannini Controls Corporation v. Eubanks, Sup.Ct.Fla. 1966, 190 So.2d 171, the Supreme Court considered former Florida Statute 47.16, the predecessor of F.S. 48.181, here involved, and there, discussing Zirin v. Charles Pfizer & Co., supra, said:

The Supreme Court of Florida again, in Illinois Central Railroad Company v. Simari, Sup.Ct.Fla. 1966, 191 So.2d 427, discussing the same statutes as heretofore mentioned (former F.S. 47.17, the predecessor of F.S. 48.081, F.S. 1971; and former F.S. 47.16, the predecessor of F.S. 48.181, Florida Statutes 1971) held that those statutes were intended to apply "only to obligations or causes of action which arose out of the activities of the corporation in the State", resting their decision on the due process provision of the Constitution of the United States.

In Manus v. Manus, Fla.App. 4th 1966, 193 So.2d 236, our sister court of the Fourth District said:

(For other cases holding that F.S. 48.181, Florida Statutes 1971, is applicable only to suits resulting from the foreign corporation's activities within the State, see Viking Superior Corporation v. W.T. Grant Company, supra; DeVaney v. Rumsch, Sup.Ct.Fla. 1969, 228 So.2d 904 and Eder Instrument Co. v. Allen, Fla. App.3rd 1971, 253 So.2d 902, and the numerous cases and authorities therein cited)

Appellees urge that although they failed to prove that appellant was doing business in the State of Florida, within the meaning of F.S. 48.181, Florida Statutes 1971, at the time of the incident giving rise to the cause of action, nevertheless upon it being proven that appellant subsequently commenced doing business in the State the statute became applicable, and the appellant subject to service of process thereunder. Appellees' contentions are erroneous in two respects: First, as above stated, in order for a foreign corporation to be subject to service of process under the subject statute it is necessary that the suit in which service is sought have arisen out of the corporation's activities or business in the State. Obviously, if the corporation was not engaged in any activities or business in the State then the cause of action arising in the State could not have resulted therefrom. Second, several of the cases above cited dealt with service of process upon an agent or officer of the foreign corporation while in the State (F.S. 48.081). (See Youngblood v. Citrus Assoc. of N.Y. Cotton Exch., Inc., supra; Manus v. Manus, supra; Illinois Central Railroad Company v. Simari, supra and Zirin v. Charles Pfizer & Co., supra) A fortiori, if service on an agent or officer of a foreign corporation found and served in the State pursuant to F.S. 48.081 (formerly F.S. 47.17) is insufficient to vest jurisdiction in our courts of a suit or proceeding based on a cause of action which did not arise out of the corporation's business or activities in the State, then a subsequent commencement of doing business in the State after accrual of the cause of action cannot afford a basis for substituted service under Florida Statute 48.181 (formerly F.S. 47.16).

We therefore hold that a foreign corporation that was not doing business in the State of Florida at the time of the act complained of but which subsequently commenced doing business in this State and was doing business in this State at the time suit was filed, is not subject to service of process pursuant to Florida Statute 48.181.

Appellees next contend that even if service could not be effected pursuant to F.S. 48.181, Florida Statutes 1971, nevertheless service was properly effected pursuant to Florida Statute 48.182, Florida Statutes 1971. This exact point was considered in an excellent and well reasoned opinion written by Judge Cross speaking for our sister court of the Fourth District in Youngblood v. Citrus Assoc. of N.Y. Cotton Exch., Inc., supra. We have already quoted from a portion of that opinion. However because of the factual similarities and the excellence of the opinion we feel justified in quoting further therefrom:

Florida Statute 48.182 is inapplicable sub judice for a further reason: The accident giving rise to this controversy occurred on June 13, 1969. Florida Statute 48.182 was enacted as Chapter 70-90, Laws of Florida 1970, and became effective July 1, 1970. In Gordon v. John Deere Company, Sup. Ct.Fla. 1972, 264 So.2d 419, the Supreme Court answered a question certified to it by the United States Court of Appeals, Fifth Circuit, the question being as follows:

In answering the certified question the Supreme Court said:

Our examination of the record reveals that appellant made a prima facie showing that it was not amenable to substituted service of process under Florida's "long-arm statutes." Upon such showing the burden shifted to appellees to support the allegations of their complaint and to clearly show facts sufficient to sustain the propriety of the substituted service of process sought. (Viking Superior Corporation v. W.T. Grant Company, supra)

We do not here hold that appellees cannot by appropriate proof (see Viking Superior Corporation v. W.T. Grant Company, supra) meet their burden of proof. We only hold that they have not done so. In the absence of a showing that the complaint is defective or that appellant has been or will be in some manner prejudiced, appellees should be afforded a further opportunity, within the guidelines of this opinion and the cases herein cited, to again attempt service of process upon appellant. (See DeVaney v. Rumsch, supra)

Reversed and remanded for further proceedings consistent herewith.

RAWLS, C.J., concurs.

McCORD, J., concurring specially.

McCORD, Judge (concurring specially).

In Fisher v. Premiere Realty Company, Inc., Fla.App.(1st), 298 So.2d 447, we stated it was our view that it is the public policy of the State of Florida that its long arm statute reach as far as the United States Constitution permits. In that statement, we agreed with a similar statement of the U.S. Court of Appeals, 5th Circuit, in its opinion in Delray Beach Aviation Corporation v. Mooney Aircraft, Inc., 332 F.2d 135. Insofar as the quotation contained in Judge Boyer's above opinion from the Fourth District Court of Appeal's opinion in Youngblood conflicts with our statement in Fisher, I disagree with the Fourth District opinion. In all other respects, I agree with Judge Boyer's opinion.