Petition — Ryan v. Donnelly

in the

S up re me Co a ICHAEL RODAK. JR., CLERK

of the

United States

‘no. €7°1739

OCTOBER TERM, 1977

PAUL MARK RYAN,

ARTHUR T. MCMANMON, JAMES M. CONNOLLY

Trustees of the EDWARD C. DONNELLY, JR.

REVOCABLE TRUST,

Petitioners,

V.

MARY ELIZABETH DONNELLY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT

Samuel J. Powers, Jr.

James E. Tribble

2400 First Federal Building

One Southeast Third Avenue

Miami, Florida 33131

Attorneys for Petitioners

June 1978

CE IEE LEO IY CF DIDI, IEEE SLL ELT LOLOL EIT

INDEX

Page

I oot Cunt ues, Uli nsdenb nines 2

PY cilered¢hdedsdbuvesdbesacsctsdsecndes 3

EST Te ne Oe ee 4

Constitutional Provision Involved .................. 5

ei ceckducaveentesssececqsnss 6

Reasons for Granting the Writ ..................... 9

Ss ..cecccddctisd he pecdédseuksticdctunses 14

Appendix A (District Court of Appeals of Florida,

es Sa SE ra le pr App. |

(1) Opinion dated May 24, 1977............ App. |

(2) Order on Petition for Rehearing dated June

DT cecnctaddiudwliassaetadunenes’ is Anp. 3

Appendix B (Supreme Court of Florida) .......... App. 5

(1) Opinion dated January 9, 1978 .......... App. 5

(2) Order on Petition for Rehearing dated

PE DERE dawhicspadnecndeescsecans App. 7

Appendix C (Circuit Court for Dade County) ..... App. 8

INDEX ( Continued )

Page

(1) Order Denying Defendants’ Motion To

Dismiss and Motion to Quash .......... App. 8

Appendix D (Portions of Record Below Showing

How Federal Question was Raised) ........... App. 17

(1) Motion To Dismiss And Motion To Quash

Purported Service Of Process .......... App. 17

(2) Defendants’ Memorandum In Support Of

Motion To Dismiss And Motion To Quash

Purported Service Of Process .......... App. 20

(3) Portion of Brief of Appellants In the Dis-

trict Court of Appeal of Florida, Third

RE Del ane, ana BPG: an pie App. 48

AUTHORITIES

Cases: Page

AMBA Marketing Systems, Inc. v. Jobar

International, Inc.,

a ie onc dk chs CeGuas dh ecb ube cececess 10

Data Disc, Inc. v. Systems Technology Associates, Inc.,

oh ceca cuadueyenecgseeds oe bn 12

Hanson v. Denckla,

EN ss cle Oe Ae cebnckaneiaquls 7,9, 12

International Shoe Co. v. Washington,

pL Fae ee ny ere ey rer rr TT TT 9,12

McGee vy. International Life Insurance Company,

) ot ae eerie ee ee Tee 7, 12

National Geographic Society v. California Board of

Equalization,

SED srk 605 dbs. ce eus kk ddascunseagee 13

Pickens v. Hess,

No.-76-2098 (6th Cir. April 10, 1978) ........... 12

Shaffer v. Heitner,

SE ic caches cdnduuhed ie ive 7,9, 10, 12

Southern Machine Company, Inc. v. Mohasco

Industries, Inc.,

| ff Ee sah elk ta ie i 10, 12

AUTHORITIES (Continued )

Cases: Page

Thompson v. Ecological Science Corporation,

Gt FBG a occ cvevicecaccegesaset eee 10, 12

Uible v. Landstreet,

FOS FE ovccccccucéevtécessissue 10

Whittaker Corporation v. United Aircraft Corporation,

GB2 FAG CEG vc ccccnnccenccsssstaueeeee 12

Wilkerson v. Fortuna Corporation,

ie & Petter 12

Constitutional Provision:

Fourteenth Amendment, United States Constitution 4, 5,

6, 12, 13

Statute:

SOU. BL. GUEST .n cv vccscccceccasncuenneeenneeee 3

in the

Supreme Court

of the

United States

October Term, 1977

NO.

PAUL MARK RYAN,

ARTHUR T. MCMANMON, JAMES M. CONNOLLY

Trustees of the EDWARD C. DONNELLY, JR.

REVOCABLE TRUST

Petitioners,

v.

MARY ELIZABETH DONNELLY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT

The petitioners respectfully pray that a writ of cer-

tiorari issue to review the judgment and opinion of the

District Court of Appeal of Florida, Third District, en-

tered in the proceedings on May 24, 1977.

OPINIONS BELOW

The opinion of the Third District Court of Appeal, a

per curiam affirmance., is reported at 348 So.2d 970 and is

reproduced in Appendix A to this petition. The opinion of

the Supreme Court of Florida finding that it is without

jurisdiction to review the decision of the Third District

Court of Appeal ts reported at 357 So.2d 187 and is

reproduced in Appendix B to this petition. The order of

the Circuit Court for Dade County, which denied

petitioners’ motion to quash service of process and which

was reviewed by the Third District Court of Appeal, is not

reported but is reproduced in Appendix C to this petition.

JURISDICTION

The decision of the District Court of Appeal of

Florida, Third District, was entered on May 24, 1977, and

became final on June 29, 1977, when the petition for

rehearing was denied. See Appendix A. A petition to the

Supreme Court of Florida for a writ of certiorari was

denied on January 9, 1978, and a petition for rehearing

directed to the Supreme Court of Florida was denied on

March 10, 1978. See Appendix B. This petition for cer-

tiorari was filed within the time limit of 90 days. The

jurisdiction of this Court is invoked under 28 U.S.C.

$1257 (3).

QUESTION PRESENTED

The Third District Court of Appeal of Florida

affirmed an order of the Circuit Court of Dade County

holding that Florida courts have personal jurisdiction over

the non-resident petitioners in this case on the sole ground

that they are “doing business” in the state. The order of

the circuit court shows on its face, however, that all of the

uctivities of the petitioners allegedly constituting the doing

of business in Florida occurred after the respondent's

cuuse of action arose.

The question is whether the “minimum contacts” or

“fair forum” requirement of Section | of the Fourteenth

Amendment to the Constitution of the United States limits

a State court's long-arm jurisdiction over non-resident in-

dividuals to those causes of action that arise directly out of

the individuals’ activity in the state.

CONSTITUTIONAL PROVISION INVOLVED

Section | of the Fourteenth Amendment to the Con-

stitution of the United States provides in pertinent part as

follows: “[NJor shall any State deprive any person of life,

liberty, or property, without due process of law.”

STATEMENT OF THE CASE

This case originated upon the respondent's filing of a

complaint in Dade County, Florida, to obtain a dower in-

terest in certain assets held in trust in Massachusetts by the

petitioners, all of whom reside in and are residents of

Massachusetts. The complaint alleged that the assets held

by the petitioners were owned by the respondent's hus-

band at the time of his death in Florida or, alternatively,

that the trust is illusory, testamentary, and, therefore,

void,

The respondent served process upon the non-resident

petitioners by serving the Florida Secretary of State under

the color of authority of Florida’s “doing business” long-

urm statute and by serving two of the co-executors of the

estate of the respondent's decedent as agents of the

petitioners.

The petitioners filed a “*Motion To Dismiss And Mo-

tion To Quash Purported Service Of Process” based on the

ground, among others, that the Dade County Circuit

Court lacked jurisdiction over the persons of the

petitioners. Appendix D (1). The motion expressly stated

that the attempted service of process was totally insuf-

ficient to provide in personam or in rem jurisdiction of the

circuit court over the petitioners or the trust res and that

the exercise of jurisdiction by Florida courts over the

petitioners would violate Section | of the Fourteenth

Amendment to the Constitution of the United States.

Appendix D (1).

In support of the motion to quash service of process

the petitioners filed a memorandum of law specifically

arguing that the jurisdictional issue in the case is con-

trolled by Hanson v. Denckla, 357 U.S. 235 (1958). Appen-

dix D (2). (It should be noted that the motion was filed

before the Court's more recent decision in Shaffer v Heit-

ner, 433 U.S. 186 (1977).) One of the points made by the

petitioners in the argument was that this Court had dis-

tinguished Denckla from McGee v. International Life In-

surance Company, 355 U.S. 220 (1957), on the basis that

the cause of action in Denckla did not arise out of an act or

transaction consummated in the forum state, the same fac-

tual situation that exists in the present case. Appendix D

(2).

The Circuit Court for Dade County rejected the

petitioners’ argument by denying their motion. In a

lengthy order the circuit court set forth all of the acts that

it considered as evidence of the petitioners doing business

in Florida and held that it had personal jurisdiction over

the petitioners. Appendix C. All of these acts allegedly

constituting the doing of business in Florida, however, oc-

curred after the death of the respondent's decedent, which

was the moment at which the respondent's claim for dower

arose. That is, the respondent's cause of action could not

possibly have arisen out of the petitioners’ alleged ac-

tivities in the state.

The petitioners appealed to the Third District Court

of Appeal of Florida and argued primarily that Florida

courts could not obtain personal jurisdiction over the

petitioners because the respondent’s cause of action arose

before the petitioners were found by the trial court to be

doing business in the state either directly or through

agents. Appendix D (3). This again raised the due process

question before Florida courts.

The Third District affirmed the order of the circuit

court without opinion and the Supreme Court of Florida

decided that it was without jurisdiction. The present peti-

tion for certiorari was filed within 90 days of the Florida

Supreme Court's denial of a petition for rehearing.

REASONS FOR GRANTING THE WRIT

1. The decision below is not in accord with the

due process principles enunciated by this Court

in Hanson v. Denckla and Shaffer v. Heitner.

In Hanson v. Denckla, 357 U.S. 235, 251 (1958), this

Court stated that one of the reasons Florida courts did not

have in personam jurisdiction over the non-resident trustee

was that “*[t}he cause of action in this case is not one that

urises out of an act done or transaction consummated in

the forum State.” As to this point, the Court concluded

that “this suit cannot be said to be one to enforce an

obligation that arose from a privilege the defendant exer-

cised in Florida.” /d. at 252.

In Shaffer v. Heitner, 433 U.S. 186, 204 (1977), this

Court revisited the decision in /nternational Shoe Co. v.

Washington, 326 U.S. 310 (1945), and observed that “the

relationship among the defendant, the forum, and the

litigation, rather than the mutually exclusive sovereignty

of the State on which the rules of Pennoyer rest, became

the central concern of the inquiry into personal jurisdic-

tion.” (Footnote omitted.) The Court then proceeded to

apply this same standard of “contacts among the forum

State, the defendant, and the litigation” to an inquiry into

in rem jurisdiction. /d. at 207, 213.

Thus Hanson and Shaffer establish that an extremely

important element in determining whether due process re-

quirements for exercising long-arm jurisdiction have been

met is whether the plaintiff's cause of action arose out of

the non-resident defendant's activities in the forum state.

Furthermore, several United States Circuit Courts of Ap-

peal have interpreted Hanson, and would, presumably, in-

terpret Shaffer, as requiring that the cause of action arise

frou... the defendant's activities in the state. E.g.. AMBA

Marketing Systems, Inc. v. Jobar international, Inc., 55\

r.2d 784, 789 (9th Cir. 1977); Thompson v. Ecological

Science Corporation, 421 F.2d 467, 469 (8th Cir. 1970):

Southern Machine Company, Inc. v. Mohasco Industries,

Inc., 401 F.2d 374, 381 (6th Cir. 1968).

The decision of the Third District Court of Appeal of

Florida is not in accord with these due process principles.

By affirming the order of the Circuit Court for Dade

County, the Third District necessarily decided that the

respondent's cause of action need not have arisen out of

the non-resident petitioners’ activities in Florida for the

state's courts to exercise personal jurisdiction over the

petitioners. This follows because all of the petitioners’ ac-

tivities allegedly constituting the doing of business in

Florida occurred after the respondent's cause of action

urose,

To be more specific, the petitioners could not have

been doing business in Florida through their “direction,

operation, management, and control” of the business trust

at the time the respondent's cause of action for dower

arose, as declared by the trial judge (Appendix C,

paragraphs 4-7), because, according to the respondent's

own argument, none of the petitioners had any control

over the business trust until after the death of Edward C.

Donnelly on October 15, 1972. Prior to that point, their

ownership interest was merely as trustee-stockholders,

which is not sufficient to consider them as “doing

business” in the state. Uible v. Landstreet, 392 F.2d 467

(Sth Cir. 1968). The provision of the revocable trust upon

which the trial judge placed reliance to proclaim that the

petitioners legally had management control, not just

10

shareholder control, over the business trust did not, by its

own terms, take effect until after the death of Mr. Don-

nelly (Appendix C, paragraphs 5-6). And all of the ac-

tivities of the petitioners relied upon by the trial judge as a

basis for establishing their actual control of the business

trust took place after the death of Mr. Donnelly (Appen-

dix C, paragraph 7).

In the same manner, the petitioners could not have

been doing business in Florida through “transactions” by

and for the revocable trust itself at the time the respon-

dent’s cause of action arose, as stated by the trial judge

(Appendix C, paragraphs 8-9), because all of those

transactions took place well after the death of Mr. Don-

nelly. As a result, the respondent's cause of action could

not possibly have arisen from those transactions because

they simply had not yet been performed at the time the

respondent's cause of action arose.

Finally, the petitioners could not possibly have been

doing business in Florida through an agency relationship

with executors of the estate of Edward C. Donnelly, Jr. at

the time the respondent's cause of action arose, as stated

by the trial judge (Appendix C, paragraphs 10-13), because

the executors were not appointed and did not perform any

of their functions until after the death of Mr. Donnelly.

Consequently, the respondent's cause of action could not

have arisen out of any transaction or operation performed

by the alleged agents of the petitioners because those

alleged agents had not even been appointed, let alone

functioning, at the time of Mr. Donnelly’s death.

It is, therefore, evident that the Third district, in

affirming the order of the trial judge in this case, has exten-

ded the jurisdiction of Fiorida courts to include a suit not

arising out of the non-resident petitioners’ activities in the

state,

2. This Court has not directly decided the federal

question of substance raised by the decision

below and the circuit courts of appeal are in

conflict on the point.

Although this Court has established that an extremely

important element in determining whether due process re-

quirements for exercising long-arm jurisdiction have been

met is whether the plaintiffs cause of action arose out of

the non-resident defendant's activities in the forum state, it

has not specifically considered whether the cause of action

must arise Out of the activities of the defendant in the state.

See Shaffer v. Heitner, 433 U.S. 186 (1977); Hanson vy.

Denckla, 357 U.S. 235 (1958); McGee v. International Life

Insurance Co., 355 U.S. 220 (1957); International Shoe Co.

v. Washington, 326 U.S. 310 (1945).

Moreover, the circuit courts of appeal are currently in

conflict on this point. Compare Pickens v. Hess, No. 76-

2098 (6th Cir. April 10, 1978) and Southern Machine Com-

pany, Inc. v. Mohasco Industries, Inc., 401 F.2d 374 (6th

Cir. 1968) and Data Disc, Inc. v. Systems Technology

Associates, Inc., 557 F.2d 1280 (9th Cir. 1977) and

Thompson v. Ecological Science Corporation, 421 F.2d 467

(8th Cir. 1970) with Wilkerson v. Fortuna Corporation, 554

F.2d 745 (Sth Cir. 1977) and Whittaker Corporation v.

United Aircraft Corporation, 482 F.2d 1079 (1st Cir. 1973).

The Sixth and Ninth Circuits explicitly state, based upon

this Court’s opinions in Hanson v. Denckla, McGee, and

International Shoe, that any cause of action must arise out

of the non-resident’s activities in the state to meet the due

process requirement of the Fourteenth Amendment while

12

so

the Fifth Circuit just as clearly states, having argued by

analogy from this Court's decision in National Geographic

Society vy. California Board of Equalization, 430 U.S. 551

(1977), that the Fourteenth Amendment does not require

that the cause of action arise out of the defendant's ac-

tivities in the state.

13

CONCLUSION

For the foregoing reasons. this petition for a writ of

certiorari should be granted.

Respectfully submitted,

SAMUEL J. POWERS, JR.

JAMES E. TRIBBLE

BRADFORD SWING

BLACKWELL, WALKER, GRAY,

POWERS, FLICK & HOEHL

2400 First Federal Building

One Southeast Third Avenue

Miami, Florida 33131

(305) 358-8880

Attorneys for Petitioners

14

Appendix

APPENDIX A (1)

NOT FINAL UNTIL TIME EXPIRES

TO FILE REHEARING PETITION

AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1977

CASE NO. 77-431

PAUL MARK RYAN, ARTHUR T. McMANMON,

JAMES M. CONNOLLY, Trustees of the EDWARD C.

DONNELLY, JR... REVOCABLE TRUST dated

October 8, 1968,

Appellants,

vs.

MARY ELIZABETH DONNELLY,

Appellee.

Opinion filed May 24, 1977.

An Interlocutory Appeal from the Circuit Court of

Dade County, J. Gwynn Parker, Judge.

Blackwell, Walker, Gray, Powers, Flick & Hoehl and

James E. Tribble, for appellants.

Walton, Lantaff, Schroeder, Carson & Wahl and

Joan S. Buckley, for appellee.

App. |

Before BARKDULL. HAVERFIELD and

NATHAN, JJ.

PER CURIAM.

Affirmed.

APPENDIX A (2)

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1977

WEDNESDAY, JUNE 29, 1977

CASE NO. 77-431

PAUL MARK RYAN, et al..

Appellants,

VS.

MARY ELIZABETH DONNELLY,

Appellee.

Counsel for appellants having filed in this cause peti-

tion for rehearing, and same having been considered by the

court which determined the cause, it is ordered that said

petition be and it is hereby denied.

A True Copy

ATTEST:

Clerk, District Court of

Appeal, Third District

ce: James E. Tribble

Walton, Lantaff, etc.

App. 3

ple

(THE MANDATE IN THE ABOVE STYLED CAUSE

HAS TODAY BEEN ISSUED AND MAILED TO THE

CLERK OF THE CIRCUIT COURT IN AND FOR

DADE COUNTY, FLORIDA)

App. 4

APPENDIX B (1)

SUPREME COURT OF FLORIDA

MONDAY, JANUARY 9, 1978

CASE NO. 52,010

DISTRICT COURT OF APPEAL,

THIRD DISTRICT

DCA CASE NO. 77-431

PAUL MARK RYAN, ET AL.,

Petitioners,

VS.

MARY ELIZABETH DONNELLY,

Respondent.

This cause having heretofore been submitted to the

Court on Petition for Writ of Certiorari, jurisdictional

briefs and portions of the record deemed necessary to

reflect jurisdiction under Florida appellate Rule 4.5 c (6),

and it appearing to the Court that it is without jurisdiction,

it is ordered that the Petition for Writ of Certiorari be and

the same is hereby denied.

OVERTON, C. J.,. ADKINS, BOYD, ENGLAND and

SUNDBERG, JJ., concur

A True Copy

App. 5

TEST:

Sid J. White

Clerk Supreme Court.

By: Sara Griney

Deputy Clerk

sg

cc: Honorable Louis J. Spallone, Clerk

Honorable Richard P. Brinker, Clerk

Honorable J. Gwynn Parker, Judge

Messrs. Blackwell, Walker, Gray,

Powers Flick & Hoehl

Messrs. Walton, Lantaff, Schroeder

& Carson

App. 6

APPENDIX B (2)

[TITLE OMITTED}

{[FRIDAY, MARCH 10, 1978]

On consideration of the petition for rehearing filed by

attorneys for petitioners,

IT IS ORDERED by the Court that said petition be

and the same is hereby denied.

A True Copy

TEST:

Sid J. White

Clerk Supreme Court

By: Debbie Causseaux

Deputy Clerk

c

cc: Hon. Louis J. Spallone, Clerk

Hon. Richard P. Brinker, Clerk

Hon. J. Gwynn Parker, Judge

James E. Tribble, Esquire

of Blackwell, Walker, Gray,

Powers, Flick & Hoehl

Joan S. Buckley, Esquire

of Walton, Lantaff,

Schroeder & Carson

App. 7

a

APPENDIX C

IN THE CIRCUIT COURT OF THE IITH

JUDICIAL CIRCUIT IN AND FOR

DADE COUNTY, FLORIDA

CIVIL DIVISION

CASE NO. 75-7007

MARY ELIZABETH DONNELLY.

Plaintiff,

VS.

PAUL MARK RYAN, ARTHUR T. MCMANMON,

JAMES M. CONNOLLY, Trustees of the

EDWARD C. DONNELLY, JR. REVOCABLE TRUST

dated October 8, 1968,

Defendants.

ORDER DENYING DEFENDANTS’ MOTION

TO DISMISS AND MOTION TO QUASH

THIS CAUSE came on to be heard on Defendants’

Motion To Dismiss Plaintiffs Complaint and Motion to

Quash Service of Process, and the Court heard argument

of counsel for Plaintiff and Defendants. Having con-

sidered sume and having reviewed the pleadings, affidavits

and all memoranda of law and of fact submitted by the

parties, and being fully advised in the premises, the Court

miakes the following findings of fact:

I. Section 48.181(1), Florida Statutes, (1975),

provides for service of process on, and the consequent ac-

App. 8

quisition of personal jurisdiction over, nonresidents who

“operate, conduct, engage in, or carry on a business or

business venture in the state, or . . . have an office or

agency in the state... . in any action or proceeding. . .

arising out of any transaction or operation connected with

or incidental to the business or business venture. . .”.

2. Section 48.071, Florida Statutes, (1975), provides

for service of process upon agents of nonresidents who are

doing business within the state; Section 48.161, Florida

Statutes, (1975), provides a method of substituted service

of process to be utilized for nonresidents who are doing

business within this state.

3. Defendants, PAUL MARK RYAN, ARTHUR

T. MCMANMON, and JAMES M. CONNOLLY,

Trustees of the Edward C. Donnelly, Jr. Revocable Trust,

were duly and properly served pursuant to Section 48.071,

Florida Statutes (1975), by service on their agents, the Ex-

ecutors of the Estate of Edward C. Donnelly, Jr., through

whom Defendants are doing business within the state of

Florida; Defendants were also duly and properly served by

substituted service of process on the Secretary of State of

Florida, pursuant to Sections 48.161 and 48.181, Florida

Statutes (1975), since Defendants are nonresidents who

operate, conduct, engage in, or carry on a business or

business venture in this state, and have an agency in this

state, in regard to an action arising out of a transaction or

operation connected with or incidental to the business,

business venture, and/or agency in this state.

4. Defendants, Trustees of the Edward C. Donnelly,

Jr. Revocable Trust, are operating, conducting, engaging

in or carrying on a business or business venture in Florida

through their direction, operation, management, and con-

App. 9

trol of John Donnelly & Sons, a Massachusetts business

Trust (corporate entity), with a business office and head-

quarters in Miami, Florida.

5. Defendants, Trustees of the Edward C. Donnelly,

Jr. Revocable Trust, are the directors (“trustees”) of the

corporate entity, John Donnelly & Sons. This alone would

not be sufficient to give this Court jurisdiction over the

Defendants. However, Defendants, in their capacity and

by their authority as Trustees of the Revocable Trust, are

vested with the ultimate authority and control over the

business done by John Donnelly & Sons in Florida. Article

IX Section B of the Edward C. Donnelly, Jr. Revocable

Trust provides this authority in the following language:

After the death of the donor. . . in addition to

the powers conferred by law and the powers

hereinbefore set forth in Section A, the trustees

are further authorized, from time to time, in their

discretions and without order or license of any

court:

1. To retain and continue to operate the

business of John Donnelly & Sons for such

period as they deem advisable;

2. To control, manage and direct the business

of John Donnelly & Sons and to delegate all

or any part of such powers to such person or

persons as they may select;

3. To retain in said John Donnelly & Sons such

amount of the net earnings for working

capital and other purposes of said corpora-

App. 10

tion as they may deem consistent with sound

business practice.

4. To sell or liquidate all or any part of the

business of said corporation.

6. The Trust Instrument gives Defendant Trustees

the discretion to operate, control, manage and direct the

business of John Donnelly & Sons themselves, and/or to

delegate all or any part of their powers to such person or

persons as they may select. In either case, the ultimate

responsibility, authority and control of John Donnelly &

Sons is placed by the Trust Instrument in the hands of

Defendant Trustees.

7. Defendants have, in fact, operated, managed,

directed and controlled the business of John Donnelly &

Sons in Florida. PAUL MARK RYAN, Trustee of the

Revocable Trust, has directed payment of John Donnelly

& Sons’ bills by John Donnelly & Sons’ Vice-President

and Treasurer in Miami. RYAN has directed John Don-

nelly & Sons’ Vice-President and Treasurer to pay the

salary of an employee of the Revocable Trust, and to

withhold social security and workman’s compensation

payments for said employee. The Vice-President and

Treasurer of John Donnelly & Sons in Miami required

RYAN’S approval in order to sell a Florida subsidiary

corporation of John Donnelly & Sons, in accordance with

Article IX Section B of the Trust, which vests control of

the sale or liquidation of “tall or any part of the business of

said corporation” in the Trustees of the Revocable Trust.

The Vice-President and Treasurer of John Donnelly &

Sons also required RYAN’S authorization in order that

the First National Bank of Miami would honor the fac-

App. II

simile signature of said Vice-President and Treasurer on

accounts originally set up by Mr. Edward C. Donnelly, Jr.

8. The Trustees of the Edward C. Donnelly, Jr.

Revocable Trust are also doing business in Miami through

transactions by and for the Revocable Trust itself. PAUL

MARK RYAN, Trustee of the Revocable Trust, has

directed the Vice-President and Treasurer of John Don-

nelly & Sons to issue Company checks to pay the salary of

un employee of the Revocable Trust. RYAN has also

directed the Company, through its Treasurer, to withhold

social security and workman's compensation payments for

this employee of the Revocable Trust.

9. The Revocable Trust also does business in

Florida by borrowing money from John Donnelly & Sons

in order to pay various claims and expenses of the Estate

of Edward C. Donnelly, Jr. PAUL MARK RYAN, in his

cupacity as Trustee of the Revocable Trust, has directed

the Treasurer of John Donnelly & Sons to advance sub-

stantial sums of money to the Trustees. The Trustees have

then forwarded these funds to the Executors of the Don-

nelly Estate in order to enable the Executors to pay claims

ugainst the Estate. RYAN, as Trustee, has repaid John

Donnelly & Sons with interest for these loans.

10. The Trustees of the Edward C. Donnelly, Jr.

Revocable Trust are doing business in Florida through an

ugency relationship with the Executors of the Estate of

Edward C. Donnelly; Jr. The Trust Instrument, Article IX

Section D, establishes this agency relationship between the

Trustees and the Executors in the following language:

The trustees shall also pay out of said trust such

of the donor's debts, funeral and burial expenses

App. 12

und the expenses of administering the donor's es-

lute us may be requested by the donor's executor

or administrator. The trustees may rely upon a

certificate from the donor's executor or ad-

ministrator to the effect that such taxes, interest,

debts or expenses are payable; and the trustees

need not inquire into the legality or amount of

uny tax, interest, debt or expense so certified.

Payments pursuant hereto, may be made to or

upon the order of the donor's executor or ad-

ministrator or in such other manner as the trustee

think advisable.

11. The purpose of this agency relationship is for the

Executors to investigate, certify, and request payment by

the Trustees of the claims, debts, and expenses of the

Estate.

12. In fulfillment of this agency relationship, the Ex-

ecutors have, in fact, investigated, certified and requested

payment by the Trustee of bills of the Estate, and the

Trustees have paid such bills. Plaintiff has alleged and

demonstrated to the Court that:

a) The Federal Estate Tax liability of the Estate of

Edward C. Donnelly, Jr. was investigated by the Executors

in accordance with their agency relationship with

Defendants.

b) On July 15, 1974, PAUL MARK RYAN, as

Trustee of the Revocable Trust, requested John Donnelly

& Sons to advance the sum of $139,737.12 from its bank

uccount in the State of Florida to the Trustees, which sum

was to be paid as a second installment on the Federal Es-

tate Tax liability of the Estate of Edward C. Donnelly, Jr.

App. 13

c) Flagship First National Bank of Miami Beach,

und William Archie Brown, as Executors, petitioned the

Circuit Court of the Eleventh Judicial Circuit in and for

Dade County, Florida, on or about January 21, 1975, for

un order permitting their certification to the Trustees of a

partial satisfaction of a claim in the sum of $135,000.00 by

John Donnelly & Sons against the Estate of Edward C.

Donnelly, Jr.

d) On January 27, 1975, the Court entered its Order

directing the Executors to certify to the Trustees that the

Estate is indebted to John Donnelly & Sons for amounts in

excess of the Estate's assets and directing the Trustees to

disburse $135,000.00 to John Donnelly & Sons in partial

satisfaction of its claim.

13. The business being done in Florida by Defen-

dant Trustees through their agency relationship with the

Executors is the business of investigating, certifying, and

paying the debts, claims and expenses of the Estate. By vir-

tue of her timely election of dower, Plaintiff became a

creditor of the Estate and her dower claim became a debt

thereof. As a creditor of the Estate of Edward C. Don-

nelly, Jr., Plaintiff's cause of action arises directly out of

the business being done by the Trustees in Florida through

their direction and control of the payment of the debts of

the Estate. Plaintiff has requested that the Estate’s debt to

her be duly paid. In refusing to pay this debt, Defendants

have alleged that the assets claimed are not subject to

Plaintiff's dower interest. This demand and refusal of pay-

ment constitutes the source of Plaintiff's cause of action.

Thus, the requirement of “connexity” under Section

48.181 is satisfied, in that Plaintiff's cause of action arises

out of a “transaction or operation connected with or in-

cidental to” the business, business venture and/or agency

App. 14

relationship relied on for jurisdiction. Fla. Stat. §48.181(1)

(1975).

14. Moreover, the actions of Defendant Trustees in

the operation, control, management and direction of the

business of John Donnelly & Sons are also predicated on

and derived from the alleged ownership by them of the

shares of beneficial interest of Joun Donnelly & Sons.

Plaintiff has claimed a dower interest in said shares of

beneficial interest and, if her claim had been recognized by

Defendant Trustees she would have been able to par-

ticipate as a one-third owner in actions relating to the

operation, control, management and direction of the Com-

pany. Thus, both Plaintiffs claim and the actions of

Defendant Trustees arise out of a transaction or operation

connected with or incidental to the business venture of

John Donnelly & Sons and satisfy the “connexity” re-

quirement under Section 48.181, Florida Statutes (1975).

In consideration of the foregoing findings, the Court

concludes that service of process has been properly

effected on the Defendants pursuant to Section 48.071,

48.161 and 48.181, Florida Statutes (1975), and that the

Court has jurisdiction over the persons of these Defen-

dants.

Accordingly, it is hereby

ORDERED and ADJUDGED that Defendants’ Mo-

tion to Dismiss Plaintiffs Complaint, and Defendants’

Motion to Quash Service of Process be, and the same

hereby are, DENIED. The Defendants shall file their

Answer to the Complaint herein within twenty (20) days of

the date of this Order.

App. 15

DONE and ORDERED in Chambers, at Miami,

Dade County, Florida, this 8 day of February, 1977.

J. GWYNN PARKER

CIRCUIT COURT JUDGE

Copies furnished to:

Blackwell, Walker, Gray, Powers,

Flick & Hoehl

Walton Lantaff Schroeder & Carson

App. 16

APPENDIX D(1)

IN THE CIRCUIT COURT OF THE

11TH JUDICIAL CIRCUIT, 'N AND

FOR DADE COUNTY, FLORIDA

Civil Division

Case No. 75-7007

MARY ELIZABETH DONNELLY,

Plaintiff,

VS.

PAUL MARK RYAN, et al.,

Defendants.

MOTION TO DISMISS AND MOTION

TO QUASH PURPORTED SERVICE

OF PROCESS

COME NOW the defendants jointly and severally, as

Trustees of the Edward C. Donnelly, Jr. Revocable Trust

dated May 28, 1948, last amended October 8, 1968, and

respectfully move the Court to dismiss the plaintiff's com-

plaint herein and to quash the purported service of process

upon the following grounds:

1. The Court lacks jurisdiction over the subject

matter.

This case grows out of the estate of Edward C. Don-

nelly, Jr. deceased, which is pending in the Probate Divi-

sion of this court under Probate No. 725304 and this cause

App. 17

should properly be lodged in that same division of this

court.

2. The Court lacks jurisdiction over the persons of

these defendants and over the Revocable Trust.

There is no predicate or basis laid in the allegations of

the complaint upon which it could be claimed that this

Revocable Trust represented by these three Trustees is in

uny way involved in transacting business in the State of

Florida. It is the shareholder only of a Massachusetts

business trust known as John Donnelly & Sons, and as

such shareholder transacts no business in the State of

Florida. Please see affidavits of the three Trustees, Paul

Mark Ryan, Arthur T. McManmon, and James M. Con-

nolly, attached hereto and made a part hereof by reference

und marked as Exhibits “A’’, “B™ and “C”’ respectively.

3. There is an insufficiency of process.

4. There is an insufficiency of service of process.

The complaint shows on its face that the defendants

und each of them, together with the Revocable Trust, are

non-residents of the State of Florida. The affidavits hereto

attached present factual information to this court to

demonstrate that the attempted service of process by the

plaintiff under Florida Statutes, Chapter 48.071, Chapter

48.161 and on a spurious agency relationship, is totally in-

sufficient to provide in personam or in rem jurisdiction of

this court over these defendants or the trust res.

5. The exercise of jurisdiction by this court over

these defendants would violate Section 1 of the 14th

Amendment of the Constitution of the United States and

App. 18

Section 9 of Article | of the Constitution of the State of

Florida.

6. The complaint fails to state a cause of action

ugainst these defendants or any of them.

7. The complaint fails to state a claim against these

defendants upon which relief may be granted.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct

copy of the foregoing was mailed to Charles P. Sacher, Es-

quire, Walton, Lantaff, Schroeder, Carson & Wahl, Attor-

neys for Plaintiff, 900 Alfred I. duPont Building, Miami,

Florida, 33133 on this 19th day of May, A.D., 1975.

BLACKWELL WALKER GRAY

POWERS FLICK & HOEHL

Attorneys for Defendants ;

By /s/ Samuel J. Powers, Jr.

Samuel J. Powers, Jr.

2400 First Federal Building

One Southeast Third Avenue

Miami, Florida, 33131

305 358-8880

App. 19

APPENDIX D(2)

IN THE CIRCUIT COURT OF THE

ITH JUDICIAL CIRCUIT, IN AND

FOR DADE COUNTY, FLORIDA

PROBATE DIVISION

CASE NO. 75-7007

(Div. 35 — J. Parker)

MARY ELIZABETH DONNELLY,

Plaintiff,

VS.

PAUL MARK RYAN, et al.,

Defendants.

DEFENDANTS’ MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS AND MOTION TO QUASH

PURPORTED SERVICE OF PROCESS

THE PLEADINGS

On February 28, 1975 Mary Elizabeth Donnelly

(hereinafter *MED") filed what she denominated a com-

plaint for satisfaction of dower against Paul Mark Ryan,

Arthur T. McManmon and James M. Connolly, the

trustees of the Edward C. Donnelly, Jr. Revocable Trust.

This suit was filed on the civil side of the Dade County Cir-

cuit Court and on defendants’ motion, has been reassigned

to the Probate Division.

App. 20

The complain: seeks a declaratory judgment that

property held by the trustees was owned by Edward C.

Donnelly, Jr. at the time of his death on October 15, 1972,

or that, alternatively, the trust is illusory, testamentary,

und therefore void. The complaint further seeks a decree

requiring the trustees to distribute to the plaintiff a dower

interest out of the trust property. Such a decree is properly

directed at the executors of the probate estate, not

strangers such as the trustees. This discrepancy highlights

the ambivalent posture of MED in the action — in effect

she is suing both as an executor (which she is) and as a

dower claimant (which she is).

The complaint alleges on its face that the defendants

us trustees of the Edward C. Donnelly, Jr. Revocable Trust

are all non-residents of the State of Florida.

An affidavit in support of attempted long-arm statute

service filed by MED further sets forth the non-residence

of the three defendant trustees and provides their foreign

residence in the State of Massachusetts.

The defendants have moved to dismiss and to quash

the purported service of process for lack of jurisdiction

over the subject matter, over the persons of these defen-

dants, over the Revocable Trust, and on other grounds

there stated.

In support of the motion of each of the three trustees

has filed a complete affidavit demonstrating that each of

the three are now and have been for many, many years,

residents of the State of Massachusetts, have never been

residents or domiciled in the State of Florida, that the trust

was created in the State of Massachusetts in 1948 and

restated in Massachusetts on October 8, 1968, that the

App. 21

trust provides that it is to be governed and construed ac-

cording to the laws of Massachusetts, that the trust does

not now and since the donor's death has ot:

(a) Owned any real estate in Florida:

(b) had any bank accounts in Florida;

(c) filed any tax returns or paid any taxes in

Florida:

(d) had any tangible personal property in

Florida;

(e) had an office or an office listing in Florida;

(f) transacted any business, as such, in Florida;

or

(g) administered any of its assets in Florida.

That the only assets of the Edward C. Donnelly, Jr.

Revocable Trust being sued in this case are 1,000 shares of

stock in a Massachusetts business trust established August

24, 1940 known as John Donnelly & Sons (hereinafter

referred to as “the Company’).

In other words, the defendant trust in this litigation is

u mere stockholder of the only existing shares of stock in a

Massachusetts business trust. Incidentally, such

Massachusetts business trust is treated for all intentions

und purposes as a corporation under Massachusetts law.

That on November 10, 1960, the certificates

representing these 1,000 shares of stock in the John Don-

App. 22

nelly & Sons Massachusetts business trust was formally

registered in the name of the trustees of the defendant

trust, the Edward C. Donnelly, Jr. Revocable Trust, and

- thereafter formally deposited in the trust by Edward C.

Donneliy, Jr. on November 10, 1960 in Boston,

Massachusetts and has been retained in the custody of the

trustees ever since.

That at all times the entire corpus of this trust has

been located in Boston, Massachusetts.

That neither the defendant trust nor the trustees

thereof have ever transacted business in the State of

Florida.

IT IS OF INTEREST TO NOTE THAT THE

PLAINTIFF, MARY ELIZABETH DONNELLY, HAS

BROUGHT AN EARLIER ACTION ON MAY 18, 1973

AGAINST THE SAME DEFENDANT TRUSTEES OF

THE SAME TRUST, SEEKING THEIR REMOVAL,

IN THE SUPERIOR COURT IN EQUITY (#35-122)

FOR MIDDLESEX COUNTY, MASSACHUSETTS,

THEREBY RECOGNIZING THAT MASSA-

CHUSETTS HAS JURISDICTION OVER THE TRUST

AND ITS RES AND HAS SUBMITTED HERSELF TO

SUCH JURISDICTION.

FACTUAL BACKGROUND

I. THE WILL

On October 15, 1972, Edward C. Donnelly, Jr. died in

Florida. He had been a resident of Florida since about

1962. Prior to that he resided in Massachusetts.

App. 23

His will was executed in Boston on May 18, 1970. Its

first article bequeathed all his tangible personalty to MED,

his third wife. The second article made pecuniary bequests

totaling $7,500, to ten friends and relatives. The third arti-

cle gave the residuary estate to the trustees of the “Edward

C. Donnelly, Jr. Revocable Trust” to hold in trust ac-

cording to that instrument. The complaint by MED is that

certain property now held by the trustees belonged to

Edward C. Donnelly, Jr. as of October 15, 1972. The will

names executors, three of whom have qualified and are

now co-executors: Flagship First National Bank of Miami

Beach (formerly The Miami Beach First National Bank),

William Archie Brown and MED.

The residuary clause incorporates by reference the

Revocable Trust instrument against the contingency that

the trust be not in existence at Edward C. Donnelly, Jr.'s

death or that it be held invalid by some court. Therefore,

the ownership of the disputed property as of October 15,

1972 is practically inconsequential as long as the will is

followed. However, on January 26, 1973 MED made a

timely election to take dower in lieu of taking under the

will. Therefore, the ownership of the disputed property as

of October 15, 1972 is the dispositive question as to the

merits of MED’s complaint.

On November 18, 1974, the Dade County probate

court entered an order for assignment of dower upon the

petition of the co-executors Flagship First National Bank

of Miami Beach and William Archie Brown.* At the in-

stance of MED, the court on December 17, 1974 issued an

amended order which declared:

*Under former §733.10 and current §732.203, an executor peti-

trons the probate court for an order authorizing or directing him to lay

off and assign dower.

App. 24

This order does not adjudicate or determine the

right, if any, of Mary Elizabeth Donnelly to

dower in any assets, owned or claimed to be

owned, by the Edward C. Donnelly, Jr.

Revocable Trust.

The order further provided:

By entering this order the court does not deter-

mine that it has jurisdiction to decide the issues

set forth (sic) in the preceding paragraph.

Within three months of the amended order, MED filed the

instant complaint.

ll. THE EDWARD C. DONNELLY, JR.

REVOCABLE TRUST: ESTABLISHMENT,

AMENDMENTS AND TRUSTEES

The plaintiffs husband first established the Edward

C. Donnelly, Jr. Revocable Trust on May 28, 1948. The

settlor during his life always retained the power to alter,

amend, and revoke the trust. On several occasions he exer-

cised his power to amend the trust, sometimes re-stating it

virtually entirely. The settlor was at all times until May 1,

1967, one of the trustees. On that date he purportedly ex-

ecuted the so-called Lappin Amendment, a general revi-

sion of the trust which neglected to name him trustee. On

January 25, 1968, the settlor exercised his Article IV (A)

(3) power under the Lappin instrument to change the iden-

tity and number of the trustees. In lieu of Robert S. Lap-

pin, the National Shawmut Bank, and MED, he sub-

stituted himself and Paul Mark Ryan. Thereafter, on Oc-

tober 8, 1968, the settlor made a general amendment of the

App. 25

Trust. in which he and Paul Mark Ryan remained as

Trustees.

The 10/8/68 amendment was in force when Edward

C. Donnelly, Jr. died. Thereafter, on October 27, 1972. his

sister. Mary Aline Donnelly Stuart and James M. Con-

nolly became trustees pursuant to Article VIII (A) of the

trust. In October of 1973 Mary Aline Donnelly Stuart

resigned. and Arthur T. McManmon succeeded her pur-

suant to Article VIII (B) of the trust.

The settlor was a Massachusetts resident until about

1962. He executed in Massachusetts each amendment to

the Trust and appointment of trustee(s) both before and

after 1962. Since October 8, 1968, the trustees have been

Massachusetts residents exclusively.

ltt. THE EDWARD C. DONNELLY, JR.

REVOCABLE TRUST: CORPUS

The trust has possessed only two kinds of assets, lise

insurance policies and shares in the family business. The

10/8/68 amendment listed eleven life insurance policies

with an aggregate face amount of $250,000. The trustees’

collection of insurance proceeds was delayed considerably

becuuse MED contested the validity of the settlor’s 1968

ucts which replaced the Lappin Amendment trustees with

himself and Paul Mark Ryan and which revised the terms

of the trust. By now the trustees have collected all in-

surzace proceeds payable.

Currently the sole asset of the trust is 1,000 shares of

John Donnelly & Sons. John Donnelly & Sons is 4 multi-

state outdoor advertising business in the form of a

Massachusetts business trust. The 1,000 shares have

App. 26

represented the entire beneficial interest in John Donnelly

& Sons since 1960, when the company redeemed 1,000

shares owned by the estate of Edward C. Donnelly, Jr.'s

brother, John.

IV. THE COMPANY: JOHN DONNELLY & SONS,

A MASSACHUSETTS BUSINESS TRUST

The Edward C. Donnelly, Jr. Revocable Trust owns

the entire beneficial interest in John Donnelly & Sons, a

Massachusetts business trust. The company itself is a

multi-state outdoor advertising business.

It is both an operating and a holding company. It sells

advertising directly in Massachusetts, primarily in and

around Boston. It owns 100% of sixteen corporations.

Most of the active subsidiaries are in the business of selling

advertising directly.

The Donnelly companies file a consolidated federal

income tax return. The greatest volume of sales occurs in

the Boston area (JD&S), the Baltimore area (Donnelly

Advertising Corporation of Maryland), and in Florida

(Donnelly Advertising Corporation of Florida, and Em-

pire Advertising Industries, Inc.). Other divisions operate

in Virginia, Maine, and the Worcester, Massachusetts

area. The state of Vermont has undertaken to take most of

the assets of the Vermont division by eminent domain. The

aggregate gross revenues of the Donnelly companies is in

the vicinity roughly of $15,000,000.

STATUTORY REQUISITES FOR JURISDICTION

. The fundamental basis at common law for any court's

jurisdiction over the person of any defendant is the

App. 27

physical presence of that defendant within the territory of

the court's jurisdiction. A court may exercise jurisdiction

over a person not present in that territory if a statute

suthorizes such exercise. The trustees are not residents of

Florida, and they were not served while in Florida.

Therefore, the Dade County Court may exercise jurisdic-

tion over the defendants only if some Florida statute so

authorizes. Statutes authorizing the exercise of jurisdiction

over nonresidents are called “long-arm statutes.”

Two long-arm statutes are currently in force in

Florida. The older one is Florida Statute §48.181*. In

*348.181 — Service on nonresident engaging in business in state

(1) The acceptance by any person or persons, individuaiy, or

associated together as a copartnership or any other form or type of

association, who are residents of any other state or country, and all

foreign corporations, and any person who is a resident of the state and

who subsequently becomes a nonresident of the state or conceals his

whereabouts, of the privilege extended by law to nonresidents and

others to operate, conduct, engage in, or carry on a business or

business venture in the state, or to have an office or agency in the state,

constitutes an appointment by the persons and foreign corporations of

the secretary of state of the state as their agent on whom all process in

uny action or proceeding against them, or any of them, arising out of

uny transaction of operation connected with or incidental to the

business or business venture may be served. The acceptance of the

privilege is signification of the agreement of the persons and foreign

corporations that the process against them which is so served is of the

sume validity as if served personally on the persons or foreign

corporations.

(2) Ifa foreign corporation has a resident agent or officer in the

state, process shall be served on the resident agent or officer.

(3) Any person, firm or corporation which sells, consigns, or

leases by any means whatsoever tangible or intangibie personal

property, through brokers, jobbers, wholesalers or distributors to any

person, firm orf corporation in this state shall be conclusively

presumed to be operating. conducting, engaging in or carrying on a

business venture in this state.

App. 28

brief, it authorizes jurisdiction over nonresidents doing

business in Florida in cases arising out of that business. it

has been in substantially the same form since 1951. The

newer statute is §48.193*, which became effective on July

1, 1973. It differs from §48.181 in that it catalogues a num-

ber of comparatively specific grounds for jurisdiction,

whereas §48.181 recites a more general requirement.

A third long-arm statute, §48.182, was passed in 1970

(Laws 1970 c.70-90 §1). The current §48.193 replaced it as

of July 1, 1973.

$48. 193 — Acts subjecting persons to jurisdiction of courts of state

(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 per-

son, 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:

(a) Operates, conducts, engages in, or carries on a business ven-

ture in this state or has an office or agency in this state.

(b) Commits a tortious act within this state.

(c) Owns, uses, or possesses apy real property within this state.

(d) Contracts to insure any person, property, or risk located

within this state at the time of contracting.

(ec) With respect to proceeding for alimony, child support, or

division of property in connection with an action to dissolve a

marriage or with respect to an independent action for support of

dependents, maintains a matrimonial domicile in this state at the time

of the commencement of this action or, if the defendant resided in this

State preceding the commencement of the action, whether cohabiting

during that time or not. This paragraph does not change the residency

requirement for filing an action for dissolution of marriage.

App. 29

The complaint alleges jurisdiction in reliance upon

$48.181 (1). the older long-arm. It does not mention

$48.193 at all.

(f) Causes injury to persons or property within this state arising

out of an act or omission outside of this state by the defendant,

provided that at the time of the injury either:

1. The defendant was engaged in solicitation or service activities

within this state which resulted in such injury; or

2. Products, materials, or things processed, serviced, or

manufactured by the defendant anywhere were used or consumed

within this state in the ordinary course of commerce, trade, or use, and

the use of consumption resulted in the injury.

(g) Breaches a contract in this state by failing to perform acts re-

quired by the contract to be performed in this state.

(2) Service of process upon any person who is subject to the

jurisdiction of the courts of this state as provided in this section may

be made by personally serving the process upon the defendant outside

this state, as provided in §48.194. The service shall have the same effect

us if it had been personally served within this state.

(3) Only causes of action arising from acts or omissions

enumerated in this section may be asserted against a defendant in an

action in which jurisdiction over him is based upon this section, unless

the defendant in his pleadings demands affirmative relief on other

causes of action, in which event the plaintiff may assert any cause of

action against the defendani, regardless of its basis, by amended

pleadings pursuant to the rules of civil procedure.

(4) Nothing contained in this section shall limit or affect the

right to serve any process in any other manner now or hereinafter

provided by law.

Added by Laws 1973, c.73-179, §1, eff. July, 1973.

App. 30

The subjection of the defendants to §48.181 long-arm

jurisdiction depends on two conditions. The plaintiff must

show: (1) first. that the defendants have “operated, con-

ducted, engaged in, or carried on a business or business

venture in the state, or. . . have (had) an office or agency

in the state,” and (2) second, that the plaintiff's action is

one “arising out of any transaction or operation connected

with or incidental to the business or business venture.”

This memorandum refers to the first condition as the do-

ing business requirement, and the second as the “‘connex-

ity” requirement (the court in Youngblood v. Citrus

Association of the New York Cotton Exchange, Inc., 276

So.2d 505 (Fla. App. 1973) employed the term

“connexity”’).

The complaint divides its assertion of jurisdiction into

two parts. The first (Paragraphs 28-41) it designates

“Transaction of Business in Florida,” and the second

(Paragraphs 42-52) “Employment and Utilization of

Agents in Florida.” This breakdown conforms to the

phrasing of the doing business requirement of §48.181 (1),

which apparently distinguishes between (a) operating a

business and (b) maintaining an office or agency. The ap-

parent distinction is not particularly important, since the

phrasing of the connexity requirement reflects no distinc-

tion between doing business and having an agent. It refers

only to “the business or business venture.’’ Hence a non-

resident who “has an office or agency” in Florida is sub-

ject to §48.181 jurisdiction only if the maintenance of such

office or agency amounts to a “business or business ven-

ture,” in the language of the connexity requirement. In

short, if the plaintiff seeks to show that the defendants

have an agent in Florida, she must also show that the

engagement of such an agent is a “business or business

venture” in order to satisfy the connexity requirement.

App. 31

ALLEGED GROUNDS FOR JURISDICTION

The plaintiff advances two grounds for in personam

jurisdiction of Ryan, Connolly and McManmon.

Paragraphs 28 through 41 contend that the defendants

have operated a “business venture” in Florida within the

meaning of §$48.181 (1) F.S. This is based on apparently

three separate theories. One that Ryan and McManmon

were physically present in the state of Florida at one time,

and the other two on an attempted attribution to the

defendants of the acts of other parties, one a natural per-

son, Edward C. Donnelly, Jr. (deceased), and of one out-

door advertising business, John Donnelly & Sons.

THE LAW

1. THE CONTROLLING HANSON v. DENCKLA

CASE

It is respectfully submitted that the jurisdictional

issues in this case are controlled by the case of Elizabeth

Donner Hanson, et al. v. Katherine N. R. Denckla, et al.,

357 U.S. 235, 2 L.Ed 2d 1283, 78 S. Ct. 1228, decided June

23, 1958

A. THE FACTS OF HANSON v. DENCKLA

In 1935, Dora Browning Donner, a resident of

Pennsylvania, entered into an agreement with the

Wilmington Trust Company (‘Wilmington’) whereby she

deposited certain securities with Wilmington to be held in

trust. The securities were delivered to Wilmington in

Delaware and remained in Delaware under the possession

and administration of Wilmington. The trust assets were

App. 32

never in Florida and Wilmington had no office in Florida

and transacted no business there.

By the terms of the 1935 Agreement, Wilmington was

to manage, invest and reinvest the corpus and to pay the

net income to Mrs. Donner for life. Mrs. Donner reserved

a power of appointment exercisable either by inter vivos

instrument or by will. The agreement provided that, failing

the exercise of the power, the corpus was to be distributed

by Wilmington on Mrs. Donner’s death to her surviving

issue or to her next of kin.

It was provided that certain of the trust powers given

to Wilmington could be exercised only under the direction

or consent of a “trust advisor.” These controlled powers

were the powers (1) to sell trust assets, (2) to invest the

proceeds from the sale of trust assets and (3) to participate

in mergers and reorganizations of corporations whose

securities were held by the trust. Mrs. Donner designated

the trust advisor in the agreement and reserved the right to

nominate other advisors at any time. She also reserved the

power to revoke, alter or amend the agreement in whole or

in part at any time, and the right to change the trustee. In

addition, Mrs. Donner once withdrew $75,000.00 from the

corpus, but later replaced it.

Mrs. Donner moved from Pennsylvania to Palm

Beach County, Florida in 1944. While a resident of

Florida, she paid Florida taxes on the trust assets. She

remained a Florida domiciliary until her death in 1952. In

1949, Mrs. Dorner executed a non-testamentary instru-

ment in Florida by which she purported to exercise her

power of appointment. (There had been two previous in-

struments exercising the power of appointment which were

specifically revoked by the 1949 instrument, and a 1950 in-

App. 33

strument amended the 1949 instrument in a minor aspect.)

The 1949 instrument directed Wilmington to pay over a

total of $417,000.00 on Mrs. Donner’s death to certain

named beneficiaries. On the same day in 1949, Mrs. Don-

ner executed her Last Will and Testament. The will con-

tained a residuary clause which specifically included in the

residuary estate the balance of the trust property over

which Mrs. Donner possessed a power of appointment

that had not been effectively appointed during her lifetime.

At Mrs. Donner’s death, the trust corpus held by

Wilmington under the 1935 agreement amounted to just

under $1,500,000.00. Pursuant to the 1949 instrument,

Wilmington thereafter distributed cash and securities

uggregating $417,000.00 and deposited the balance to the

account of the executrix and trustee under the will.

B. COMPARISON OF FACTS IN DENCKLA

AND IN DONNELLY

DENCKLA — 1. The real issue before the lower courts

in both actions was the validity of the appointment and,

ultimately, of the trust.

DONNELLY — |. The issues in this action are the

ownership of the “trust assets’ at the time of the dece-

dent's death and the validity of the trust.

DENCKLA — 2. The trustee had no office in Florida

and transacted no business there.

DONNELLY — 2. The individual trustees of the

Edward C. Donnelly, Jr. Revocable Trust are all

domiciliaries of Massachusetts and have never been

App. 34

Florida domiciliaries. The Edward C. Donnelly, Jr.

Revocable Trust does not conduct business in Florida.

DENCKLA — 3. The non-resident trustee was not

served personally and did not appear. It received construc-

live service.

DONNELLY — 3. The trustees were not personally

served and they do not intend to appear. They received

constructive notice of the action as well as notice of service

upon the Secretary of State of Florida as the alleged

designated agent of the trustees and upon one of the co-

executors of the estate of Edward C. Donnelly, Jr. as the

alleged agent of the trustees.

DENCKLA — 4. The corpus of the trust was securities.

DONNELLY — 4. The corpus of the trust is 1,000

shares of John Donnelly & Sons.

DENCKLA — 5. The trust assets were delivered to the

trustee in Delaware and at all times remained in Delaware.

DONNELLY — 5. The trust assets were deposited with

the trustee in Massachusetts and have remained under the

custody of the trustee in Massachusetts at all times.

DENCKLA — 6. _ The will was executed and probated in

Florida.

DONNELLY — 6. The will was executed in

Massachusetts and probated in Florida.

DENCKLA — 7. The settlor was a resident of

Pennsylvania at the time the trust was created.

App. 35

DONNELLY — 7. The settlor was a Massachusetts resi-

dent when the trust was created. All amendments to the

trust and appointments of trustees were executed in

Massachusetts.

DENCKLA — 8. The settlor moved to Florida in 1944

and remained there until her death in 1952.

DONNELLY —8._ The settlor was a Massachusetts resi-

dent until about 1962 when he moved to Florida until his

death in 1972.

DENCKLA — 9. The settlor reserved the life income

from the trust assets and a power of appointment over the

assets. The settlor reserved the power to revoke, alter or

amend in whole or in part at any time. A “trust advisor”

uppointed by the settlor held power over the trustee in cer-

tain situations, e.g. selling off trust property.

DONNELLY — 9. The settlor maintained complete

control over the trust assets during his lifetime including

power over the net income of the trust. Settlor retained the

power to revoke, alter or amend the trust.

DENCKLA — 10. The settlor paid Florida taxes on the

trust assets.

DONNELLY — 10. The trust assets were listed on the

Florida intangible tax returns of the settlor by mechanical

error.

C. THE DENCKLA LITIGATION

In January, 1954, the two residuary legatees under the

will brought action in Florida naming as defendants the

App. 36

executrix of the will, Wilmington and others who were in-

terested in the assets either directly or indirectly by reason

of the appointment or by the residuary clause of the will.

In this action and in all subsequent litigation, the subject

of the dispute was the 3417,000.00 distributed by

Wilmington under the 1949 instrument. The dispute was

divided into two groups: The residuary icgatees

(““legatees”) named in the will, and the appointees and

beneficiaries (““beneficiaries’’) named in the 1949 instru-

ment. The legatees claimed that the appointment under the

1949 instrument did not pass a present interest and it was

thus testamentary. Since the instrument did not comply

with the Florida Statute of Wills, it was invalid and the

$417,000.00 thus passed through the residuary clause of

the will. The beneficiaries argued simply that the appoint-

ment did pass a present interest and that the distribution

by Wilmington of the $417,000.00 was thus effective.

The Florida action sought a declaratory judgment to

determine what property passed under the will and the

authority of the executrix over the assets held by

Wilmington under the 1935 agreement. Neither

Wilmington nor certain other named, non-resident defen-

dants were served personally in the action and they did not

appear. The non-resident defendants were sent copies of

the pleadings along with a “Notice to Appear and De-

fend” by ordinary mail, and notice was published locally

pursuant to Florida Statutes §48.01 and 48.02 dealing with

constructive service.

In January, 1955, the Florida court entered its decree

holding that it lacked jurisdiction over the trust assets and

over the non-answering, non-resident defendants and dis-

missing the action as to those defendants. However, as to

the parties before the court, it was held that no present in-

App. 37

terest passed under the 1949 instrument which was invalid

us a testamentary instrument and that, therefore, the assets

held by Wilmington under the 1935 agreement passed un-

der the residuary clause of the will.

The Florida Supreme Court handed down its decision

in September, 1956, Hanson v. Denckla, 100 So.2d 378, af-

firming that part of the decree which adjudged the in-

validity of the trust and the appointment, and reversing

that part which held that Florida had no jurisdiction over

the trust and over the non-resident defendants. The

Florida Supreme Court held that constructive service was

valid because the lower court had subject matter jurisdic-

tion over the construction of the will. The court reasoned

that it is not necessary that the res, the trust assets, be

physically present in the state in order for constructive ser-

vice to be binding on a non-resident where the issue

presented for the court's adjudication required a deter-

mination of the validity of the trust. While the Florida

Supreme Court found jurisdiction based on the fact that

the will was probated in Florida, it is unclear whether the

jurisdiction referred to is in rem jurisdiction over the trust

assets or in personam jurisdiction over the non-resident

defendants.

In July, 1954, while the Florida action was pending,

the executrix and trustee under Mrs. Donner’s will

brought an action in Delaware seeking a declaratory judg-

ment to determine the persons entitled to assets held at the

time of Mrs. Donner’s death by Wilmington under the

1935 agreement. After the Florida decree was rendered,

the legatees urged its estopping effect on the Delaware

court as to the validity of the 1935 agreement as a trust

agreement. The Delaware court in its decree refused to

recognize any estopping effect of the Florida decree,

App. 38

holding that res judicata could not be applicable since the

two actions were based on separate causes of action. The

Delaware court further held that collateral estoppel could

not apply because the Florida court's determination that

the trust was invalid was merely implicit in and incidental

to the main issue of determining what passed under the

residuary clause of the will. It was opined that it would be

contrary to the public policy of the State of Delaware for

the Delaware court to be collaterally estopped on an issue

which was incidentally determined in a sister state on

unother cause of action in which the foreign court lacked

jurisdiction over both the trust and the trustee. Hanson v.

Wilmington Trust Company, 119 A.2d 901 (1955).

The legatees invoked the Full Faith and Credit Clause

of the United States Constitution for the first time on ap-

peal to the Delaware Supreme Court. Because Wilmington

was never served personally with Florida process and never

appeared in the Florida litigation, the Delaware Supreme

Court held that the Florida decree must be denied full faith

and credit as asserted against Wilmington. As a judgment in

rem, the Florida decree was denied full faith and credit

since the trust assets were never subjected to the control of

the Florida court. The Delaware Supreme Court upheld its

lower court in refusing to give to the Florida decree the ef-

fect of res judicata or collateral estoppel. Lewis v. Hanson,

128 A.2d 819, (1957).

The matter finally reached the United States Supreme

Court on certiorari to the Supreme Court of Delaware and

ulso on certiorari to the Supreme Court of Florida. The

Supreme Court affirmed the Delaware judgment and

reversed the Florida judgment in a 5-4 decision. Hanson v.

Denckla, 357 U.S. 235, 2 L.Ed 2d 1283, 78 S. Ct. 1228

(1958). The issues presented to the court were (1) Whether

App. 39

Florida erred in holding that it had jurisdiction over the

non-resident defendants and (2) Whether Delaware erred

in refusing full faith and credit to the Florida decree. As to

the first issue, the legatees contended that the Florida judg-

ment was offensive to the Due Process Clause of the Four-

teenth Amendment because the Florida court was without

jurisdiction. The defect alleged was the absence of those

‘affiliating circumstances” which enable a state court to

take jurisdiction.

The majority opinion written by Chief Justice Warren

rejected the Florida court's opinion that authority over the

probate and construction of its domiciliary’s will, under

which the disputed assets might pass, was sufficient to con-

fer jurisdiction; (the court noting that the Florida court

failed to designate over what it had invoked jurisdiction.)

The Supreme Court also rejected the contention that the

Florida court possessed in rem jurisdiction over the trust

assets (assuming arguendo, that the trust was invalid so

that Mrs. Donner was the owner of the assets) because the

decedent was a domiciliary of Florida. The court therefore

reversed the Florida judgment insofar as it rested upon in

rem jurisdiction.

In urging that the circumstances of the case con-

stituted sufficient affiliation with the State of Florida to

enable its courts to exercise in personam jurisdiction over

the non-resident trustee, the legatees relied principally

upon McGee v. International Life Insurance Company,

355 U.S. 220, 2 L.Ed. 2d 223, 78 S. Ct. 199 (1957). The

court cautioned that although McGee noted the trend of

expanding personal jurisdiction over non-resident defen-

dants, the defendant must have the “minimal contacts”

with a state for its courts to exercise their jurisdiction over

them. These “minimal contacts” were found to be lacking

App. 40

in this case where the defendant trustee had (1) no office in

Florida, (2) transacted no business in Florida, (3) never

held or administered trust assets in Florida and (4) never

solicited business in Florida. The Supreme Court further

noted that, unlike McGee, the cause of action did not arise

out of an act or transaction consummated in the forum

Stute.

The legatees argued that the exercise of the power of

appointment by Mrs. Donner in Florida gave Florida a

Substantial contact upon which to base in personam

jurisdiction. The court rejected this contention noting that

the issue had been the validity of the 1935 agreement and

not the appointment:

The unilateral activity of those who claim some

relationship with a non-resident defendant can-

not satisfy the requirement of contact with the

forum State [sic], thus invoking the benefit and

protection of its laws. Id. at 1298.

Finally, the court rejected the argument that because

the settlor and most of the appointees and beneficiaries

were domiciliaries of Florida, the court in that state should

be able to exercise in personam jurisdiction over the non-

resident trustee. The court stated that while a center of

gravity approach may be sufficient for choice of law ques-

tions, it cannot be urged in support of personal jurisdiction

over non-resident defendants.

In 72 Harv. L. Rev. 695, 704, Professor Austin W.

Scott, one of the leading authorities on trusts in this coun-

try, in an exhaustive comment on Hanson v. Denckla said

this:

App. 41

But surely the mere fact that a testator

provides in his will for the disposition of property

not previously effectively disposed of by him

does not give to the state in which he is domiciled

at his death jurisdiction to determine the effec-

tiveness of ail dispositions previously made by

him of property outside the state to persons not

subject to the jurisdiction of the state. A bequest

of all property which he should own at his death

does not give a court of his domicile jurisdiction

to determine the validity of his claim to own-

ership of property in other states also claimed by

persons not domiciled in the state. As Mr. Chief

Justice Warren said, jurisdiction cannot be

predicated upon the contingent role of the

Florida will, and ‘If such a basis of jurisdiction

were sustained, probate courts world enjoy

nationwide service of process to adjudicate in-

terests in property with which neither the State

nor the decedent could claim any affiliation.”

where the settlor of the trust was domiciled at any time are

not relevant to the issue of in personam jurisdiction.

Il. FLORIDA LONG-ARM STATUTE REQUIRE-

MENT OF CONNEXITY

The word connexity was first applied by the Appellate

Court of Florida to the long-arm statutes in the case of

Youngblood v. Citrus Assoc. of N.Y. Cotton Exch., Inc..

Fla. App. (1973) 276 So.2d 505.

In that case service upon a non-resident defendant

was quashed and the holding affirmed on appeal where the

defendant Association was held to have insufficient con-

tact with the State of Florida, and also that the facts did

not show the connexity required by §48.081 F.S. The court

Stated:

Therefore, we determine that the requirements of

doing business and connexity as delineated in

Florida Statute §48.181 (1971), F.S.A., must be

The Supreme Court reversed the Florida judgment as

far as it rested upon personal jurisdiction over the trustee

as to the trustee and also as to all parties since, under

Florida law, the trustee was an indispensable party in the

adjudication of the validity of the trust. For the same

reasons compelling reversal of the Florida judgment, the

Delaware judgment was affirmed.

D. THE IMPACT OF THE DENCKLA RULING

The Denckla case made it clear that the only contacts

that are relevant to jurisdiction are those contacts which

the non-resident defendant itself had with the forum.

Thus, such contacts as where the will was probated or

App. 42

read in pari materia with Florida Statute §48.08 1

(1971), F.S.A. Our determination is supported by

other Florida cases which have resolved similar

problems. (Cases cited)

* * *

In summary, the burden of proof to sustain the

validity of service of process is upon the person

who seeks to invoke the jurisdiction of the court

Zirin v. Charles Pfizer & Co., supra. This party

must show, when attempting to serve a foreign

corporation not qualified to do business in the

State of Florida, that the requirements of Florida

Statute §48.181, F.S.A. (namely, doing business

and connexity) have been met and that process

App. 43

has been served upon a person qualified to accept

such process. We would note at this point that

the question of due process or ‘minimum con-

tacts’ is not properly discussed if a showing of

doing business has been made as the doing

business requirement necessarily includes the

concept of minimum contacts. Wherefore, as ap-

pellants argue that connexity is not required,

while in fact it is required, and as no showing of

connexity has been made, service cannot be

sustained under Florida Statute §48.081, F.S.A.,

when read in pari materia with §48.181 (1971).

In her action to satisfy dower, Mrs. Donnelly is di-

rectly attacking the validity of the Edward C. Donnelly, Jr.

Revocable Trust. The rule in Florida, as recognized in

Denckla. is that in any action concerning the validity of a

trust. the trustee is an indispensable party. Thus, for the

Florida court to entertain this action, it must be able to ex-

ercise jurisdiction over the trustees.

The defendant trustees in this Florida action are non-

residents and are not consenting to jurisdiction of the

Florida court over them. Therefore, the plaintiff must rely

upon the Florida Long-Arm Statutes authorizing

jurisdiction over non-resident defendants under certain

circumstances. Florida Statutes §48.181 authorizes

jurisdiction over a non-resident when (1) a non-resident is

conducting business in Florida and (2) the cause of action

arises out of that business. However, the cause of action in

this case involves the validity of the Edward C. Donnelly,

Jr. Revocable Trust, and it seems clear that the

Massachusetts Revocable Trust is not engaged in any

business in Florida. Further, because there is no connexity

between the cause of action and the purported business ac-

App. 44

tivity, the requirements of §48.181 are not met and cannot

be used to confer jurisdiction over the defendant trustees.

The very recent case of W. R. Esberger v. First

Florida Business Consultants, Inc., Fla. App. (1976) 338

So.2d 561 in reversing the denial of a motion to quash ser-

vice under the Florida Long-Arm Statutes, specifically

held as follows:

It is well established that Florida’s long-arm

Statute is to be strictly construed. Lyster v.

Round, 276 So.2d 186 (Fla. Ist DCA 1973); Wm.

E. Strasser Const. Corp. v. Linn, 97 So.2d 458

(Fla.1957). To perfect service pursuant to Sec-

tions 48.161 and 48.181, Florida Statutes, the

complaint must allege the jurisdictional require-

ments prescribed. by the statute. Henschel-

Steinau Co. v. Harry Schorr, Inc., 302 So.2d 198

(Fla. 4th DCA 1974). The plaintiff is required to

allege that the cause of action arises from

business activities conducted in the state and that

the defendant is either a resident of a foreign

State or country, a resident of Florida who subse-

quently becomes a non-resident, or a resident of

Florida who conceals his whereabouts. See

O’Connell v. Loach, 203 So.2d 350 (Fla. 2d DCA

1967), Section 48.181, Florida Statutes. The com-

plaint filed by «npellee is silent as to the residence

of appellant and does not adequately allege that

the cause of action arose from business activities

conducted within this state.

Please see also the recent case of John Blue Company

v. Roper Pump Company, Fla. App. (1975), 324 So.2d

147, wherein the Third District reversed denial of a motion

App. 45

to quash specifically on the issue that connexity had not

been shown under the Youngblood case, supra.

The plaintiff has by no means sustained her burden of

establishing the contacts with the Florida jurisdiction of

the defendant trustees of the Edward C. Donnelly, Jr.

Revocable Trust required under the long-arm statutes.

Further, the plaintiff has not attempted in any way to

go forward and show connexity between said alleged con-

tacts and her cause of action herein as required by the

Florida long-arm statutes.

CONCLUSION

It is respectfully submitted therefore that the non-

resident defendants’ motion to dismiss and to quash pur-

ported service of process should be granted.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct

copy of the foregoing was delivered to Walton, Lantaff,

Schroeder, Carson & Wahl, Attorneys for Plaintiff, 900

Alfred I. duPont Building, Miami, Florida, 33131, on this

26th day of January, 1977.

Respectfully submitted,

BLACKWELL, WALKER GRAY

POWERS FLICK & HOEHL

Attorneys for Defendants

App. 46

By SAMUEL J. POWERS, JR.

Samuel J. Powers, Jr.

2409 First Federal Building

One Southeast Third Avenue

Miami, Florida 33131

305 358-8880

App. 47

APPENDIX D (3)

IN THE DISTRICT COURT OF APPEAL

THIRD DISTRICT OF FLORIDA

Case No. 77-431

PAUL MARK RYAN, ARTHUR T. MCMANMON,

JAMES M. CONNOLLY, Trustees of the

EDWARD C. DONNELLY, JR. REVOCABLE TRUST

dated October 8, 1968,

Appellants,

vs.

MARY ELIZABETH DONNELLY,

Appellee.

B. The Plaintiff Did Not, And Cannot, Show That Her

Cause Of Action Arose Out Of The Defendants’

Business In The State Because The Alleged Activities

Of The Defendants In Florida Occurred After The

Plaintiff's Cause of Action Arose.

This appeal can be resolved simply and correctly by

applying the commonsense rule enunciated by the Florida

courts that a nonresident cannot be subject to service of

process under Florida's “doing business” long-arm

statutes (Sections 48.181 and 48.071) if the plaintiff's cause

of action arose before the nonresident was operating, con-

ducting, engaging in, or carrying on a business or business

venture in the state or before it had an office or agency in

the state. American Baseball Cap, Inc. v. Duzinski, 308

App. 48

So.2d 639 (Fla. Ist DCA 1975); Masters, Inc. v. Corley,

222 So.2d 465 (Fla. 3d DCA 1969); Baker v. Commercial

Travelers Mutual Accident Association Of America, 150

F.Supp. 725 (S.D. Fla. 1955); see Henschel-Steinau Co. v.

Harry Schorr, Inc., 302 So.zd 198, 199 n. 3 (Fla. 4th DCA

1974); Lipman v. Zuk, 244 So.2d 496 (Fla. 3d DCA 1970).

That is, the “connexity” requirement of the long-arm

statutes cannot possibly be met if the defendants were not

“doing business” in the state at the time the plaintiff's

cause of action arose. American Baseball Cap, Inc. v.

Duzinski, 308 So.2d at 644.

In this case, the plaintiff's cause of action — a claim

“for a dower interest in all assets held or claimed to be held

by the Trustees under the Edward C. Donnelly, Jr.

Revocable Trust dated October 8, 1968” (A. 3) — clearly

arose at the time of her husband’s death (October 15,

1972). This is so because dower rights become vested only

upon death, In re Ginsberg’s Estate, 50 So.2d 539 (Fla.

1951); Bowler v. Bowler, 159 Fla. 447, 31 So.2d 751 (1947);

Bennett v. Bennett, 157 Fla. 627, 26 So.2d 650 (1946);

Robison v. Krause, 136 So.2d 373 (Fla. 2d DCA 1962),

and because all claims for dower relate back to the time of

death. Griley v. Griley, 43 So.2d 350 (Fla. 1949); Hender-

son v. Usher, 125 Fla. 709, 170 So. 846 (1936); Murphy v.

Murphy, 125 Fla. 885, 170 So. 868 (1936); see in re Estate

of Geringer, 300 So.2d 710 (Fla. 3d DCA 1974), cert.

denied 311 So.2d 114 (Fla. 1975).

Furthermore, all of the specific transactions or opera-

tions from which the plaintiff alleges that her claim arose

took place prior to or at the time of her husband's death.

In Count I of her complaint (A. 10-11), the plaintiff alleges

that Edward Donnelly, Jr. did not effectively deliver his

shares of the business trust to the trustees of the revocable

App. 49

trust during his lifetime thereby leaving ownership of the

shares in himself: clearly the inadequacy of any such

delivery transaction must relate to the time prior to

E.C.D.. Jr.'s death. In Count II (A. 11-13), the plaintiff

alleges that the inter-vivos revocable trust created by

E.C.D.. Jr. was illusory and testamentary and therefore in-

valid. Just as clearly as with Count I, the allegation of a

defectively created and administered trust must refer to a

time prior to the death of E.C.D., Jr. In Count III (A. 14),

the plaintiff alleges that her dower interest constitutes a

debt against E.C.D., Jr.’s estate; obviously that debt, if it

actually exists, arose at the time of E.C.D., Jr.'s death

when the plaintiff's right to dower vested. See, e.g., in re

Ginsberg’s Estate. 50 So.2d at 541.

Thus, the plaintiff's cause of action arose before or at

the time of her husband's death. But all of the defendant's

activities cited by the trial judge in his order of February 8,

1977 (A. 127-134) and by the plaintiff in her complaint and

memos of law and fact (A. 7-10, 81-118, 135-402) as

evidence of the trustees of the revocable trust doing

business in Florida took place after the death of E.C.D.., Jr.

To be more specific, the defendants could not possibly

have been doing business in Florida through an agency

relationship with executors of the estate of Edward C.

Donnelly, Jr. at the time the plaintiffs cause of action

urose, as stated by the trial judge (A. 130-133, paragraphs

10-13) and by the plaintiff (A. 8-10, paragraphs 42-52; 28-

36: 82: 91-92: 162-170), because the executors were not ap-

pointed and did not perform any of their functions until

ufter the death of E.C.D., Jr. Consequently, the plaintiff's

cause of action could not have arisen out of any transac-

tion or operation performed by the alleged agents of the

defendants because those agents had not even been ap-

App. 50

pointed, let alone functioning, at the time of E.C.D., Jr.'s

death. There has not been, nor can there be, the showing of

a connection (“connexity”) between the activities of the

alleged agents’ activities in Florida and the plaintiff's cause

of action as required by the long-arm statutes.

In the same manner, the defendants could not have

been doing business in Florida through “transactions’’’ by

and for the revocable trust itself at the time the plaintiff's

cause of action arose, as suggested by the trial judge (A.

130, paragraphs 8-9) and by the plaintiff (A. 82, 156-161),

because all of these transactions took place well after the

death of E.C.D., Jr. As a result, the plaintiff's cause of ac-

tion could not possibly have arisen from these transac-

tions, as required by the long-arm statutes, because they

simply had not yet been performed at the time the plain-

tiffs cause of action arose. There has not been, nor can

there be, a showing of “‘connexity” between the alleged

transactions of the revocable trust in Florida and the

plaintiff's cause of action.

Finally, the defendants could not have been doing

business in Florida through their “direction, operation,

management, and control” of the business trust at the time

the plaintiff's cause of action arose, as declared by the trial

judge (A. 128-130, paragraphs 4-7) and by the plaintiff (A.

7-8, paragraphs 28-41; 16-27; 82-91; 137-155), because the

defendants had no effective control over the business trust

at the time of E.C.D., Jr.’s death. At that point their

ownership interest was merely as stockholders, which

*Note that the trial judge’s word — “transactions” — (A. 130,

paragraph 8) is exactly the same word used in Section 48.181 (1),

Florida Statutes, which requires that the plaintiffs cause of action

arise from a “transaction or operation connected with or incidental

to” doing business in Florida.

App. 51

clearly is not sufficient to consider them as “doing

business” in the state. Uible v. Landstreet, 392 F.2d 467

(Sth Cir. 1968). The provision of the revocable trust upon

which the trial judge placed reliance to proclaim that the

defendants legally had management control, not just

shareholder control, over the business trust did not, by its

own terms, take effect until after the death of E.C.D., Jr.

(A. 128-129, paragraphs 5-6). And all of the activities of

the defendants relied upon by the trial judge as a basis for

establishing their actual control of the business trust took

place after the death of E.C.D., Jr. (A. 129-130, paragraph

7). The plaintiff herself alleged in her complaint that the

defendants exercised no control whatsoever over the

business trust up to the time of E.C.D., Jr.'s death (A. 8,

paragraph 35; A. 11, paragraph 57).

Clearly, the plaintiff's cause of action could not have

arisen from the defendants’ management of the business

trust because they had no effective control prior to or at

the time of the death of the plaintiffs husband. There has

not been, nor can there be, a showing of “‘connexity”’ be-

tween the alleged control of the business trust by the defen-

dants and the plaintiff's cause of action.

Indeed, there can be no showing of “‘connexity” be-

tween any activities of the defendants and the plaintiff's

cause of action because the defendants simply had no

activities in Florida at the time the plaintiff's cause of ac-

tion arose, i.e., at the time of her husband's death. As a

result, the attempted service on the defendants by service

on the Secretary of State and by service on their alleged

ugents in Florida is invalid and ineffectual to give the trial

court jurisdiction over the persons of the defendants.

App. 52

The argument contained in this section is itself suf-

ficient reason why the trial judge’s order of February 8,

1977 should be reversed. Nonetheless, we believe that it is

appropriate to discuss all of the other factors raised by the

trial judge in his lengthy opinion to show that none of

them satisfy the two key requirements of the long-arm

statute Section 48.181 (1), Florida Statutes (1975).

* * *

App. 53