Opposition Brief — Tropigas, S.A. v. Anderson

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SEP 20 1988 |

CASE NO. 65,313 ALEXANDER L. STEVAS,

CLERK a

in the

Supreme Court

of the

United States

OCTOBER TERM, 1984

TROPIGAS, S.A.,

Petitioner,

vs.

RICHARD ANDERSON et al.,

Respondents.

On Petition for Writ of Certiorari to the

District Court of Appeal of Florida,

Third District

RESPONDENTS’ BRIEF IN OPPOSITION

PATRICE A. TALISMAN of

DANIELS AND HICKS, P.A.

1414 duPont Building

169 East Flagler Street

Miami, Florida 33131

(305) 374-8171

and

ROBERT J. DICKMAN, ESQ.

4675 Ponce de Leon Boulevard

Suite 302

Coral Gables, Florida 33146

Attorneys for Respondents

(Ga pv

TABLE OF CONTENTS

STATEMENT OF THE CASE ................. 2

REASONS WHY THE WRIT SHOULD BE

50 da sk coke eae Chee SALOU Se OheS s. Bedh yi 8

1. THE FACTS AS SHOWN BY THE RECORD

BELOW DO NOT RAISE THE QUESTION

PRESENTED IN THE PETITION BECAUSE

TROPIGAS, S.A. IS A RESIDENT OF

NA A554 bey CUR SWONS A aves ws aw ores 8

2. THE FACTS AS SHOWN BY THE RECORD

BELOW DO NOT RAISE THE QUESTION

PRESENTED BY THE PETITION BECAUSE

THE FACTS ESTABLISH MORE THAN

“MINIMUM CONTACTS.” ................ 10

CIEE, Fohinivin& Cowes cals dk ivalions cscs ss 15

CERTIFICATE OF SERVICE ................. 16

TABLE OF CASES CITED

Page

Helicopteros Nacionales De Columbia, S. A. v. Hall,

104 S.Ct. 1868 (1984) ........... . 10, 11-12, 13-14

Hoffman v. Air India,

393 F.2d 507 (5th Cir. 1968), cert. denied 393

U.S. 924, 21 L.Ed.2d 260, 89 S.Ct. 255 (1969). . 13

International Shoe Co. v. Washington,

SED TET Be «cvs « Reka census dias 10

Perkins v. Benguet Consolidated Mining Company,

A SETS Tee vo NG ie eek Cece es 13

Worldwide Volkswagen Corp. v. Woodson,

444 US. 266, 201(1960) . 0.6. ce 9,10, 11

OTHER AUTHORITIES CITED

Pia. BA. Re ois ieee at es 3

ge Se | eee rrr ys 3

yp eee Pee Te ee ee 3

ime. 2. a

ii

CASE NO. 65,313

in the

Supreme Court

of the

United States

OCTOBER TERM, 1984

TROPIGAS, S.A.,

Petitioner,

Vs.

RICHARD ANDERSON et al.,

Respondents.

On Petition for Writ of Certiorari to the

District Court of Appeal of Florida,

Third District

RESPONDENTS’ BRIEF IN OPPOSITION

The respondents, Richard Anderson, Percival

Anderson, Melva Anderson, Trevor Anderson and Sharon

Anderson, respectfully request that this Court deny

the petition for writ of certiorari, seeking review of the

opinion of the Third District Court of Appeal of Florida

in this case. That opinion is reported at 447 So.2d 338.

STATEMENT OF THE CASE

This petition for certiorari arises out of a personal

injury action in which respondents, the Andersons, are

seeking compensation for the serious injuries they

received in a liquid propane gas explosion caused by a

defective lpg cylinder and/or valve provided to them

by petitioner, Tropigas, S.A. The Andersons are Jamaican

citizens, and the explosion occurred in Jamaica. However,

because the Andersons were so severely burned, they

were required to seek medical attention in the United

States and now reside in Dade County, Florida. (A.A.

469, 470).

The Andersons filed this suit in Dade County against

Tropigas International Corporation (not a party to this

petition) and its wholly owned subsidiary, Tropigas, S.

A. Tropigas, S.A. moved to dismiss for lack of personal

jurisdiction. In response to this motion, the Andersons

took 22 depositions of the officers and personnel of

Tropigas, S.A., who are located in Coral Gables, Dade

County, Florida, in order to ascertain the true

jurisdictional facts of this cause. Based on these

depositions, the Andersons argued that Tropigas, S.A.

actually has its principal place of business in Dade

County and therefore it is subject to suit there, no

matter where the cause of action arose. The trial court

accepted respondents’ position and denied the motion

to dismiss. This ruling was affirmed upon appeal. The

Florida Supreme Court refused to accept jurisdiction.

The evidence which supports the finding that

Tropigas, S.A. has its principal place of business in

Coral Gables shows, among other things, the following:

1. Tropigas, S.A.’s Chairman of the Board,

President, Treasurer, Secretary and Comptroller

are located in Coral Gables. All of these corporate

officers work out of offices at 1701 Ponce de

Leon Boulevard. (A.A. 15, 41-41A, 68, 70, 146-147,

178, 212-214)' 1701 Ponce was also the site of

Board of Directors’ meetings of Tropigas, S.A.,

at all times material. (A.A. 18, 104, 150).

2. 1701 Ponce de Leon Boulevard is listed as

the principal office in a form filed by Tropigas,

S.A., in Puerto Rico. (A.A. 13). It is also listed

as the corporate headquarters of Tropigas,

S.A., in its parent’s 10K filing with the SEC.

(A.A. 5).

3. The day to day operations of the different

offshore divisions are run by local managers

who are hired and fired by the President of

Tropigas, S.A. in Coral Gables. (A.A. 97, 158-159,

174, 382-383).

4. These local managers are subject to

limitations as to how much money they can

spend before approval from the President at

1701 Ponce is required. (A.A. 121-122, 374-378).

“A.A” refers to Appellees’ Appendix which was the appendix

supplied by respondents to the Third District Court of Appeal of

Florida. Florida Rule of Appellate Procedure 9.130(d) states that

in proceedings to review non-final orders, such as the one issued

here, “a record shall not be transmitted to the court.” Rather, the

parties provide appendices which contain those portions of the

record deemed necessary to an understanding of the issues presented.

Fla.R.App.P. 9.130(c) and 9.220. Unless otherwise indicated, all

emphasis is supplied.

5. Supplies are purchased in the United States

and Florida out of 1701 Ponce for Tropigas,

S.A.’s offshore operations. (A.A. 27, 30, 119-120,

390-391). At times it is represented to some

suppliers that Tropigas, S.A. is an American

company with a Coral Gables address. This is

done so that the suppliers will deal with and

ship to Tropigas, S.A. (A.A. 388). Purchase

orders of Tropigas, S.A. have the Coral Gables

address printed on them and the “main office”

copy of these purchase orders is sent to 1701

Ponce and retained there. (A.A. 389, 396, 410).

6. Tropigas, S.A., maintains a checking account

and a Nassau Eurodollar account at Southeast

First National Bank of Miami. There are no

other accounts for all of Tropigas, S.A. anywhere

else. Each division has its own local bank account

which is also overseen by the personnel at

1701 Ponce. (A.A. 21, 288-290, 291, 298).

7. The statements of the Southeast account

are sent to 1701 Ponce. (A.A. 33, 275-276, 282-283,

299). The signatories on these accounts are

located at 1701 Ponce. (A.A. 33, 255-256, 339).

Mr. Finley, the Assistant Comptroller for

Tropigas, S.A., is located at 1701 Ponce and

solely handles the transfer of funds into and

out of Tropigas, S.A.’s investment account.

(A.A. 273, 286, 289-293, 310).

8. Profits from the different Tropigas, S.A.

divisions are sent by check or wire transfer to

the accounts at Southeast. (A.A. 26, 84, 248,

293, 306-307, 343). The money in the checking

account is then used to pay for goods purchased

for Tropigas, S.A. and to pay Tropigas

International Corp. the administrative fees and

dividends owed it by Tropigas, S.A. (A.A. 27,

249-251, 252, 271, 294).

9. Financial statements of the different offshore

divisions are consolidated at 1701 Ponce and

are reviewed there by Tropigas, S.A.’s officers.

(A.A. 24, 51, 65-66, 76-77, 101-102, 176, 188,

348). Copies of the general ledgers of all the

divisions are maintained at 1701 Ponce. (A.A.

217-218).

10. Major capital acquisitions and sales by

the divisions must be approved by the President

and Board of Directors of Tropigas, S.A. (A.A.

104, 127-139, 163-164, 184-185). The decision of

what dividend the corporation will pay is also

made at 1701 Ponce. (A.A. 155).

11. Contracts for Tropigas, S.A. are negotiated

from 1701 Ponce. Some of these contracts involve

the acquisition of valves and cylinders. (A.A.

31, 54, 75, 117-118, 393). Purchase orders are

reviewed at 1701 Ponce for technical accuracy.

This includes orders which originate in the

various offshore divisions. (A.A. 397, 402, 418-422,

424-426). Also, record keeping policies are

instituted through the 1701 Ponce office for all

of the divisions. If the divisions don’t comply

with these policies, the President of Tropigas,

S.A. gets involved. (A.A. 47-48, 79-80, 81-82).

12. Tropigas, S.A. maintains both a street

address and a post office box in Coral Gables.

(A.A. 389, 409, 410).

13. The only engineers employed to give

technical advice to all divisions of Tropigas,

S.A. are located at 1701 Ponce. (A.A. 414, 429-430,

433, 438-439, 445-446). These engineers do quality

control in the different divisions. (A.A. 442-443).

They must also give their approval before an

offshore division can purchase a new type of

valve or other equipment. (A.A. 113, 398-399,

415-417).

14. The President of Tropigas, S.A. and the

local managers consult with these engineers

at 1701 Ponce. The managers also travel to

1701 Ponce to consult with the President at

his office. (A.A. 61-62, 423, 445-446, 448, 458,

460). Yearly profit plan reviews were conducted

annually at 1701 Ponce to set operational goals

for each of the offshore divisions. These goals

include amount and type of sales expected to

be made, expenses incurred, expansion expected,

etc. (A.A. 87, 124-127, 203-204, 355). If, during

the year, a division did not meet its profit

plan, the President of Tropigas, S.A. would

review that division. He also establishes

incentive programs for the managers to

encourage them to meet their profit plans and

he is the one who gives them raises. (A.A. 176,

208-209, 315).

15. No one outside of Florida has any authority

over more than one local operation. The Puerto

Rico office does negotiate supply contracts for

some of the divisions, but not all of them.

(A.A. 38-39, 189-191, 215-216). The local managers

report to the President of Tropigas, S.A. at

1701 Ponce—he is their boss, the one who

must approve or disapprove their decisions.

He establishes the corporate policy regarding

their duties and responsibilities and directs

the operation of the company. (A.A. 41B-44,

49-50, 71-72, 86, 105, 142-144, 171-172, 181,

206-207). He is responsible for safety at all of

the offshore divisions. (A.A. 56-60. 91-95).

16. When Rodezno was hired as manager of

offshore retail operations, Bullen, the President

of Tropigas, S.A., sent a telex from 1701 Ponce

to all the Caribbean and Central American

divisions stating:

I am pleased to advise you that effective

from August 9, 1982 R. Roberto Rodezno

has joined the Tropigas Miami Staff as

Manager-Latin American Retail Operations.

In this position, Mr. Rodezno will have direct

responsibility for the Tropigas Central

America Merchandise operations and will

support me in the management of the

operations. Roberto’s background and

experience is such that he will provide added

strength to the Tropigas Miami Staff and

strong support to each of you. I am sure I

can count on you to give Roberto your full

support in his new position. (A.A. 106).

Not only is Tropigas, S.A.’s home office located in

Dade County, as shown by the above evidence, but

there is also considerable activity carried on there that

relates to the accident involved in this cause: valves

are tested, approved for purchase and purchased through

the Coral Gables office; cylinders are purchased and

repaired through the Coral Gables office; and the

President of Tropigas, S.A., who is located in Coral

Gables is responsible for safety in all of the offshore

divisions. (A.A. 52, 83, 91-95, 160, 392, 415-417, 440-441).

The evidence available on these points is somewhat

limited due to the position taken by Tropigas, S.A.

below that discovery should relate solely to facts relevant

to the jurisdiction and forum non conveniens questions.

REASONS WHY THE WRIT SHOULD BE DENIED

1.

THE FACTS AS SHOWN BY THE RECORD

BELOW DO NOT RAISE THE QUESTION

PRESENTED IN THE PETITION BECAUSE

TROPIGAS, S.A. IS A RESIDENT OF

FLORIDA.

The sole question presented in the petition is:

Whether it is a violation of the 14th Amendment

for a Florida court to assert in personam

jurisdiction over a non-resident Panamanian

corporation in personal injury litigation arising

from an accident which occurred in Jamaica,

West Indies, where the alien corporate defendant

does not do business in Florida and the plaintiffs

were residents and citizens of Jamaica at the

time of the accident. (Brief of Petitioner, p.i).

But the facts of the record do not support this question.

Rather the facts show that Tropigas, S.A. is a resident

of Dade County, Florida.

The officers of Tropigas, S.A. are located in Florida.

Those officers hire and fire the local managers of each

division, approve expenditures by the local managers,

review the financial statements of all the off-shore

divisions, maintain the only bank accounts that exist

for all of Tropigas, S.A., oversee the bank accounts of

each division, determine what dividend the corporation

will pay, review the divisions’ yearly profit plans, establish

incentive programs for the local managers, and give the

managers raises. These officers are the only people in

Tropigas, S.A. who have control over more than one

local operation of the company. Clearly, these facts and

the others cited in the Statement of the Case show that

the home office — principal place of business of Tropigas,

S.A. is in Florida.

A corporation is deemed to be a resident of the

state where it is incorporated and the state where it

has its principal place of business. Since Tropigas, S.A.

has its home office — principal place of business in Florida,

it is treated as a Florida resident. Therefore due process

considerations never come into play for “the due process

clause of the Fourteenth Amendment limits the power

of a state court to render a valid personal judgment

against a non-resident defendant” only. World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980).

2.

THE FACTS AS SHOWN BY THE RECORD

BELOW DO NOT RAISE THE QUESTION

PRESENTED BY THE PETITION BECAUSE

THE FACTS ESTABLISH MORE THAN

“MINIMUM CONTACTS.”

It seems pointless to argue minimum contacts where

the defendant is a resident of the forum state. However,

in an abundance of caution, respondents point out that

even if Tropigas, S.A. were not a resident of Florida,

the facts as shown above establish that Tropigas, S.A.

has more than those certain minimum contacts with

Florida such that maintenance of the suit in this state

does not offend traditional notions of fair play and

substantial justice.

That this is true is best illustrated by comparing

this cause with the facts as shown in the cases relied on

by appellant to create conflict, Helicopteros Nacionales

De Columbia, S.A. v. Hall, 104 S.Ct. 1868 (1984); World-

Wide Volkswagen Corp. v. Woodson, 444 U.S. 286

(1980); International Shoe Co. v. Washington, 326 U.S.

310 (1945).

In International Shoe, this Court held that a

corporation’s use of salesmen residing in Washington

to solicit orders for merchandise from Washington

customers which resulted in a substantial volume of

merchandise being shipped to those customers was

sufficient to support Washington’s assertion of in

personam jurisdiction over the corporation.

10

In World-Wide Volkswagen, the jurisdictional facts

were as follows:

Petitioners [a retailer and wholesale regional

distributor which were incorporated and had

their places of business in New York] carry on

no activity whatsoever in Oklahoma. They close

no sales and perform no services there. They

avail themselves of none of the privileges and

benefits of Oklahoma law. They solicit no

business there either through salespersons or

through advertising reasonably calculated to

reach the State. Nor does the record show

that they regularly sell cars at wholesale or

retail to Oklahoma customers or residents or

that they indirectly, through others, serve or

seek to serve the Oklahoma market. In short,

respondents seek to base jurisdiction on one,

isolated occurrence and whatever inferences

can be drawn therefrom: the fortuitous

circumstance that a single Audi automobile,

sold in New York to New York residents,

happened to suffer an accident while passing

through Oklahoma.

444 U.S. at 295. Based on these facts, this Court held

that it would be a denial of due process for the courts

of Oklahoma to exercise in personam jurisdiction over

the petitioners.

In Helicopteros, the petitioner was a Columbian

corporation with its principal place of business in Bogota,

Columbia. It never had an agent for the service of

process within Texas; it never performed helicopter

operations in the state or sold any product that reached

11

the state; it never solicited business in Texas, never

signed any contract in Texas, never had any employee

based there and never recruited an employee in Texas.

It never maintained an office or establishment or records

there and had no stockholders located there. As this

Court stated:

Basically, Helicol’s contacts with Texas consisted

of sending its chief executive officer to Houston

for a contract-negotiation session; accepting

into its New York bank account checks drawn

on a Houston bank; purchasing helicopters,

equipment, and training services from Bell

Helicopter for substantial sums; and sending

personnel to Bell’s facilities in Fort Worth for

training.

104 S.Ct. at 1873. Based on these facts, this court held

that “Helicol’s contacts were insufficient to satisfy the

requirements of the Due Process clause of the Fourteenth

Amendment.” 104 S.Ct. 1874.

In the cause at bar, however, Tropigas, S.A.’s officers

are located in Florida as are the general ledgers of all

its divisions. It also maintains a checking account and

Nassau Eurodollar account at Southeast First National

Bank of Miami. The officers located in Florida hire the

local managers of each division and conduct other business

of Tropigas, S.A. in this state. At the very least, these

activities can be described as an overseeing of ail of the

Tropigas, S.A.’s divisions from this state. Further,

Tropigas, S.A.’s only stockholder, Tropigas International

Corporation, is located in this state.

12

Finally, service was effected on Tropigas, S.A. by

personal service on an officer of the corporation resident

in the state, pursuant to §48.081(5), Fla. Stat. which

states:

Where a corporation has a business office within

the state and is actually engaged in the

transaction of business therefrom, service upon

any officer or business agent, resident in the

state, may personally be made, pursuant to

this section, and it is not necessary in such

case, that the action, suit or proceeding against

the corporation shall have arisen out of any

transaction or operation connected with or

incidental to the business being transacted

within the state.’

The opinion of the Third District Court of Appeal

specifically cited to this statutory provision in affirming

the trial court’s holding. Clearly, these facts are sufficient

to establish those contacts necessary to support an

exercise of in personam jurisdiction by the courts of

Florida.

In fact, this cause is very similar to Perkins v.

Benguet Conselidated Mining Company, 342 U.S. 437

(1951). The facts of Perkins were described by this

Court in Helicopteros, 104 S.Ct. at 1872, as follows:

In Perkins, the Court addressed a situation in

which state courts had asserted general

*This statute has been found valid under the due process

clause of the Fourteenth Amendment. Hoffman v. Air India, 393

F.2d 507 (5th Cir. 1968) cert. denied, 393 U.S. 924, 21 L.Ed.2d 260,

89 S.Ct. 255 (1969).

13

jurisdiction over a defendant foreign corpcration.

During the Japanese occupation of the Philippine

Islands, the president and general manager of

a Philippine mining corporation maintained

an office in Ohio from which he conducted

activities on behalf of the company. He kept

company files and held directors’ meetings in

the office, carried on correspondence relating

to the business, distributed salary checks drawn

on two active Ohio bank accounts, engaged an

Ohio bank to act as transfer agent, and

supervised policies dealing with the

rehabilitation of the corporation’s properties

in the Philippines. In short, the foreign

corporation, through its presidert, “ha{d] been

carrying on in Ohio a continuous and systematic

but limited, part of its general business,” and

the exercise of general jurisdiction over the

Philippine corporation by an Ohio court was

“reasonable and just.” 342 U.S., at 438, 445, 72

S.Ct., at 414, 418.

Just as in Perkins, Tropigas, S.A. is carrying on a

continuous and systematic, if limited, part of its general

business in Florida. Therefore, exercise of general

jurisdiction over Tropigas, S.A. by the Florida court is

reasonable and just and does not violate the due process

clause of the Fourteenth Amendment.

14

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

PATRICE A. TALISMAN of

DANIELS AND HICKS, P. A.

1414 duPont Building

169 East Flagler Street

Miami, Florida 33131

(305) 374-8171

and

ROBERT J. DICKMAN, ESQ.

4675 Ponce de Leon Boulevard

Suite 302

Coral Gables, Florida 33146

Attorneys for Respondents

By

PATRICE A. TALISMAN

15

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true cory of the

foregoing Respondents Brief in Opposition was mailed

this 19th day of September, 1984, to: CHRISTIAN D.

KEEDY, P. A., Counsel for Petitioner, 1301 Alfred I.

duPont Building, 169 East Flagler Street, Miami, Florida

33131; ROBERT J. BLACK, ESQ., 420 South Dixie

Highway, Coral Gables, Florida 33146; and DEBRA L.

BRADY, ESQ., 1301 Alfred I. duPont Building, 169

East Flagler Street, Miami, Florida 33131. All parties

required to be served have been served.

PATRICE A. TALISMAN

16

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