Petition for Writ of Certiorari — Etheridge v. Andrews

89-913

No.

In The

Supreme Court of the United States

October Term, 1989

7%

vw

ELWIN ETHERIDGE,

Petitioner,

CHARLES S. ANDREWS AND

SHELBY S. ANDREWS, his wife,

xespondents

a oo —

PETITION FOR WRIT OF CERTIORARI TO THE

FLORIDA FIFTH DISTRICT COURT OF APPEAL

&

od

Nancy A. Lauten, Eseu!

Counsel of Record

and

Grorce A. VAKA, EsQuik!

FoOwLeER, Wite, GInecen, Bor

VILLAREAL & BANKER, P.A

Post Office Box 1438

Tampa, Florida 33601

(813) 228-7411

Attorneys for Petitione?

COCKLE LAW BRIEF PRINTING CO,, (800) 225-4

OR CALL COLLECT (402) 342-283

wr

QUESTION PRESENTED

Whether the minimum contacts of a corporation,

which are sufficient to satisfy constitutional requirements

as to the corporation, may be imputed to a corporate

officer so that he is subject to the in personam jurisdiction

of the forum state for his acts as a corporate decision-

maker.

ii

TABLE OF CONTENTS

QUESTION PRESENTED «. .¢scss0csceulsaeeaeeee es

PETITION FOR WRIT OF CERTIORARI TO THE FLOR-

IDA FIFTH DISTRICT COURT OF APPEAL .......

OPINIONS BELOW

See esreCh ERO e OS 2 8 00 6S SO 4 2 Ow eS ee Ss

JURISDICTION .. ..... 000 000.08 e=e eee ele

CONSTITUTIONAL PROVISION AND FLORIDA

STATUTE INVOLVED

STATEMENT OF THE CAQ@.ss545055505507

1. The Litigation

2. How The Federal Question Was Presented.........

REASONS FOR GRANTING THE WRIT ...........

POINT I.

THE RULING OF THE FIFTH DISTRICT COURT

OF APPEAL WRONGFULLY SUBJECTS ELWIN

ETHERIDGE TO THE JURISDICTION OF THE

FLORIDA COURTS. ....ssceeveces vse aeuaeeuee

POINT II.

THE USE OF THE FLORIDA LONG-ARM STAT-

UTE TO REQUIRE ELWIN ETHERIDGE TO

DEFEND THIS CASE ON THE MERITS VIO-

LATES HIS RIGHTS UNDER THE FOUR-

TEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION

CONCLUSION . .....0000s050855050 5 ne enn

ili

TABLE OF AUTHORITIES

Page

CASEs:

Asahi Metal Industry Company v. Superior Court of

California, Solano County, 480 U.S. 102 (1987)

POUEMGE Mien vee sene vis vet rareecs ss 9, 13, 14, 15, 16, 20

Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)

DIARRA Db aecsaeseseseseescsaseveses 9, 10, 13, 19

Calder v. Jones, 465 U.S. 783 (1984).............----. 10

Hanson v. Denckla, 357 U.S. 235 (1958)............... 19

International Shoe Company v. Washington, 326 U.S.

a wee cueuewws 9, 12, 18

Kulko v. Superior Court of California, 436 U.S. 84

Neen ee esepewaakes 16

Rouen @. Sevcuuk, 444 U.S. 320 (1980).................. s)

Streeter v. Sullivan, 509 So.2d 268 (Fla. 1987).....3, 5, 7

The Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1986)..... 1

World-Wide Volkswagen v. Woodson, 444 U.S. 286

ee 9, 10

OTHER AUTHORITIES:

Section 48.193, Florida Statutes (1987)................. 2

Section 48.193(1)(g), Florida Statutes (1984 Supp.) .... 11

Section 440.11, Florida Statutes (1987)................. 7

Fourteenth Amendment, United States Constitution 2, 6, 8

ieee cccccccceccccccces 1

PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA FIFTH DISTRICT

COURT OF APPEAL

Elwin Etheridge respectfully petitions for a writ of

certiorari to review an order of the Florida Fifth District

Court of Appeal entered on July 25, 1989.

,

-

OPINIONS BELOW

The decision of the Fifth District Court of Appeal is a

per curiam affirmance of a lower court order and is set

out as Appendix A, p. 1a of the petition. This decision is

not reported. ,

The order of the Circuit Court of the Fifth Judicial

Circuit of the State of Florida, in and for Marion County,

Florida, is set out as Appendix B, p. 2a. This decision is

not reported.

,%

A

JURISDICTION

The judgment of the Fifth District Court of Appeal

was entered on July 25, 1989. Rehearing was sought and

subsequently denied. A copy of that order is set out as

Appendix C, p. 4a of this petition. This decision consti-

tutes a decision from the highest state court empowered

to hear this cause and further proceedings may be taken

directly to this Court. The Florida Star v. B.].F., 530 So.2d

286 (Fla. 1986). Jurisdiction of this Court is invoked under

28 U.S.C. §1257.

CONSTITUTIONAL PROVISION AND

FLORIDA STATUTE INVOLVED

Fourteenth Amendment, United States

Constitution:

No State shall . . . deprive any person of life,

liberty, or property, without due process of

ere

Section 48.193, Florida Statutes (1987):

(1) Any person, whether or not a citizen or

resident of this state, who personally or

through an agent does any of the acts enu-

merated in this subsection thereby submits

himself and, if he is a natural person, 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 acts:

(a) Operating, conducting, engaging in, or

carrying on a business or business venture

in this state or having an office or agency in

this state.

» » *

(f) Causing injury to persons or property

within this state arising out of an act or

omission by the defendant outside this

state, if, at or about the time of the injury,

either:

1. The defendant was engaged in

solicitation or service activities within

this state; or

2. Products, materials, or things pro-

cessed, serviced, or manufactured by

the defendant anywhere were used or

consumed within this state in the ordi-

nary course of commerce, trade, or use.

,.

-

STATEMENT OF THE CASE

1. The Litigation

Elwin Etheridge, the Petitioner, is a citizen and resi-

dent of Mississippi. He is being sued as an individual in a

Florida court by a citizen and resident of Mississippi. In

April of 1988, the Respondents, Plaintiffs below, brought

suit against the Petitioner in Marion County, Florida for a

work-related accident that occurred on April 30, 1986. See

Appendix D, p. 5a. The facts giving rise to the action

below are not complex. On April 30, 1986, Charles S.

Andrews, a foreman for Etheridge Petroleum and Elec-

tric, Inc. (Etheridge Petroleum), suffered injuries in an

accident at the Charter Oil Gasoline Station in Silver

Springs, Florida. Etheridge Petroleum is a Mississippi

corporation headquartered in Jackson, Mississippi. The

Petitioner is an employee and corporate officer of

Etheridge Petroleum. The corporation had sent a crew of

three men into Florida to perform work that it was obli-

gated to perform under agreements with Charter

Marketing.

Mr. Andrews, who is receiving Florida workers’ com-

pensation benefits for his injuries, is now suing Mr.

Etheridge in the Florida court, individually, pursuant to

Streeter v. Sullivan, 509 So.2d 268 (Fla. 1987). Streeter

establishes an exception to the statutory workers’ com-

pensation immunity granted to co-employees in those

cases in which the co-employee’s act of gross negligence

results in an injury to a fellow employee. This exception

also encompasses the actions of corporate officers. The

original complaint alleged that Elwin Etheridge, as corpo-

rate officer and employee of Etheridge Petroleum, acted

with gross negligence and was guilty of willful and wan-

ton misconduct resulting in a foreseeable injury to Mr.

Andrews. See Appendix D, p. 8a.

On June 8, 1988, Mr. Etheridge served his motion to

dismiss the Andrews’ complaint because of lack of per-

sonal jurisdiction over the Petitioner. See Appendix E, p.

lla. Affidavits and a memorandum of law were filed in

support of the motion. These documents reveal that

Elwin Etheridge is a resident and citizen of the State of

Mississippi and has been such a resident and citizen at all

relevant times, including April 30, 1986. Elwin Etheridge

owns no real property located in the State of Florida. He

has not, in his individual capacity, engaged in solicitation

or service activities within the State of Florida. As an

individual, Elwin Etheridge is not involved with prod-

ucts, materials, or things processed, serviced or manufac-

tured by himself that were used or consumed inside the

State of Florida at the time of the accident. The affidavits

also established that on the date of the accident, Elwin

Etheridge was not inside the State of Florida and specifi-

cally was not at the site of the accident alleged in the

Complaint filed by Mr. Andrews. Any discussions about

the Florida job took place in Mississippi. See Appendix F,

p. 14a. The Respondents filed an affidavit and memoran-

dum of law in opposition to the motion to dismiss. See

Appendix G, p. 17a. On September 13, 1988, the Circuit

Court of the Fifth Judicial Circuit of the State of Florida

entered its order granting Elwin Etheridge’s motion to

dismiss the action for lack of jurisdiction over the person.

See Appendix H, p. 20a. The Andrews did not seek

rehearing. The Andrews did not appeal this final order.

Thirty-one days later, on October 14, 1988, the

Andrews filed an amended complaint. See Appendix I, p.

22a. The only new material added to the amended com-

plaint was the Andrews’ assertion that Elwin Etheridge

was subject to the iurisdiction of the courts of the State of

Florida pursuant to Section 440.11(1), Florida Statutes

(1987) and Streeter v. Sullivan, 509 So.2d 268 (Fla. 1987).

No new affidavits or evidence was served with the

amended complaint. On October 24, 1988, Elwin

Etheridge filed a motion to strike this amended complaint

on the grounds that the lower court had previously ruled

that it lacked jurisdiction over the person of Elwin

Etheridge and there was no longer a proceeding in Flor-

ida in which the Andrews could pursue this matter. See

Appendix J, p. 28a.

On November 10, 1988, the Judge of the Circuit Court

entered his order on motion denying Elwin Etheridge’s

motion to strike the amended complaint. See Appendix B,

p. 2a. The Judge ruled that the Andrews had produced

sufficient affidavits and alleged sufficient facts to warrant

jurisdiction over Elwin Etheridge. An appeal was taken to

the Fifth District Court of Appeal. That Court affirmed,

without opinion, the order of the lower court determining

jurisdiction over the person of Elwin Etheridge. Mr.

Etheridge’s motion for rehearing was denied without

comment.

Elwin Etheridge now petitions this Court for a writ of

certiorari to review the opinion below.

2. How The Federal Question was Presented

The issue of whether the application of the Florida

Long-Arm Statute to the facts of this case violates Elwin

Etheridge’s rights under the Fourteenth Amendment to

the United States Constitution was first raised in the

Petitioner’s motion to dismiss the original complaint for

lack of jurisdiction over the person. The motion contained

the following allegation:

This Court lacks jurisdiction over the person of

Mr. Etheridge because he has insufficient con-

tacts with the State of Florida to justify jurisdic-

tion under the U.S. Constitution and under the

Florida Constitution.

This issue was also raised in Mr. Etheridge’s memoran-

dum of law in support of his motion to dismiss the

amended complaint. The Circuit Court again denied

Elwin Etheridge’s requested relief. The issue of whether

the lower court lacked constitutional jurisdiction over the

person of Elwin Etheridge was also presented to the Fifth

District Court of Appeal in the Petitioner’s Initial and

Reply Briefs. The appellate court affirmed the lower

court’s decision without opinion.

y’

—

REASONS FOR GRANTING THE WRIT

POINT I.

THE RULING OF THE FIFTH DISTRICT

COURT OF APPEAL WRONGFULLY SUB-

JECTS ELWIN ETHERIDGE TO THE JURIS-

DICTION OF THE FLORIDA COURTS.

This is not a complex case. It does not involve big

names, hundreds of plaintiffs or defendants, or vast sums

of money. The effects of a ruling allowing a corporation’s

constitutional minimum contacts to be imputed to its

individual officers and employees will, however, affect

thousands of individuals whose employers are involved

in interstate commerce. Simply stated, this case involves

the rights of an individual corporate employee to be free

from the unwarranted exercise of jurisdiction over him by

the courts of a state in which he has no contacts or

connections. The corporation, Etheridge Petroleum, has

not been made a party to this proceeding due to the fact

that Charles S. Andrews is receiving benefits under the

Florida Workers’ Compensation Act. What the Respon-

dents are attempting to do is circumvent the provisions of

Section 440.11, Florida Statutes (1987). This section pro-

vides that the Workers’ Compensation Act shall be the

exclusive remedy for an injured worker. The employer’s

immunity from suit extends to each employee of the

employer, as well as corporate officers, unless the

employee acts with willful and wanton disregard or with

gross negligence. Streeter v. Sullivan, 509 So.2d 268 (Fla.

1987). The Mississippi Workers’ Compensation Act does

not contain a similar exception from immunity for an

employee who acts with willful and wanton disregard or

with gross negligence.

Arguably, the Respondents have stated a cause of

action under Florida law against Mr. Etheridge. However,

that is not the issue here. Rather, the issue for this Court

to decide is whether the minimum contacts of a corpora-

tion, which are sufficient to satisfy constitutional due

process requirements as to the corporation, may be

imputed to a corporate officer so that he may be subject

to in personam jurisdiction for his acts as a corporate

decision-maker. The Fifth District Court of Appeal was

required to examine such an application of the Florida

Long-Arm Statute in this suit between two non-Florida

residents. The lower court had determined that sufficient

facts existed to warrant jurisdiction over the person of

Elwin Etheridge. The Fifth District Court of Appeal’s

examination produced a per curiam affirmance of the

lower court’s order. This decision effectively holds that a

non-resident corporate officer can be personally subjected

to the long-arm jurisdiction of Florida for merely direct-

ing a corporate employee to perform the corporation’s

work in Florida. The use of the Florida Long-Arm Statute

in this case clearly violates Elwin Etheridge’s rights

under the Fourteenth Amendment to the United States

Constitution.

Over the past few years, this Court has addressed the

rights of a corporation with respect to a state’s attempt to

exercise in personam jurisdiction over the non-resident

corporation. Where minimum contacts are lacking, juris-

diction will not be sustained. The next logical step in this

Court’s rulings on jurisdictional issues is to extend the

principles established in those cases to protect the rights

and interests of the individual corporate decision-makers.

This case presents the Court with such an opportunity.

POINT II.

THE USE OF THE FLORIDA LONG-ARM

STATUTE TO REQUIRE ELWIN ETHERIDGE

TO DEFEND THIS CASE ON THE MERITS

VIOLATES HIS RIGHTS UNDER THE FOUR-

TEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION.

It has long been established that due process requires

that a non-resident defendant have minimum contacts

with the-forum state before personal jurisdiction is

proper. International Shoe Company v. Washington, 326 U.S.

310 (1945). Minimum contacts can be established only if

the defendant has substantial activities in the state, he

purposefully directs his activities to the forum state, or he

personally derives benefit from an activity in the forum

state. Asahi Metal Industry Company v. Superior Court of

California, Solano County, 480 U.S. 102 (1987); Burger King

Corp. v. Rudzewicz, 471 U.S. 462 (1985). Factors to consider

in determining jurisdiction include (1) the burden on the

defendant of appearing in a particular locality; (2) the

forum state’s interest in adjudicating this dispute; (3) the

plaintiff’s interest in obtaining convenient and effective

relief; (4) the judicial system’s interest in obtaining the

most effective resolution of the controversy; and (5) the

public interest in furthering fundamental substantive

social policies. World-Wide Volkswagen v. Woodson, 444

U.S. 286 (1980).

This Court noted in World-Wide Volkswagen, 444 U.S.

at 297, that the “orderly administration of the laws”

prescribed in International Shoe, 326 U.S. at 319, embraces

“a degree of predictability . . . that allows potential defen-

dants to structure their primary conduct with some mini-

mum assurance as to where that conduct will and will not

render them liable to suit.” Thus it is important to deter-

mine whether Elwin Etheridge “engaged in any purpose-

ful activity related to the forum that would make the

exercise of jurisdiction fair, just, or reasonable.” Rush v.

Savchuk, 444 U.S. 320 (1980). A defendant who acts volun-

tarily “has clear notice that [he] is subject to suit [in the

forum], and can act to alleviate the risk of burdensome

litigation by procuring insurance, passing the expected

cost onto customers, or, if the risks are too great, severing

10

[his] connection with the state.” World-Wide Volkswagen,

440 US. at 319.

The question then is not simply whether the defen-

dant should have foreseen that his conduct would have

some impact in the forum. An answer to that question

does not resolve the issue because the defendant may be

unable to control entirely even the foreseeable conse-

quences of his acts= Calder v. Jones, 465 U.S. 783 (1984).

The question instead, is whether the defendant should

reasonably have foreseen that he would be called to

answer for his conduct in the forum, because, through his

own purposeful acts, he linked his interests with the

forum. By those voluntary acts, he has effectively con-

sented to jurisdiction. World-Wide Volkswagen, 440 U.S. at

297.

The constitutional application of long-arm statutes in

cases involving corporations has been addressed in two

recent court opinions. In Burger King Corporation v.

Rudzewicz, 471 U.S. 462 (1985), this Court addressed the

use of the Florida Long-Arm Statute in an action between

Burger King and a franchisee. Burger King, a Florida

corporation, brought a breach of contract action against

non-Florida residents seeking to terminate a franchise

operation. John Rudzewicz and Brian MacShara, Michi-

gan residents, entered into a franchise agreement with

Burger King in order to operate a restaurant in the

Detroit, Michigan area. The contract between Burger King

and the franchisees provided that the franchise relation-

ship was established in Miami and governed by Florida

law. The contract also called for payment of all required

fees and forwarding of all relevant notices to the Miami

headquarters. The Miami headquarters set policy and

1]

worked directly with its franchisees in attempting to

resolve any major problems. 471 U.S. at 465-66. During

the course of the relationship, MacShara attended man-

agement courses in Miami and the franchisees purchased

restaurant equipment from Miami. It was established that

Rudzewicz and MacShara communicated directly with

the Miami headquarters in forming the franchise con-

tracts. They also turned directly to the Miami headquar-

ters in seeking to resolve their disputes. Id. at 466-67.

Difficulties arose and the franchisees eventually fell

behind in their monthly payments. Prolonged, but unsuc-

cessful negotiations by mail and telephone ensued

between Burger King officials in Miami and the fran-

chisees. Burger King headquarters eventually terminated

the franchise and ordered Rudzewicz and MacShara to

vacate the premises. When they refused, Burger King

filed suit in federal district court. 471 U.S. at 468.

Rudzewicz and MacShara entered a special appearance in

which they claimed that because they were Michigan

residents and because Burger King’s claim did not “arise”

within the Southern District of Florida, the Court lacked

jurisdiction over them. 471 U.S. at 469. After a hearing on

the matter, the district court held that under the Florida

Long-Arm Statute, Section 48.193(1)(g) (1984 Supp.), the

franchisees were subject to the personal jurisdiction of

the Court. The action proceeded to trial where a judg-

ment was entered against Rudzewicz and MacShara for

$228,875.00 in contract damages. The franchisees were

also ordered to turn over possession of the restaurant to

Burger King Corporation. 471 U.S. at 469.

Rudzewicz appealed the judgment to the Court of

Appeals for the Eleventh Circuit, which reversed the

judgment on the basis that there was no personal jurisdic-

tion over Rudzewicz. The Court held that the exercise of

jurisdiction under the facts of the case would offend the

traditional notions of fundamental fairness. 471 U.S. at

470. Burger King appealed the Eleventh Circuit judgment

to this Court.

In its opinion, this Court repeated the well-estab-

lished principle of law that a defendant must have pur-

posefully established “minimum contacts” in the forum

state in order to be subject to jurisdiction within that

state, citing International Shoe Company v. Washington, 326

U.S. 310 (1945). Mere foreseeability of causing an injury

in another state is not sufficient for exercising personal

jurisdiction. Instead, the defendant must purposefully

avail himself of the privilege of conducting activities

within the forum state such that he can “reasonably antic-

ipate being haled into court there.” 471 U.S. at 474. Where

a defendant deliberately engages in significant activities

within a state or has created “continuing obligations

between himself and the residents of the forum, it is not

unreasonable to require him to submit to the burdens of

litigation in that forum.” 471 U.S. at 476. However, the

“minimum requirements inherent in the concept of ‘fair

play and substantial justice’ may defeat the reasonable-

ness of jurisdiction even if the defendant has pur-

posefully engaged in forum activities.” Id. at 478-79.

Based on the record before it, this Court concluded

that the exercise of personal jurisdiction over Rudzewicz

in Florida for the alleged breach of the franchise agree-

ment did not offend due process notions. 471 U.S. at 478.

Although Rudzewicz had no physical ties to Florida, this

Court found that the dispute grew out of a contract that

RN <RRE g eIRTTNTI 7

13

had substantial connection with Florida. Id. at 479. This

Court stated:

In light of Rudzewicz’ voluntary acceptance of

the long-term and exacting regulation of his

business from Burger King’s Miami headquar-

ters, the ‘quality and nature’ of his relationship

to the company in Florida can in no sense be

viewed as ‘random,’ ‘fortuitous,’ or ‘attenuated.’

Rudzewicz’ refusal to make the contractually

required payments in Miami, and his continued

use of Burger King’s trademarks and confiden-

tial business information after his termination,

caused foreseeable injuries to the corporation in

Florida. For these reasons it was, at the very

least, presumptively reasonable for Rudzewicz

to be called to account there for such injuries.

Burger King Corporation, 471 U.S. at 480. (citations omit-

ted) This Court concluded that the choice of law provi-

sion in the franchise agreement, combined with the

twenty-year interdependent relationship Rudzewicz

established with Burger King headquarters, reinforced

Rudzewicz’ deliberate affiliation with Florida and the

reasonable foreseeability of litigation in Florida. 471 U.S.

at 482. As a result, this Court held that the exercise of

personal jurisdiction over Rudzewicz pursuant to Section

48.193(1)(g), Florida Statutes (1984 Supp.), did not offend

due process.

The exercise of personal jurisdiction over a non-resi-

dent corporation by the use of a long-arm statute was

also addressed in Asahi Metal Industry Company, Ltd. v.

Superior Court of California, Solano County, 480 U.S. 102

(1987). In Asahi, a product liability suit was brought in a

California court as a result of a motorcycle accident

allegedly caused by a defective tire manufactured by

14

Cheng Shin, a Taiwanese corporation. Cheng Shin in turn

filed a cross-complaint for indemnification against Asahi

Metal Industry Company, a Japanese company which

manufactured tire-valve assemblies. All of Asahi’s sales_

to Cheng Shin occurred in Taiwan. 480 U.S. at 106. The

primary action was eventually settled and dismissed but

the Court denied Asahi’s motion to quash the summons

issued against it. This order was ultimately affirmed by

the California Supreme Court. That Court noted that

Asahi had no offices, property or agents in California and

that it did not solicit business in California or have direct

sales in the state. 480 U.S. at 108. However, the Court

held that Asahi’s intentional placing of the valve assem-

blies into the stream of commerce, together with its

awareness that some of them would eventually reach

California, was sufficient to support state court jurisdic-

tion under the Due Process Clause. 480 U.S. at 108.

In certiorari proceedings, this Court determined that

the question to be answered was whether:

the mere awareness on the part of a foreign

defendant that the components it manufactured,

sold, and delivered outside the United States

would reach the forum state in the stream of

commerce constitutes ‘minimum contacts’

between the defendant and the forum state such

that the exercise of jurisdiction “does not offend

‘traditional notions of fair play and substantial

justice.’ ”

Asahi Metal Industries, 480 U.S. at 105. (citations omitted)

This Court noted that in order to decide whether an

exercise of personal jurisdiction is compatible with due

process it must be determined whether the defendant

“purposefully established ‘minimum contacts’ in the

dy ba aos

a oa ~~ ee a ee eee Oe OLN a eS

15

forum siate.” 480 U.S. at 108-09. A consumer’s unilateral

act of bringing the defendant’s product into the forum

state is not a sufficient constitutional basis for exercising

personal jurisdiction over the defendant. Id. at 110. Sim-

ilarly, something more than the defendant’s awareness of

its product’s entry into the forum state through the

stream of commerce is needed in order for a state to

exercise jurisdiction over the defendant. 480 U.S. at 110.

Turning to the facts of the case before it, this Court

concluded that Asahi Metal did not purposefully avail

itself of the California market. Asahi did not do business

in the State of California. It had no office, no agents,

employees, or property in California. Asahi did not

advertise or otherwise solicit business in California, nor

did it create, control, or employ the distribution system

that brought its product to California. Based on these

facts, this Court held that the “exertion of personal juris-

diction over Asahi by the Superior Court of California

exceeds the limits of Due Process.” Asahi Metal, 480 U.S.

at 113.

This Court also examined whether exercising per-

sonal jurisdiction over Asahi would offend “traditional

notions of fair play and substantial justice.” 480 U.S. at

113. Factors to be considered include the burden on the

defendant, the interest of the forum state, and the plain-

tiff’s interest in obtaining relief. This Court determined

that the burden on Asahi was severe whereas the inter-

ests of the plaintiff and the State of California were slight.

Similarly, Cheng Shin failed to demonstrate that it was

more convenient for it to litigate the indemnification

claim against Asahi in California rather than Taiwan or

Japan. Id. at 114. Because Cheng Shin was not a California

16

resident, “California’s legitimate interests in the dispute

have considerably diminished.” Id. This Court concluded

that the facts of the case did not “establish minimum

contacts such that the exercise of personal jurisdiction is

consistent with fair play and substantial justice.” Asahi

Metal, 480 U.S. at 116.

In this case, the question is whether Elwin Etheridge,

individually, had sufficient minimum contacts with Flor-

ida such that the maintenance of this suit would not

offend the traditional notions of fair play and substantial

justice. Kulko v. Superior Court of California, 436 U.S. 84

(1978). The answer depends on whether the “quality and

nature” of Elwin Etheridge’s activity was such that it was

“reasonable” and “fair” to require him to defend this

action in Florida. Kulko v. Superior Court of California, 436

U.S. at 92.

The facts in this case demonstrate a complete absence

of the circumstances that are a necessary predicate to any

state court jurisdiction. Elwin Etheridge is a resident of

Terry, Mississippi. The Andrews are also residents of

Mississippi. Florida’s interest in affording its resident

plaintiffs convenient and effective relief simply does not

exist in this case. No fundamental social policies are

furthered by keeping this action in the Florida court

system because this suit arose out of a Mississippi

employment relationship. The Mississippi courts, not the

Florida courts, have the strongest interest in resolving

this controversy. Mississippi is also the most convenient

place for obtaining effective resolution of the controversy

because all parties reside in that state.

ee NR A

17

It was Etheridge. Petroleum, a Mississippi corpora-

tion, that had contacts with the State of Florida. The

accident arose out of the Mississippi employment rela-

tionship. As established by the affidavits, all discussions

concerning the Florida job took place in Mississippi.

There is little doubt that the corporation would be subject

to the jurisdiction of the Florida courts. However, the

corporation’s contacts with Florida are insufficient to con-

fer personal jurisdiction over Elwin Etheridge. Given the

non-existent nature of his activities in Florida, it is unrea-

sonable and unfair to expect Elwin Etheridge to defend

this action in Florida. There are no allegations that Elwin

Etheridge ever placed so much as a single telephone call

to the State of Florida. The record shows that Elwin

Etheridge was only an officer of the corporation and that

at no time has he engaged in business in Florida for his

personal advantage. Any product or material used by the

Respondent in Florida was under the control of Etheridge

Petroleum. At best, the only “contact” that Mr. Etheridge

could be said to have with Florida is that he is the

“decision-maker” for the Mississippi corporation to do

business in Florida.

Unlike John Rudzewicz, Elwin Etheridge was not

individually involved in a dispute which grew out of any

contract that had substantial connections with Florida.

There is also no evidence whatsoever that Elwin

Etheridge, unlike John Rudzewicz, deliberately engaged

in significant activities within Florida or created “con-

tinuing obligations between himself and residents” of

Florida. The only evidence presented to the court reveals

that Elwin Etheridge, as an individual, engaged in no

service activities in Florida nor was he personally

18

involved with servicing or manufacturing any product

used in the State of Florida. Additionally, Elwin

Etheridge does not own real property in the State of

Florida nor does he have a business office or bank

account in this State. Like Asahi Metal, Elwin Etheridge

completely lacks minimum contacts with the State and

could not reasonably anticipate being haled into court in

Florida. Elwin Etheridge, as an individual, did not pur-

posefully avail himself of the Florida market. Likewise,

Elwin Etheridge, as an individual, did not conduct busi-

ness in the State of Florida. Allowing the Florida courts to

exercise personal jurisdiction over Elwin Etheridge under

the facts established in this case would be no different

than allowing California to exercise its long-arm jurisdic-

tion over the president of Asahi Metal in his role as

corporate decision-maker. In both situations, the exercise

of personal jurisdiction pursuant to a long-arm statute

would offend due process.

This Court has consistently held that in order to

exercise personal jurisdiction over a non-resident it must

be shown that the requisite minimum contacts with the

forum state are present. International Shoe Company v.

Washington, 326 U.S. 310 (1945). The unilateral acts of the

Respondents cannot, in and of themselves, provide Elwin

Etheridge with the requisite minimum contacts mandated

by this Court. This Court has stated:

The unilateral activity of those who claim some

relationship with a nonresident defendant can-

not satisfy the requirement of contact with the

forum State. The application of that rule will

vary with the quality and nature of the defen-

dant’s activity, but it is essential in each case

that there be some act by which the defendant

purposefully avails himself of the privilege of

19

conducting activities within the forum state,

thus invoking the benefits and protections of its

laws.

Hanson v. Denckla, 357 U.S. 235, 253 (1958). Jurisdiction is

only proper where the contacts proximately result from

the actions by the defendant himself that create a “sub-

stantial connection” with the forum state. Burger King

Corp. v. Rudzewicz, 471 U.S. at 475. Where the defendant

has deliberately engaged in significant activities within a

state or has created “continuing obligations” between

himself and residents of the forum, the defendant will be

considered to have availed himself of the privilege of

conducting business within the forum state. Because his

activities are shielded by the “benefits and protections”

of the forum’s laws, it is not considered unreasonable to

require the defendant to submit to the burdens of litiga-

tion in the forum state. Burger King Corp. v. Rudzewicz, 471

U.S. at 475-76. As this Court reaffirmed in Burger King

and Asahi Metal, “the facts of each case must [always] be

weighed” in determining whether personal jurisdiction

would comport with “fair play and substantial justice.”

Burger King, 471 U.S. at 485-86.

Here, Elwin Etheridge, as an individual, has not pur-

posefully availed himself of the privilege of conducting

activities within the State of Florida. Neither party has

sufficient contacts with the State of Florida to justify the

exercise Of personal jurisdiction over Elwin Etheridge.

Florida courts cannot constitutionally impute the mini-

mum contacts of a corporation which does business in

Florida to a non-resident corporate employee who has no

contacts with Florida. After weighing the facts in this

case, it is clear that the exercise of personal jurisdiction

20

over Elwin Etheridge does not comport with the notions

of fair play and substantial justice. The exertion of per-

sonal jurisdiction over Elwin Etheridge by the circuit

court of Florida exceeds the limits of Due Process. Asahi

Metal, 480 U.S. 102, 113.

ae &

v

CONCLUSION

For these reasons, this petition for writ of certiorari

should be granted.

Nancy A. LAUTEN, ESQUIRE

Counsel of Record

and

Georce A. VAKA, ESQUIRE

Fowter, Wuite, GILLEN, Boccs, VIL-

LAREAL & BANKER, P.A.

Post Office Box 1438

Tampa, Florida 33601

(813) 228-7411

ATTORNEYS FOR PETITIONERS

la

APPENDIX A

IN THE DISTRICT COURT OF APPEAL OF

THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 1989

ELWIN ETHERIDGE, NOT FINAL UNTIL

alain THE TIME EXPIRES

PP , TO FILE REHEAR-

v. ING MOTION, AND,

CHARLES S. ANDREWS, et ux., ica DISPOSED

Appellees,

CASE NO. 88-2419

/

Decision filed July 25, 1989

Non-Final Appeal from the Circuit Court

for Marion County,

Wallace E. Sturgis, Jr., Judge.

Nancy A. Lauten of Fowler, White,

Gillen, Boggs, Villareal & Banker,

P.A., Tampa, for Appellant.

Patrick O. Helm of Brooks & Helm,

P.A., Gainesville, for Appellees.

PER CURIAM.

AFFIRMED.

DAUKSCH and ORFINGER, JJ., and McNULTY, J.P.,

Associate Judge, concur.

2a

APPENDIX B

IN THE CIRCUIT COURT OF THE

FIFTH JUDICIAL CIRCUIT,

IN AND FOR MARION COUNTY, FLORIDA.

CASE NO.: 88-1463-CA-A

CHARLES S. ANDREWS, et ux,

Plaintiff(s)

Vs.

ELWIN ETHERIDGE,

Defendant(s)

ORDER ON MOTION

THIS CAUSE, having come before the court on

Defendant’s Motion to Strike and the Court having

reviewed the memorandum of law submitted by the par-

ties and being otherwise advised in the premises, the

Court does hereby,

ORDER AND ADJUDGE: The Court has jurisdiction

to decide jurisdiction; the Plaintiff having now produced

sufficient affidavits and having alleged sufficient facts to

warrant jurisdiction over the Defendant, it is therefore

ordered that the Defendant, Elwin Etheridge’s Motion to

Strike the Amended Complaint is DENIED; Defendant

shall file responsive pleadings within TWENTY (20) days

of the date of this Order.

DONE AND ORDERED this 10th day of November

1988 in Chambers at Marion County, Florida.

/s/ Wallace E. Sturgis, Jr.,

Wallace E. oe Jr.,

CIRCUIT JUDG

3a

| CERTIFICATE OF SERVICE

| I hereby certify that a true and accurate copy of the

\ foregoing was furnished by U.S. Mail this 10th day of

November 1988 to the following counsel:

Chris W. Altenbernd, Esq.,

P.O. Box 1438

Tampa, Fl. 33601

Patrick O. Helm, Esq.,

P.O. Box 921

Gainesville, Fl. 32602

| /s/ Stephen D. Spivey

Stephen D. Spivey

Staff Attorney

4a

APPENDIX C

IN THE DISTRICT OF APPEAL OF THE

STATE OF FLORIDA FIFTH DISTRICT

ELWIN ETHERIDGE,

Appellant,

v. Case No. 88-2419

CHARLES S. ANDREWS, et

uX.,

Appellee.

DATE: September 6, 1989

BY ORDER OF THE COURT:

ORDERED that Appellant’s MOTION FOR

REHEARING AND MOTION FOR REHEARING EN

BANC, filed August 9, 1989, is denied.

I hereby certify that the foregoing is (a true copy of) the

origninal court order.

/s/ Frank J. Habershaw

FRANK J. HABERSHAW, CLERK

BY:

Deputy Clerk

(COURT SEAL)

cc: Nancy A. Lauten, Esq.

Patrick O. Helm, Esq.

<_

5a

APPENDIX D

IN THE CIRCUIT COURT, FIFTH

JUDICIAL CIRCUIT, IN AND FOR

MARION COUNTY, FLORIDA.

CHARLES S. ANDREWS and CASE NO.::

SHELBY ANDREWS, his wife, 88-1463-CA-A

Plaintiffs,

vs.

ELWIN ETHERIDGE,

Defendant.

/

COMPLAINT

COMES NOW, the Plaintiffs, CHARLES S. and

SHELBY ANDREWS, by and through their undersigned

attorney and sues ELWIN ETHERIDGE and states:

COUNT |

1. This is an action for damages in excess of

$5,000.00.

2. At all times material hereto, the Plaintiff,

CHARLES S. ANDREWS, was over 21 years of age.

3. At all times material hereto, the Defendant,

ELWIN ETHERIDGE, was the owner, corporate officer

and employee of Etheridge Petroleum and Electric, Inc.

d/b/a Armor Shield of Mississippi. Etheridge Petroleum

and Electric, Inc. is incorporated in the State of Missis-

sippi and ELWIN ETHERIDGE is a resident of the State of

Mississippi.

6a

4. ELWIN ETHERIDGE is subject to jurisdiction of

the courts of the State of Florida pursuant to Chapter

48.193 Florida Statutes as a result of committing the fol-

lowing acts:

A. Operating, conducting, engaging in or car-

trying on a business venture in the State of Florida.

B. Causing injury to persons or property within

the State of Florida arising out of an act or omission by

the Defendant outside the State of Florida.

5. Etheridge Petroleum and Electric, Inc. is engaged

in the business of installing, repairing and cleaning gas-

oline station pumping equipment and underground fuel

storage tanks.

6. On or about April 30, 1986, the Plaintiff,

CHARLES S. ANDREWS, was-an employee of Etheridge

Petroleum and Electric, Inc. as the foreman for a crew to

repair and clean underground fuel storage tanks. While

sandblasting the interior of an underground fuel storage

tank located at the Charter Oil Gasoline Station in Silver

Springs, Marion County, Florida, an explosion occurred

inside the tank, resulting in serious and catastrophic inju-

ries to the Plaintiff, CHARLES S. ANDREWS.

7. At the time of the accident, the Plaintiff was

using air compressors, sand blasters and electrical equip-

ment owned and maintained by Etheridge Petroleum and

Electric, Inc.

8. As corporate officer and employee of Etheridge

Petroleum and Electric, Inc., ELWIN ETHERIDGE was

directly responsible for the equipment used by the Plain-

tiff and his crew. In his capacity as corporate officer and

7a

employee, ELWIN ETHERIDGE was personally knowl-

edgeable as to the type of equipment necessary for the

proper and safe conduct of the Plaintiff’s job of cleaning

out underground fuel tanks. He was also personally

knowledgeable of the maintenance status of the equip-

ment used by the Plaintiff at the time of the accident.

9. The Plaintiff, CHARLES S. ANDREWS, was

injured in the accident of April 30, 1986, as a direct result

of the negligence of ELWIN ETHERIDGE in that:

A. The Defendant, ELWIN ETHERIDGE, failed

to provide the Plaintiff, CHARLES S. ANDREWS, with an

air compressor of sufficient size and power to operate all

of the equipment necessary for the successful completion

of the job and operate the proper air mover to insure

adequate ventilation and the removal of flammable

vapors from the fuel tank. Because the power from the

compressor was insufficient, the Plaintiff was forced to

use an inadequate ventilation system which was below

fire code standards for this type of work.

B. The Defendant, ELWIN ETHERIDGE, failed

to provide the Plaintiff, CHARLES S. ANDREWS, with

adequate and properly wired lighting equipment to use

inside the fuel tank while it was being cleaned. Specifi-

cally, the lamp attached to the sandblasting hose used to

clean the tank was improperly wired and maintained.

C. Asa result of the inadequate ventilation and

removal of flammable vapors as well as the improperly

wired and maintained lamp and electrical wiring, an

explosion occurred in the fuel tank being cleaned by the

Plaintiff, resulting in serious and catastrophic injuries to

the Plaintiff.

8a

10. The Defendant, ELWIN ETHERIDGE, knew of

the defects outlined in paragraph 9 above and was fully

aware that the equipment provided was substandard and

improperly maintained for their proper and safe use by

the Plaintiff as intended. Despite this knowledge, and,

further, despite the fact that the Defendant has been

asked by the Plaintiff CHARLES S$. ANDREWS, as well as

other employees, to correct these deficiencies, the Defen-

dant continued to provide the Plaintiff with the substan-

dard equipment.

11. Asa result of the failure outlined in paragraph

10, the Defendant, ELWIN ETHERIDGE failed to provide

the Plaintiff, CHARLES S. ANDREWS, with a reasonably

safe and secure place to undertake his work for the

defendant.

12. Asa result of his failures outlined above, the

Defendant, ELWIN ETHERIDGE acted with gross negli-

gence and was guilty of wilful and wanton misconduct

resulting in a foreseeable injury to the Plaintiff,

CHARLES S. ANDREWS.

13. As a direct and proximate result of the Defen-

dant’s gross negligence and wilful and wanton miscon-

duct, the Plaintiff, CHARLES S. ANDREWS, was injured

in and about his body and extremities, suffered perma-

nent disability, permanent disfigurement, mental

anguish, pain and suffering, loss of capacity for the

enjoyment of a normal life, aggravated a preexisting con-

dition, or activated a latent condition, lost wages, suf-

fered an impairment of his earning capacity, and incurred

medical and hospital expenses in the treatment of said

9a

injuries. Said injuries are permanent and continuing in

nature.

WHEREFORE, the Plaintiff, CHARLES S. ANDREWS,

demands damages for compensation in an amount in

excess of $5,000.00, from the Defendant, ELWIN

ETHERIDGE, exclusive of costs of this action and post-

judgment interest, and further demands trial by jury on

all issues.

COUNT II

14. The Plaintiff, SHELBY ANDREWS, realleges

paragraphs 1 through 13 and further alleges:

15. That as a further direct and proximate result of

the aforesaid gross negligence and wilful and wanton

misconduct by the Defendant, ELWIN ETHERIDGE, and

as a result of the injuries sustained by her husband,

CHARLES S. ANDREWS, SHELBY ANDREWS will be

deprived of her husband’s consortium, services, care and

the comfort of his society.

WHEREFORE, the Plaintiff, SHELBY ANDREWS,

demands damages for compensation, in an amount in

excess of $5,000.00, from the Defendant, ELWIN

ETHERIDGE, exclusive of costs of this action and post-

judgment interest and further demands a trial by jury on

all issues.

/s/ Patrick O. Helm

PATRICK O. HELM,

ESQUIRE

ATTORNEY FOR

PLAINTIFFS

BROOKS & HELM, P.A.

10a

P.O. Box 2921

Gainesville, FL 32602

(904) 376-3028

lla

APPENDIX E

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL

CIRCUIT OF THE STATE OF FLORIDA,

IN AND FOR MARION COUNTY, FLORIDA.

CIVIL ACTION.

CHARLES S. ANDREWS and

SHELBY ANDREWS, his wife,

Plaintiffs, CASE NO.

vs. 88-1463-CA-A

ELWIN ETHERIDGE, FLORIDA BAR

NO. 197394

Defendant.

MOTION TO DISMISS FOR LACK OF

JURISDICTION OVER THE PERSON

The Defendant, Elwin Etheridge, by and through his

undersigned attorneys appears specially herein and

moves this Court for the entry of an order dismissing the

Complaint of the Plaintiffs for lack of jurisdiction over his

person. In support of this Motion, this Defendant shows

to this Court that:

1. The Plaintiffs have sued Mr. Etheridge as a co-

employee under the Florida legal theories announced in

Streeter v. Sullivan, 509 So.2d 268 (Fla. 1987).

2. The Plaintiffs have affirmatively alleged that

Elwin Etheridge is not a resident of Florida but is instead

a resident of the State of Mississippi.

3. The Plaintiffs have not alleged that Mr. Etheridge

was at the scene of the accident or even in the State of

Florida at the time of the accident.

12a

4. Mr. Etheridge is not a Florida resident or citizen,

does not own property in Florida, is not engaging in

business in the State of Florida in his individual capacity

and is not producing materials or things outside the State

which are consumed within the State in the ordinary

course of commerce.

5. This Court lacks jurisdiction over the person of

Mr. Etheridge because jurisdiction is not authorized

against him pursuant to Chapter 48, Florida Statutes.

6. This Court lacks jurisdiction over the person of

Mr. Etheridge because he has insufficient contacts with

the State of Florida to justify jurisdiction under the U.S.

Constitution and under the Florida Constitution.

7. Affidavits supporting this Motion to Dismiss will

be filed with the Court as soon as Mr. Etheridge has

executed them in Mississippi and returned them to the

undersigned attorney.

8. This Defendant reserves its right to attack the

Complaint on substantive grounds at a later date if this

Court determines jurisdiction over its person.

FOWLER, WHITE, GILLEN,

BOGGS, VILLAREAL &

BANKER, P.A.

Post Office Box 1438

Tampa, Florida 33601

(813) 228-7411

ATTORNEYS FOR DEFENDANT

By:

’ CHRIS W. ALTENBERND,

ESQUIRE

13a

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of

the foregoing has been furnished by U.S. Mail this 8 day

of June, 1988 to Patrick O. Helm, Esquire, Post Office Box

921, Gainesville, Fiorida 32602.

ATTORNEY

14a

APPENDIX F

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL

CIRCUIT OF THE STATE OF FLORIDA,

IN AND FOR MARION COUNTY, FLORIDA.

CIVIL ACTION.

CHARLES S. ANDREWS and

SHELBY ANDREWS, his wife,

Plaintiffs,

CASE NO.

— 88-1463-CA-A

ELWIN ETHERIDGE, FLORIDA BAR

Defendant. NO. 197394

AFFIDAVIT

STATE OF MISSISSIPPI

COUNTY OF HINDS

BEFORE ME the undersigned authority this day per-

sonally appeared JAMES ELWIN ETHERIDGE, and being

first duly sworn deposes and says:

1. That he is over the age of 18 and otherwise com-

petent to testify and has personal knowledge of the fol-

lowing facts.

2. That his residence address is Route 1, Box 105],

George Road, Terry, Mississippi 39170.

3. That he is a resident and citizen of the State of

Mississippi and has been such a resident and citizen at all

times for a time period beginning before April 1, 1986

and continuing through the date of this Affidavit.

15a

4. That, on April 30, 1986, he was not inside the

State of Florida and specifically was not at the site of the

accident alleged in the Complaint filed by Charles Steve)

Andrews.

5. That on the date of the alleged accident, he was

in Jackson, Mississippi.

6. That he is a corporate officer and employee of

Etheridge Petroleum and Electric, Inc. That corporation is

a Mississippi corporation with its principle business

office at 138 Old Highway - 49 South, Jackson, Missis-

sippi 39208.

7. He owns no real property located in the State of

Florida.

8. He was not, in his individual capacity, engaged in

solicitation or service activities within the State of Florida

at the time of the alleged accident or at any time up

through the date of this affidavit.

9. He is not, as an individual, involved with prod-

ucts, materials, or things processed, serviced, or manufac-

tured by himself which were used or consumed inside the

State of Florida at the time of the accident or at any time

up through the date of this affidavit.

10. That his corporation, Etheridge Petroleum and

Electric, Inc. did send a crew of three men into the State

of Florida in April, 1986 to perform work which the

Corporation was obligated to perform under agreements

with Charter Marketing.

11. That the crew which was sent to Florida

included the Plaintiff as supervisor or foreman and two

other individuals.

1 6a

12. That he does not have a business office or a

bank account in the State of Florida.

13. That although his name is James Elwin

Etheridge, the summons in this action naming “Elwin

Etheridge” was served upon him and he would appear to

be the person that the Plaintiff intended to sue in the

allegations in the Complaint.

FURTHER AFFIANT SAYETH NOT.

/s/ James Elwin Etheridge

JAMES ELWIN ETHERDIGE

Sworn to and subscribed

before me this 6 day

of May, 1988.

/s/ Nancy G. Luckey

NOTARY PUBLIC - State of Mississippi

My Commission Expires:

My Commission Expires April 28, 1991

17a

APPENDIX G

IN THE CIRCUIT COURT, FIFTH JUDICIAL CIRCUIT,

IN AND FOR MARION COUNTY, FLORIDA.

CASE NO.

CHARLES S. ANDREWS and 88-1463-CA-A

SHELBY ANDREWS, his wife,

Plaintiffs,

vs.

ELWIN ETHERIDGE,

Defendant.

i /

AFFIDAVIT

STATE OF MISSISSIPPI

COUNTY OF RANKIN -

BEFORE ME the undersigned authority this day per-

sonally appeared CHARLES S. ANDREWS, and being

first duly sworn deposes and says:

1. That he is over the age of 18 and otherwise com-

petent to testify and has personal knowledge of the fol-

lowing facts.

2. That his residence address is 103 Hunter Road,

Florence, Mississippi 39073, and that he is and has been a

resident of the State of Mississippi since before April 30,

1986.

3. That prior to and on Aprii 30, 1986, he was an

employee of Etheridge Petroleum and Electric Inc. in the

capacity of supervisor or foreman.

18a

4. That on April 30, 1986, he was the supervisor or

foremen of a crew consisting of himself and two other

employees that were sent by Etheridge Petroleum to the

State of Florida to perform work for the corporation

under a contract with Charter Marketing.

5. That prior to leaving with his crew for the State

of Florida, he personally discussed the faulty electrical

equipment to be used at the job in Florida, with James E.

Etheridge. Specifically, he discussed with Mr. Etheridge

the fact that the electrical equipment had been shorting

out and the wiring was done improperly. Mr. Etheridge

was aware of this problem but informed him that he was

to use it at the job site in Florida and that it would be

repaired when they returned from the job.

6. The electrical equipment mentioned in paragraph

5 above belonged to Etheridge Petroleum and Electric

Inc. and the reason the defects were not corrected was

due to the direct actions of James E. Etheridge by refusing

to allow maintenance to be performed on the equipment

until it returned from Florida.

7. That he had numerous conversations prior to

April 30, 1986 with James E. Etheridge about the fact that

the air compressor provided for the use of his crew was

too small and underpowered to operate cleaning and

safety equipment necessary for the job. Said air com-

pressor was owned and maintained by Etheridge Petro-

leum and Electronic Inc.

8. That at all times he dealt directly with James E.

Etheridge as his personal supervisor and as the one per-

sonally responsible for the lack of maintenance on and

the use of improper equipment used on the job site,

19a

which the Affiant believes and has alleged in his com-

plaint were the direct and proximate cause of the accident

and his injuries.

FURTHER AFFIANT SAYETH NOT.

/s/ Charles S. Andrews

CHARLES S. ANDREWS

Sworn to and subscribed

before me this 15th day

on August, 1988.

/s/ illegible

NOTARY PUBLIC - State of Mississippi

My Commission expires:

My Commission Expires July 11, 1992

20a

APPENDIX H

IN THE CIRCUIT COURT OF THE

FIFTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR

MARION COUNTY, FLORIDA. CIVIL ACTION

CHARLES S. ANDREWS and

SHELBY ANDREWS, his wife,

Plaintiffs,

VS.

CASE NO. 88-1463-CA-A

ELWIN ETHERIDGE,

FLORIDA BAR NO. 197394

Defendant.

ORDER GRANTING MOTION TO DISMISS

FOR LACK OF JURISDICTION OVER THE PERSON

THIS CAUSE came on for consideration upon the

Motion to Dismiss for Lack of Jurisdiction Over the Per-

son of Elwin Etheridge. This Court having considered the

Motion, the Affidavit in Support of the Motion, and the

relevant case law, it is

ORDERED AND ADJUDGED that the Plaintiffs’

Complaint be and hereby is dismissed without prejudice

for lack of jurisdiction over the person of the Defendant,

Elwin Etheridge.

ORDERED this 13 day of Sept., 1988 in Ocala, Marion

County, Florida.

21a

/s/ Wallace E. Sturgis, Jr.

HONORABLE WALLACE E.

STURGIS, JR.

Circuit Court Judge

Copies furnished to:

Patrick O. Helm, Esquire

Chris W. Altenbernd, Esquire

22a °

APPENDIX I

IN THE CIRCUIT COURT, FIFTH

JUDICIAL CIRCUIT, IN AND FOR

MARION COUNTY, FLORIDA.

CHARLES S. ANDREWS and

SHELBY ANDREWS, his wife,

CASE NO.

Plaintiffs,

VS.

ELWIN ETHERIDGE,

Defendant.

AMENDED COMPLAINT

COMES NOW, the Plaintiffs, CHARLES S.

ANDREWS AND SHELBY ANDREWS, by and through

their undersigned attorney and sues ELWIN ETHERIDGE

and states:

COUNT I

1. This is an action for damages in excess of

$5,000.00.

2. At all times material hereto, the Plaintiff,

CHARLES S. ANDREWS, was over 21 years of age.

3. At all times material hereto, the Defendant,

ELWIN ETHERIDGE, was the owner, corporate officer

and employee of Etheridge Petroleum and Electric, Inc.

d/b/a Armor Shield of Mississippi. Etheridge Petroleum

and Electric, Inc. is incorporated in the State of Missis-

sippi and ELWIN ETHERIDGE is a resident of the State of

Mississippi.

23a

4. ELWIN ETHERIDGE is subject to jurisdiction of

the courts of the State of Florida pursuant to Chapter

48.193 Florida Statutes as a result of committing the fol-

lowing acts:

A. Operating, conducting, engaging in or car-

rying on a business venture in the State of Florida.

B. Causing injury to persons or property within

the State of Florida arising out of an act or omission by

the Defendant outside the State of Florida.

5. ELWIN ETHERIDGE is further subject to the

jurisdiction of the Courts of the State of Florida pursuant

to Chapter 440.11 (1) Florida Statutes and Streeter v. Sul-

livan, 509 So 2d 268 (Fla 1987). The approximate language

in the statute places liability on a fellow employee of the

Plaintiff where such fellow employee “acts, with respect

to a fellow employee, with willful and wanton disregard

or unprovoked physical aggression or with gross negli-

gence when such acts result in injury or death... ”. The

decision in Streeter v. Sullivan holds that owners and

corporate officers are employees for the purposes of this

statute.

6. Etheridge Petroleum and Electric, Inc. is engaged

in the business of installing, repairing and cleaning gas-

oline station pumping equipment and underground fuel

storage tanks.

7. On or about April 30, 1986, the Plaintiff

CHARLES S. ANDREWS, was an employee of Etheridge

Petroleum and Electric, Inc. as the foreman for a crew to

repair and clean underground fuel storage tanks. While

sandblasting the interior of an underground fuel storage

24a

tank located at the Charter Oil Gasoline Station in Silver

Springs, Marion County, Florida, an explosion occurred

inside the tank, resulting in serious and catastrophic inju-

ries to the Plaintiff, CHARLES S. ANDREWS.

8. At the time of the accident, the Plaintiff was

using air compressors, sandblasters and electrical equip-

ment owned and maintained by Etheridge Petroleum and

Electric, Inc.

. 9. As owner, corporate officer and employee of

Etheridge Petroleum and Electric, Inc., ELWIN

ETHERIDGE was directly responsible for the equipment

used the [sic] Plaintiff and his crew. In his capacity as

Owner, corporate officer and employee, ELWIN

ETHERIDGE was personally knowledgeable as to the

type of equipment necessary for the proper and safe

conduct of the Plaintiff’s job of cleaning out underground

fuel tanks. He was also personally knowledgeable of the

maintenance status of the equipment used the [sic] Plain-

tiff at the time of the accident.

10. The Plaintiff, CHARLES S. ANDREWS, was

injured in the accident of April 30, 1986, as a direct result

of the negligence of ELWIN ETHERIDGE in that:

A. The Defendant, ELWIN ETHERIDGE, failed

to provide the Plaintiff, CHARLES S. ANDREWS, with an

air compressor of sufficient size and power to operate all

of the equipment necessary for the successful completion

of the job and operate the proper air mover to insure

adequate ventilation and the removal of flammable

vapors from the fuel tank. Because the power from the

compressor was insufficient, the Plaintiff was forced to

25a

use an inadequate ventilation system which was below

fire code standards for this type of work.

B. The Defendant, ELWIN ETHERIDGE, failed

to provide the Plaintiff, CHARLES S. ANDREWS, with

adequate and properly wired lighting equipment to use

inside the fuel tank while it was being cleaned. Specifi-

cally, the lamp attached to the sandblasting hose used to

clean the tank was improperly wired and maintained.

C. Asa result of the inadequate ventilation and

removal of flammable vapors as well as the improperly

wired and maintained lamp and electrical wiring, an

explosion occurred in the fuel tank being cleaned by the

Plaintiff, resulting in serious and catastrophic injuries to

the Plaintiff.

11. The Defendant, ELWIN ETHERIDGE, knew of

the defects outlined in paragraph 9 above and was fully

aware that the equipment provided was substandard and

improperly maintained for their proper and safe use by

the Plaintiff as intended. Despite this knowledgeable,

and, further, despite the fact that the Defendant has been

asked by the Plaintiff CHARLES S. ANDREWS, as well as

other employees, to correct these deficiencies, the Defen-

dant continued to provide the Plaintiff with the substan-

dard equipment.

12. Just prior to the accident on April 30, 1986,

employees of Etheridge Petroleum and Electric, Inc. were

attempting to make repairs on the electrical system as a

result of frequent and reoccurring short circuiting in the

system. Despite his personal knowledge of the short cir-

cuiting problem, the Defendant, ELWIN ETHERIDGE,

ordered his employees to stop the repair work and not to

26a

complete it until after the equipment returned from the

job in Florida where the accident occurred.

13. Asa result of the failures outlined in paragraphs

10, 11 and 12, the Defendant, ELWIN ETHERIDGE, failed

to provide the Plaintiff, CHARLES S. ANDREWS, with a

reasonably safe and secure place to undertake his work

for the Defendant.

14. As a result of his failures outlined above, the

Defendant, ELWIN ETHERIDGE, acted with gross negli-

gence and was guilty of willful and wanton misconduct

resulting in a foreseeable injury to the Plaintiff,

CHARLES S. ANDREWS.

15. As a direct and proximate result of the Defen-

dant’s gross negligence and willful and wanton miscon-

duct, the Plaintiff, CHARLES S$. ANDREWS, was injured

in and about his body and extremities, suffered perma-

nent disability, permanent disfigurement, mental

anguish, pain and suffering, loss of capacity for the

enjoyment of a normal life, aggravated a pre-existing

condition, or activated a latent condition, lost wages,

suffered an impairment of his earning capacity, and

incurred medical and hospital expenses in the treatment

of said injuries. Said injuries are permanent and continu-

ing in nature.

WHEREFORE, the Plaintiff, CHARLES S$. ANDREWS,

demands damages for compensation in an amount in

excess of $5,000.00, from the Defendant, ELWIN

ETHERIDGE, exclusive of costs of this action and post-

judgment interest, and further demands trial by jury on

all issues.

27a

COUNT II

16. The Plaintiff, SHELBY ANDREWS, realleges

paragraphs 1 through 13 and further alleges:

17. That as a further direct and proximate result of

the aforesaid gross negligence and willful and wanton

misconduct by the Defendant, ELWIN ETHERIDGE, and

as a result of the injuries sustained by her husband,

CHARLES S. ANDREWS, SHELBY ANDREWS wiil be

deprived of her husband’s consortium, services, care and

the comfort of his society.

WHEREFORE, the Plaintiff, SHELBY ANDREWS,

demands damages for compensation, in an amount in

excess of $5,000.00, from the Defendant, ELWIN

ETHERIDGE, exclusive of costs of this action and post-

judgment interest and further demands a trial by jury on

all issues.

/s/ Patrick O. Helm

PATRICK O. HELM, ESQUIRE

Brooks and Helm, P.A.

P.O. Box 2921

Gainesville, FL 32602

(904) 376-3028

Attorneys for Plaintiffs

28a

APPENDIX J

IN THE CIRCUIT COURT, FIFTH JUDICIAL CIRCUIT

IN AND FOR MARION COUNTY, STATE OF FLORIDA

CIVIL DIVISION

CHARLES S. ANDREWS and

SHELBY ANDREWS, his wife,

Plaintiffs,

Case No.: 88-1463-CA-A

VS.

ELWIN ETHERIDGE,

Defendant.

SPECIAL APPEARANCE AND MOTION

TO STRIKE “AMENDED COMPLAINT”

The Defendant, ELWIN ETHERIDGE, by and through

his undersigned attorneys, appears specially herein and

moves this Court for the entry of an order striking the

Plaintiffs’ Amended Complaint on grounds that this

Court has previously ruled that it lacks jurisdiction over

the person of ELWIN ETHERIDGE and there no longer is

a proceeding in Florida in which Mr. Andrews and his

wife can pursue this matter. In support of this Motion, the

Defendant will show to this Court that:

1. The Plaintiffs filed an action herein against Mr.

Etheridge in April, 1988. Mr. Etheridge appeared spe-

cially and moved to dismiss this Complaint for lack of

jurisdiction over his person. Affidavits were filed in sup-

port of that Motion.

2. On September 13, 1988, this Court entered an

order dismissing the action for lack of jurisdiction over

the person. Since a dismissal for lack of jurisdiction over

29a

the person cannot rule upon issues other than jurisdic-

tion, the order was a dismissal without prejudice to bring

the action in another court possessing jurisdiction.

3. The Plaintiffs did not appeal the Order of

Dismissal.

4. The Order of Dismissal did not grant leave to

amend and was a final order on the only issue before this

Court, i.e. the issue of jurisdiction. Although the Order

which determines this Court has no jurisdiction over Mr.

Etheridge is now clearly the law of the case or res judi-

cata between the Plaintiffs and Mr. Etheridge, they

appear to have filed an Amended Complaint without

leave of this Court in a forum which has already estab-

lished that it lacks jurisdiction over Mr. Etheridge.

5. Accordingly, the Plaintiffs’ Amended Complaint

should be stricken because it has been filed without a

pending proceeding in a court without jurisdiction.

RESPECTFULLY SUBMITTED,

FOWLER, WHITE, GILLEN, BOGGS,

VILLAREAL & BANKER, P.A.

P. O. BOX 1438

TAMPA, FLORIDA 33601

813/228-7411

BY Chris W. Altenbernd

CHRIS W. ALTENBERND, ESQ.

MEMORANDUM OF LAW IN SUPPORT OF MOTION

Even a Court which has no jurisdiction over the

person of a Defendant does have the power and jurisdic-

tion to determine the issue of jurisdiction. Allbright v.

Hanft, 333 So.2d 112 (Fla. 2d DCA 1976). When parties

30a

—

appear specially within a proceeding to challenge juris-

diction, the jurisdictional decision becomes binding upon

the parties. Allbright v. Hanft, 333 So.2d 112 (Fla. 2d DCA

1976).

In this case, the Plaintiffs did not appeal the Order

dismissing the action for lack of jurisdiction over the

person of the Defendant. Instead, the Plaintiffs have sim-

ply filed an unauthorized “Amended Complaint” in a

Court which no longer has jurisdiction over anything.

FOWLER, WHITE, GILLEN, BOGGS,

VILLAREAL & BANKER, P. A.

____P. O. BOX 1438

TAMPA, FLORIDA 33601

813/228-7411

By Chris W. Altenbernd

CHRIS W. ALTENBERND, ESQ.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of

the foregoing has been furnished by U. S. Mail this 24 day

of October, 1988, to PATRICK O. HELM, ESQ., P.O. BOX

921, GAINESVILLE, FL. 32602.

/s/ Chris W. Altenbernd

ATTORNEY