Petition for Writ of Certiorari — Hood v. Hood

Oftice-Suprome Court, US

| = } 4 fe | <ccp 7 1964

No. 446 | :

| JOHN F. DAVIS, CLERK

7 | | Inthe Pisa.

- Supreme Court of the United States

| OCTOBER TERM, 1964

MOONEY AIRCRAFT, INC.,

“ - Petitioner,

V.

DEL RAY BEACH AVIATION CORPORATION and :

; _ BERT BOLDT, ‘ So

| Respondents.

PETITION FOR WRIT OF CERTIORARI

*

To the United States Court of Appeals for the Fifth Circuit

“HAL RACHAL

Box 872

Midland, Tefas

)

Tounsel of Hecor

for petitioner.

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INDEX .

; ; Page

Report of the Opinion of the Court Below wh y

Grounds on Which Jurisdiction is Invoked r

Question Presented y-

Constitutional Provision “Involved 2

Statement _ 3-10

‘Reason for Granting the Writ” E ‘31-12

i. The decision of the Court of Appeals 1s not in

accord with the applicable decisions of this

Hororable Court for the zeason that ‘‘minimal

contact’’ was non-existent. “

. i3-

Conclusion

Appendix A-Appeal from the United States District

Court for the Western District of Texas, 14-32

Appendix B—Judgment , , 35

Appendix. C—Order Denying Rehearing 34

Append:x )—Agreement between Mooney Aircraft. Inc.

and Mooney Sales Company 35

ed

oe IL

- CITATIONS

tis CASES

* > : ‘ “ Page ve

Hanson v. Denckla, (19581, 357 2'.S. 235, 78 S. +: :

1298. 2. L. Ed: 1283. ° Ps ni 7 12

International Shoe Company v. State of Washington,

326 U * 310, 66 S. BI cock cons ses cm cacar tee se seongpe- dl

, CONSTITUTIONAL PROVISIONS |

Fourteenth Amendment to the Constitution pees

}

o ;

| ' ‘In the :

Supreme Court of the United States:

OCTOBER TERM, 1964

MOONEY AIRCRAFT, INC..

° ee v. i

DEL RAY BEAC H AVIATION CORPORATION and ;

BER’ . BOLDT. r

wonodornt of

; 30% ae

.

PETITION FOR WRIT. OF CERTIORARI

3 |

To the United States Court of Appeals for the Fifth Circuit

. \ Y ae :

.

“ dl -

\ . . ry

“,

To the Heavesble the ‘thier Justice of, Ahé United Staies and re

Associate Justices, of the Supreme Court of the United States

fa Petitioner, Sica Aireraft. Inc.. prays het a writ of

certiorari Lote to review the judgment. of the United States

Court ‘of Appeals for the. Fifth Circuit, entered in the above

entitled case on May-6. 1964 (Petition for Rehearing: in the

said cause ‘having. been denied on June 5, 1964).

sé ff

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1.

“REPORT OF THE OPINION OF THE COURT BELOW

. The opinion of the United States Court of Appeals for the

Fifth Circuit, pritited . iv ‘Appendix A hereto, infra, pg. 14-32,

is reported in 332 Federal 2d 135.

ink Il.

GROUNDS ON WHICH JURISDICTION IS INVOKED

The judgment of the United States Court of Appeals for

the Fifth Circuit was entered on May 6, 1964. (Appendix B, -

infra,. page 33 ). Rehearing was denied on June 5, 1964. .

. (Appendix C, infra, page $4). The jurisdiction of this Court

is invoked under 28. U.S. C., Section (1254 (1).

TH.

| QUESTION PRESENTED © *

|. Whether the Florida Court had jurisdiction to render

judgment against ‘Petitioner under the Due Process Clause ~

of the Constitution of the United States.

®

° AV. i ec -. :

CONSTITUTIONAL PROVISION INVOL VED

The Constitutional provision invoived in this case 1s the”

Fourteenth Amendment to the Constitution of the U nited

States reading, in part, as follows:

o .

*“*No State shall make or enforce any law meen shall

abridge the privileges or immunities ‘of citizens of the’ oe

United States. nor shall any State deprive any person

of life, liberty, or property without due-process of law.

nor deny-to any person within its jurisdiction the equal

protection of the laws.””

STATEMENT

This cause originated with-a complaint fjled in the’ Cir-

cuit Court of the Eleventh Judicial Circuit in Dade ‘County,

ee Florida. Respondents sought damages against the Petitioner

for ‘the’ alleged malfunction of certain parts of an ‘aircraft,

engine which caused the aircraft to crash, thereby resulting

in damages to the Respondents. Allegations further showed

-. that the aircrafg was purchased from Metropolitan Aircraft’

Corporation ‘shortly before’ the wreck, and allegations of neg-

ligence arid implied, warranty ‘were made agains! both Metro

politan Aircraft Corporation and Petitioner.

Special appearances were made by Richard H. Caen, an

: attomey, on behalf of Petitioner for the purpose of quashing

the citation. Upon hearing,. the Florida Court denied said

motion and. allowed Petitioner twenty (20) days in which to

file its answer. Appearance was also entered by Richard H.

Olsen on behalf ‘of Metropolitan. Petitioner failed to file,

pleedings and judgment was entered against Petitioner, and

a non-suit was taken as to Metropolitan Aircraft Corporation.

Respondents then filed the present suit, seeking full faith

and credit. of the- Florida judgment, contending:

(1) that due to the special appearances nie by Richard

H. Olsen on behalf of Petitioner for the purpose of quashing

the citation, which motion was denied by the court, this rul-

ing was res. judicata as to a eens collateral attack,

and i

(2)° that irrespective of the foregoing issue, Petitioner

was -doing business within - State of. Florida within the

‘

contemplation of the Florida Statutes and was amenable to :

service of process.

Petitioner contended:

(1) that Richard H. Olsen was not ‘euthoriaed to appeer

© on behalf of Petitioner, and Cee eae

(2) that Petitioner was not deine ‘business within the

7. «

State of Florida and, therefore, was not edbject to os court’ a.

- jurisdiction.

On September 23, 1958. Petitioner entered into what was

styled ‘*Distribution and Sales Agreement" with Metropolitan ; ii

Aircraft Corporation. (R. 136-140, *184). This contract was

executed at Kerrville, Texas. (R. 184, 185).

There was ‘also 4 tvrvice agreement which was subsidiary

_ to the ‘Distribution and Sales Agreement’’. (R. 140, 185, ©

186, 209, 213).

The trial court in its memorandum opinion “AR. 115-170)

made the following eleven pertinent —. of -fact:

1. In May, 1959. in Miami, the Plaintiff, Delray Beach Av-.

jation Corporation. purchased from the Metropolitan Air-

craft Corporation an airplane manufactured by Mooney :

Aircraft. (R. 116- 117).

“2. On June 29, 1959 sgyhile - the airplane was being flown

by the Plaintiff, Bert Boldt, “it crashed. (R. 117)-

3 On March 17, 1960, the Plaintiffs brought an action in

the Eleventh ‘Judicial Circuit in and for ‘Dade County,

Florida, against Metropolitan Aircraft Sorporation and

Mooney Aircraft for damages sussained.as a_ result of

the crash. (R. 117).

vu

oy

p-.

On: April 7, 1961, * Silenine a - hearittg, the Coun enterec

judgrfient against Mooney Aircraft and in favor of the -

_. Delray Beach Aviation Corporation in the sum of $17.-

~ 964.00 and “against Mooney Aircraft in favor of Bert ~

Boldt ‘in the sum of $655. 00. (R. 118- le

in the employ of Mooney Aircraft and received no. salary

: from. it. He was a vice ‘president of Mooney Sales Com-

pany. He had an office in the place of business of

Mooney Sales Company at Kerrville, Texas. He, among

other duties, had superv ision of the distribution in Flor-

ida of airplanes manufactured by Mooney Aire raft. (R.

124). - |

Richard ‘Martin, ‘Vice President of Mooney Sales Co om-

pany, visited Metropolitan. Aircraft . from time to ‘time.

Richard Martin at one time attended an aviation show

in Viams where he displayed aircraft and set up a moc *k-

up of an airplane cabin (R. 140).

Mooney Aircraft never qualified to do -business in the

State of Florida and it was never licensed 6, de busi-

ness in that . State. It never appointed an agent for the

service of process 1n that state. (R. 135)

The advertisement in the February 1959 issue of the

magazine Flying was paid for by the distributors and

dealers listed. (R. 140-141). Neither Mooney Aircraft

nor any ‘of its officers owned any stock in Metropolitan

Aircraft. None of Mooney Aire raft’s officers or. the mem-

bers of its Board of Directors were - officers or members

of the Board of Directors of Metropolitan Aire raft. Lal

_. During the period in question, Sichend Martin was not .

a

ry

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airplane. that crashed was sold: to Delsey Beach Avia-

tion Corporation by Metropolitan Aircraft of Miami, Flor-

ida. The airplane ‘had been earlier purchased by Metro-

’ politan Aircraft from Mooney Aircraft at its place of

business at Kerrville, Texas, and paid for there.

rf

Under the Distribution and Sales Agreement between

Mooney Aircraft and Metropolitan Aircraft,. which was |

" entered’ into on September 23, 1958, Mooney Aircraft

reserved the right to make ‘sales in Florida-for certain

types: of, buyers. “Mooney Aircraft did not exercise ‘that

right. (R. 135-140, 141).

Under. the Distribution and Sales hone. Mooney

Aircraft agreed that in the event of the termination of .

the Agreement it would purchase from Metropolitan Air-

craft any new or unused Mooney products in its posses-

sion at’ the time of the termination. Mooney Aircraft

did not repurchase any airplanes from Metropolitan Air-

eraft. under that provision. (R. 141-142).

In the Distribution and Sales Agreement between Mooney -

Aircraft and Metropolitan Aircraft, there are present all

of the following features which are indicative of the

absence of the existence of a principal-agent relation-

ship:

The distributor gets legal title and possession of the

goods;

The distributor becomes liable for. an agreed price:

The distributor can fix the price at which he sells:

The distributor can se!l without accounting to the manu-

facturer for the difference between what he receives and

what hé pays; and ,

‘

nae 7 a

e. The risk of loss of the goods after delivery to the dis--

tributor is upon him (distributor): (R. 143).

From November‘l, 1958, through October 31. 1961, Mooney

Aircraft. Inc. and Mooney Sales Company operated -under the

terms of the. following agreement:

_ “THIS AGREEMENT, made and entered into on this 31st

day of October, 1958, by and between Mooney Aircraft, Inc..

hereinafter called ‘'First: Party’’, and Mooney Sales Com-

pany. hereinafter valled ‘Second Party’’, WITNESSETH:

First Party agrees to sell to Second Party and Second

Party agrees to purchase from First Party ‘all aircraft and

aircraft parts and accessories that might be manufactured by

' First Party and/or that might be purchased by First Party

and installed in or on aircraft manufactured by First Party at

distributor’ s net price to be designated’ ‘from time to time by

First Party less 4.5% of such ‘distributor's net price, said

sum to be due and payable by Seéond Party to First Party

within ten days after each aircraft is: made ready for delivery

in-accordance with bona fide order received by Second Party

from any authorized Mooney distributor or dealer or. anyorie

else to whom Second Party is willing to sell:

Second Party agrees to use reasonable effort to sell, at

‘its sole cost and expense, all aircraft manufactured by First

Party.” (R: 246-247, 291, Appendix D. infra, page 35).

Mooney Aircraft, Inc., and Mooney Sales Company were

separate corporations, (R. 183- 184), .no off® who-owned any

stock in Mooney Aircraft, Inc.. owned any stock in Mooney

Sales Company. (R. 226). Fdward B. Hunnicutt was secre-

tary-treasurer of both corporations, but otherwise there was

no duplication of employment, (R. 299 296). the offices of

the two corporations were separate, (R. 225), the distributors

ohn: were already established were recognized by Mooney

Sales Company (R. 226), and all advertising was handled by

Mooney Sales Company. (R. 246-247).

The. sign reading ‘ ‘Mooney Sales and Service’ was pur-

chased by Metropolitan Aircraft Corporation and was ihe

property ‘of-Metropolitan Aircraft Corporation. (R. 219-220).

During the _period in question, the President of Mooney

Aurcraft, Inc., ‘made two telephone calls from Midland, Texas

to Miami, Florida, to Director, Graduate Placement, seeking

the names of graduate mechanics who might be interested in

employment by Mooney Aircraft, Inc., at Kerrville, Texas.

(R. 223-224, 49-250).

During the period in question, other thar the two tele-

phone calls by the President of Mooney Aircraft, Inc., from

Midland, Texas to Miami, Florida, ‘which are refe rred to

above, the Record is completely void of any contact, local

or otherwise, between Petitioner, Mooney Aircraft, inc., or.

any agent thereof, with any person, firm, corporation or in-

stitution whatsoever located in the State of Florida.

Upon hearing of the case, the United States District

Court for, the Western District of Texas rendered judginent

for Petitioner on both issues and ordered that Respondents

take nothing by way of their suit. (R. 171).

From the District Court’s judgment, Respondents brought

their appeal to the Court of Appeals for the Fifth’ Circuit, |

which court held that Petitioner was doing business within

the State of Florida within the contemplation of the Fiorida

Statutgs and the Due Process Clause of the Constitation of

the United States and rendered judgment for Respondents.

(Appendix A. infra, page 14-32).

.

Petitioner wishes to correct the following Six statements

made by the Court of Appeals for the Fifth Circuit in its

opinion dated May 6, 1964 (Appendix A, infra. page 14-32).

1.

to

It is stated on page 2-3 of said opinion that The su-

nificant fact is that it was sold to Metropolitan, as a

distributor, for its use or resale within the geographical

limits of the distribution -area.” Under the terms of the

Distribution and Saies Agreement there were NO geo-

graphical limits for the resale of aircraft: by Metropoli-

>

- tan. (R. 135-140).

It stated on page 3 that We have a Florida suit assert-

ing a cause of action at least coming into being in Flor:

ida and closes related to the very activities giving rise

to the designation: by Mooney Airerattrof a Florida rep-

resentative phe sale of Mooney planes ip Florida.

The only possible way in which the alleged “ause of

Action in the Florida sult was related to Moones Ai-

craft. Inc. was the. mere fact that the airplane which

was involved in the accydent Was manufactured by

Moones Aieraft. Inc.

It is stated on page 10 that a representative acting

‘eather for Moones Aureraft. Inc.. or its exclusive sales

“a ‘

outlet. Moones Sales. Companys. made frequent trips inte

the Stas: of Florida for the purpose of service calls

stimulating sales. and the like.” . The Record and. the

findings of facet bs ‘Judge Heary No Graven show ‘that

Richard Martin. Vice President of Voones “Sales Cam:

pany. was the one who made the trips imte the State of

Elorida during the period in question and by ne stretch

of the imagination was he a representative acting for

Voones Aircraft. Ine.

-10

-

4. It is stated on page 11 that ° Mooney Aircraft, engaged

in the manufacture of airplanes in Texas, but aware ‘that

its commercial success depended on the intensive sale .

of its airplanes throughout the nation, purpesefully

sought to enter and compete in the Florida market.

of ., The Rec ord” is clear that during the period in question

' Mooney Sales Company; a Texas corporation with i

only office in-Kerrville, Texas, was Mooney ee s

exclusive sales outlet, therefore, Mooney Aircraft, Inc.

_was not competing in the Florida market. From and

after November 1, 1958. if anyone was competing in the

Florida market it was Mooney Sales Company and not

Mooney Aircraft. Inc.. ov. ;

5. It is stated on page 11-12 that © Through this medium

it was doing Substantially everything which a branch

The Record is clear that Metropoli--

a

could have done.

tan Aircraft was not restricted to the sale of Mooney

airplanes exclusively. Mooney Aircraft, Inc: had no

right to hire and fire the employees of Metropolitan, no

right to appoint or cance! any of Metropolitan's dealers,

did not participate in any profits or losses by Metro-—.

politan and Mooney Aircraft, Inc. paid no remuneration

to Metropolitan or vice versa.

6. It is stated on page 12 that Not, through constitutional

eyes, must there be: any distinction where in fact the

contacts are suffic ient, as ‘thes are here.” As stated

hereinabove, during the period in question, the only +

contacts by Mooney Aircraft, Inc. were two telephone

calls from Midland, Texas, by its president regarding

a mattef completely. unrelated to Metropolitan Aircraft

and completely unrelated to the sale of aircraft.

1]

>

’ REASON FOR GRANTING THE WRIT

1. The decision of the Court of Appeals is not in accord

with the applicable decisions of this Honorable Court for the

reason that ‘‘minimal contact’ was non-existent. -

It is to be noted that the suit was not concerned with mat-

ters arising out of any activity of Petitioner in the State of

Florida.

In the ease of ntesmatironal Shoe Tompany v. Stat i

Washington, 326 U.S. 310, 66 S. @&. 154, for a period of sev-

eral Vears. the Appellant emplosed i to 13 salesmen under

direct supervision and control of sales manufacturers located

in St. Louis. . These salesmen resided in Washington; their

principal activities were confined to that State; and they

were compensated by commissions based upon the amount of

their sales. Appellant supplied its salesmen with a line of

samples, each consisting of one shoe of a pair, which they:

displayed to prospective purchasers. On occasions, they

rented permanent sample rooms for exhibiting samples., in-

business. buildings, or rented roors in hotels or business

buildings temporarily for that purpose. The cost of such

rentals was borne by Appellant. The authority of the sales-

men was limited Lo exhibiting the gprvles and soliciting or-

ders from prospective buyers. at prices and on terms fixed

by Appellant. The salesmen Would transmit the orders to

Appellant's office in St. Louis for-acceptance or rejection

and when accepted, the merchandise for filling the orders

was shipped F.O.B.-from points, outside Washington to the

‘purchasers within the State. ‘ .

‘This: is .the leading case which enunciates the **minimal

contact’’ doctrine but it is obvious that this Honorable Court

would have held that the State of Washington did not have

jurisdiction over Appellant under the Due Process Clause

except for the fact that the obligation which was being sued

upon arose out of the activity of Appellant in the State -of

Washington. . ; “s |

Petitioner had no salesmen or other employees or agents

who resided in Florida and the aircraft manufactured by Peti-

tioner was. sold, paid for and delivered at its place of busi-

ness- at Kerrville, Texas. Furthermore, the obligation sued

upon did not arise out of any activity of Petitioner in the

State of Florida...

Chief Justice Warren. in the majority opinion in the case

of Hanson v. Denck!a, (1958), 357 U.S. 235, 78 S. Ct. 1228,

2. L. Ed. 1283, referred to the trend away from the earlier

' rigid rules in connection with state jurisdiction over non-

‘residents und then went on to state (p 251 U.S.):

‘* But -it is a mistake to assume that’ this trend heralds

the eventual demise of -all restrictions on the personal

jurisdiction of state courts. * * * Those.restrictions are

more than a guarantee of immunity from inconvenience or

distant litigation. .They are a consequence of territorial

limitations on the power of the respective States. How-

ever minimal the burden of defending in a foreigu tribunal, —

a- defendant may not be called upon to do so unless, he |

has hdd the ‘minimal contacts’ with that State that are a

prerequisite to its exercise of power over him * * *.

CONCLUSION — e

For the foregoing reason, this Petition for Writ of Cosine

should be qe. .

R ait, eae

L 7,

Le

7 HAL Me ket

‘Box 872

Midland, Texas

. ¢

Attormey of Fier ‘ord

for Petitioner

ta,

14

APPENDIX A

IN THE

Bea United States Court of a

_ FOR THE FIFTH CIRCUIT

No. 20878

DELRAY BEACH AVIATION CORPORATION and

BERT BOLDT, : an

Appellants,

versus ‘

MOONEY AIRCRAFT, INC.,

Appellce.

Appeal from the United States District Court ‘for the

Western ‘District of Tezxas..

(May 6, 1964.)

Before HUTCHESON and. BROWN, Circuit Judges, and

CHRISTENBERRY, District’ Judge.

BROWN, Circuit Judge: The question in, this case is

whether the Florida Long Arm service of process statute .

reaches as far as Texas. The District Judge, in a suit

‘brought on a Florida State Court default judgment,

' answered in the negative. Picking our way as best we

{ z

15 “Delray Beach Aviation Corp., et at. v. Mooney

' + “Aircraft, Inc.

can on.this Erve trail, cf. United Services Life Ins. Co.

vy. Delaney, Paul Revere Life Ins. Co. v. First’ Nat'l

Bank, 5 Cir., en banc, 1964, .... F.2d .... [Nos. 19531,

19604, February 4, 1964 | (concurring opinion), we con-

Glude that as Florida construes its Act, the operations’

of defendant-appellee were within the: reach of the

statute. And consideration of these same factors

demonstrates that. for the limited federal due proce$$

inquiry, ‘no constitutional obstacle exists. We there-

fore reverse. .

The State Court suit was brought by a purchaser’

against Mooney Aircraft,” the manufacturer of the

Texas-built Mooney Mark 20A. .Sough: were damages

for the totai loss of the plane. when it crashed in Flor-

ida allegediy due to faulty manufacture. Delray had

purchased the plane from Metropolitan* in the regular

course of Metropolitan’s operations as the distributor

for Mooney Aircraft in this particular area. Metro-

-politan had earlier acquired the plane from Mooney

Aircrait. Utterly irrelevant to our problem is Mooney

Aircraft’s.insistence—which we may credit arguendo— ~

that this sale was made in: Texas, where title passed,

not in Florida. The significant fact is that it was sold

to Metropolitan, as a distributor, for its use or resale

1 The purchaser was Plaintiff, Delray Beach Aviation

Corporation; also joined as a Plaintiff was Bert Boldt, the

pilot, suing for personal injuries.

= Mooney Aircraft, Inc. This Kansas corporation is to be

distinguished from Mooney Sales Company, a Texas corpora-

tion. : as .

Metropolitan Aircraft Corporation.

\ a

«

«

Delray Beach Aviation Corp., et al. v. Mooney * 16

Aircraft, Inc.

within the geographical limits of the distribution area.

Consequently, one of the some-time obstacles -is not

present here. We have a Florida suit asserting a

cause of action at least coming into being in Florida

and closely related to the very activities giving rise |

to the designation by Mooney Aircraft of a Florida

representative—the sale of Mooney planes in Florida.*

The Figrida arm is not only long. It is strong, and

its sinews were strengthened by the legislative reflex —

to court decisions. - In, 1951 Florida enacted $47.16 sub--

section 1.°5 This Act like others in Arkansas, Illinois,

Maryland, Minnesota, Vermont, Washington, and Wis-

4 Thode, In Personam Jurisdiction; Article 2031B, the

Texas:“‘Long Arm” Jurisdiction Statute; And the Appearance

to Challenge Jurisdiction in Texas and - Elsewhere, 42 Texas

L. Rev. 279, 303 (1964). ;

5 Fla. Stat. $47.16(1) provides: : Gues

“(1)-.The acceptance by -any person or persons, bade?

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

foreign corporations, * * *, of the privilege extended by !aw

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, shall be deemed

equivalent to an appointment by such persons and foreign

corporations of the secretary of state of the state as the

agent of such ‘persons or foreign corporations upon whom

may be served all lawful proccss in any action, suit or pro-

ceeding against them * * * arising out of any transaction or

operation connected with or incidental to such business or

business venture, and the acceptance %f such privilege shall

* be signification of the agreement of such persons and foreign

corporations that any such process against them * * * shall

be of the same legal force and validity as if, served personally

on such persons or foreign corporations. Service of such

process shall’be in accordance with and.in the same manner —

‘as now provided for service of process upon nonresidents

under the provision of §47.20. Provided that if a foreign

corporation has 2 resident agent in the state, service of

- process shall be had upon.such- resident agent as now pro-

vided by statute.”

17 Delray Beach Aviation Corp., et al. v. Mooney

Aircraft, Inc. 2 -

consin" reflects a purpose to Feach as far as thé Fed-

éral Consfitution permits. ‘The ‘indications are that

when the Second Circyit-found this Statute inadequate

-‘to-sustain an earlier Florida State Court judgment,

Berkman vt. Ann Lewis Shops, Inc., 2 Cir.,..1957, 246

2d 44, affirming S.D.N.¥% 1956, 142 F.Supp. 417, Flor-

ida responded to the Court's suggestion that “this is

not to say that a Statute might not constitutionaliy be

drawn,. which would make the presencé in a state of a

wholly-owned subsidiary of a foreign corporation suf-

ficient basis to assert jurisdi¢tion over the parent

‘ company."? See 142% F.Supp: 417, at 422. It did

6 See Thode, supra, note 4, at 304. : at Be

We are. indebted to that article (id. at 397 nn. 172, 173)

for correcting the typographical error perpetuated by the law

reports so that “amendability” reads “amenability” in the

extract from Lone Star Motor Import, Inc. v. Citroen Cars

Corp., 5 Cir., 1961, 288 F.2d 69, 72-73. There, speaking of:

the purpose of the Texas Long Arm Statute, we said;

_ “Indeed, it séems ‘highly Likely that, as is true for -

similar legislation in many other states * * * thesT¢ xas

purpose was to exploit to the maximum -the fullest .

permissible reach under Federal constitutional restraints.

It was also, as it has been for other states, a means of

avoiding the troublesome difficulties of tying amen-

ability of service of process to taxability of a foreign

corporation, or denying it access to tthe courts and re-

lated problems of the regulation of the right to do

business:” (Footnotes omitted,. emphasis supplied.)

See also Stanga’v. McCormick Shipping Corp., 5 Cir., 1959,

268 F.2d 544, 550: Bluff Creek Oil Co. v. Green, 5 Cir., 1958,

257 F.2d 83, 86; Green v. Bluff Creek Oil Co., 5 Cir., 1961,-

‘287 F.2d 66, 67 n.1- :

7. In Deere & Co. v. Watts, FlaDist.Ct.App:, 1963, 148

So.2d, 529, the Florida Court quoted, as we did. above, from

the District Court opinion in the Berkman case and stated |

with reference to-the 1957 amendment: ;

“The langudge of the district court decision, how-

ever. indicated that had Florida’ enacted a statute au-

thorizing such substituted service, it wouid be constitu-

tional. : : :

, “* © * ; :

‘“In accordance with the language of the Berkman

decision it is our opinion thet the service of process

~ |

Delray Beach Aviation Corp., et al. 2. Mooney 18

| Aircraft, Inc. : . |

this* by adding Subsection 2 to $47.16, note 5, supra so as

to encompass distributors, jobbers, ‘wholesalers,, and

brokers for foreign corporations.”, “And the muscles

were beefed up by the legislative declaration of policy

stated in emphatic terms." |

~

Although the cases do speak. in terms of the one in-

voking substituted service having the “burden of pre-

upon the appeHant, in conformity with our §847.16 and

47.30 * * * met all the requirements of due process of

. »* law.” ‘

148 So.2d 529. at 531, 532. e

. Florida has responded -to court decisions with legislation

before. See Fle Stat. $768.01 as amended, Fla.Laws 1953, .

ch. 28280, $1. The 1953 amendment was presumably a re-.

sponse to this Court’s decision in Graham v. A. Lusi, Ltd.,

5 Cir., 1953, 206 F.2d 223, see Emerson v. Holloway Concrete

Prod. Co., 5 Cir., 1960, 282 F.2d 271, 278, 285 (dissenting

_ opinion). .~ Come ase .

9 FlaStat. §47.16(2): “Any person, firm, or corporation

which throug.’ brokers, jobbers, w olesalers, or distributors

sells, consigns, or leases, by any means whatsoever, tangible

or intangible personal property, te any. person, firm or cor-

poration in this state, shall be conclusively presumed to be

cperating, conducting, engaging in or carrying on a business or

business venture in this. state.” Florida Laws 1957 ch.

57-747, §1. .

1” “WHEREAS, persons, firms, and corporations in other,

jurisdictions are ‘directiv or - indirectly furnishing millions

of dollars worth of tangible and intangible personal property

to persons, firms and corporations in this State each year:

and = = .

“WHEREAS, ‘litigation in both tort and contract fre-

quently arises out of the purchase, leare, consignment, use

and consumption of such property each year; and

“WHEREAS, the cost and expense of ‘going to other

— jurisuicuons, both national and international frequently has

the practical effect of denying all rights and remedies re-

‘garding such purchase, lease, consignment, use and = con-

- sumption; and See :; . me

_ _ “WHEREAS, it is just and fair that ‘such litigation: be

conducted in:this state, rather than ina foreign jurisdiction, ©

NOW, THEREFORE, i ;

“Be It. Enacted by the Legislature of the State of

“- Florida:” ,

Fla. Laws 1957 ch. 57-747. — .

19 Delray Beach Avigtion Corp., et al. v. Mooney

. Aircraft, Inc.

senting a situation’ that clearly. justifies its applica-

tion,’ since the “statute must be. strictly construed,”

Fawcett Publications, Inc. v. Rand, Fle. Dist.Ct.App..

1962, 144 So.2d 512, 514, the Florida decisions—many of —

~ them, prior tc the sweeping amendment of 1957—have

ign a very liberal application in actual practice to

_$47.16.'' And none-.represents a retreat from the legis-

‘lative objective. The requirement that one invoking

the provisions of §47.16(2) “has the burden of- pre-

senting a situation that clearly, justifies its applica-

tion,” 144°So.2d 512, 514, is no judicial contraction. It

is primarily the prescription of a sound administrative

. practice. Florida Courts are rightly. conscious that _.

there are limits. They are aware that, as recently put

by Judge Jones for this Court, “Hanson v. Denckla"?

* * * teaches that, although ‘the door of non-resident

jurisdiction has been opened wider b%.. International’

Shoe and McGee, it has not been removed from its

1 E.g., State ex rel. Weber v. Register. .Fla., 1953, 67

So.2d 619 (out-of-state owner of orange grove subject. to

jurisdiction of Florida courts in suit to recover real estate

: commiszion since listing of grove for sale is ‘business.

venture” within meaning of $47.16); State v. Harrison, Fia.,

1954, 74 So.2d 371 (foreign corporation engaged in the saie

of “retail credit discount” warranties in Florida by means of

brokers was engaged in a business venture within scope of

$17.16); Wm. E. Strasser Constr. Corp. v. Linne Fla., 1957,

$7 So.2d 458 (jurisdiction of breach of contract suit ‘by con-

tractor against individual nonresident owners of land who:

had entered into construction contract for building of apart-

ment: house upheld under §47.16--suit was on Sec of State);

Continental Copper and Steel Industries, Inc. v. E¢C. “Red”

Cornelius, Inc., Fla.Dist.Ct.App., 195%. 104 So.2d 40 (out-of-

state manufacturer of ‘electrical cable stibjected to juris-

diction of Florida Courts in breach of warranty suit. by

contractor).

Certainly the cases construing subsection 2 of ‘$47.16

note 9, supra. reveal no begrudging attitude which would

otherwise thwart the legislative policy. declaration. - ad

tz 1958, 357 U.S, 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283.

Delray Beach Aviation Corp., et al. v. Mooney i

Au. craft, Inc.

hinges.” Dooly v. Payne, 5 Cir., 1964, .... F.2d ....,

|No. 20382, January 21, 1964). The result is that

_ some party has the obligation of bringing forward the

relevant information sufficient to satisfy the dué-proc-

ess and local statutory requirements. Florida puts it

squarely on the one invoking the process.

Nor is any such restrictive approach to bé found i»

the dual substantive standard set forth in Fawcett

Publications, Inc. v, Rand, Fla.Dist.Ct.App., 1962, 144

So.2d 512, yust discussed, supra, and other similar cases.

Fawcett Publications, Inc. v. Brown, Fla.Dist.Ct.App..

1962, 146 So.2d 899; Jenkins v. Fawcett Publications,

Inc., D.C. Fla., 1962, 204 F.Supp. 361. Giving substantive

content to the procedural burden discussed above, the

Court in the Rand case requires that the one invoking

the process must demonstrate either “i1) that the

foreign corporation has some degree of contro] over

the personal property referred to in $47.16. ”. supra.

in the hands of the ‘brokers, jobbers, wholesalers .o:

distributors’ selling or distributing the personal prop-

erty in this. State, or (2) that the fereign ce rporation

has some degree of control over the ‘brokers, jobbers.

wholesalets or distributors’ sélling or dist:ibuting the

persona! property in this State.” 144 So.2d d!2, did.

In the recent decision in Deere & Co. v. Watts, —

Fla.Dist.Ct.App., 1963, 148 So.2d.529, the same Court ot

“Appeals deciding Rand sustained service on the nan-'/

resident parent. by service on the local subsidiary / eae

action of the subsidiary in -Florida was substantially:

-

21. Delray Beach Aviation Corp., et al. v. Mooney

. - Aircraft, Inc.

that of a jobber or distributor, and ‘element (2) of

Rand was satisfied by evidence showing “the extent of

the subsidiary’s activities within” Florida and, more

important for our situation, “the degree of control

* which the appeliant {nonresident parent] was capable

of exercising over the operations and policies of the

subsidiary.” (Emphasis added.) The resuit could not -

have been surprising since the Court “felt impelled to

give full effect to the legislative intent apparent in ~

£47,162). 148 So@d 529, 531.

The ‘evidence overwhelmingly demonstrates that —

Mooney Aircraft had the requisite control over ‘Metro-

politan, its distributcr. There were two simultaneously .

executed agreements, the “Distribution and Sales

Agreement” and the “Service Agreement.” ‘The “Dis-*

tribution and Sales Agreement” appears to be the

master agreement since in SII Par. 2, the distributor 1s

required to “Maintain service facilities in accordance

with the terms of the accompanying Service Agree-

ment.” The Agreements bound Mooney Aircraft to seil

its airplanes to tne distributor at wholesale prices, to

supply advertising and promotional material and sales —

aids, to maintayp a service department, to maintain a

stock of repair parts and a staff of service representa-

tives available to the distributor for personnel train-

ing ‘and cansultation, to train distributor servicemen

at the Texas factory and furnish signs showing a dis~

tributor to be an “Official Mooney Service Center”

when any of its servicemen had been certificated. by

Mooney Aircraft and finally, to refrain from appoint-

i e : ‘

‘Delray Beach Aviation Corp., et al. v.. Mooney, 22

Aircraft, Inc.

ing any other distributors within the assigned terri-

tory.”

The Agreements likewise imposed heavy obligations,

both express and implied, on the Distributor. Many of

these obligations were stated In quantitative or ‘quali-

tative terms which necessarily implied appraisal of

their sufficiency by Mooney Aircraft, Inc."*

The overriding purpose of the Agreements was to

stimulate the sales and service of airplanes manu-

factured and sold by Mooney Aircraft. The distributor

was’ required to “provide adequate sales facilities.

maintain- sales staff and cover intensively and con-

sistently through sales solicitation, advertising and pro-

motional activities, the distributor's territory.” it was

te be identified as a Mooney distributor by ownership

i The territory was described as “the State of Florida,

excluding the Counties of Escambia, Santa Rosa, Okaloosa,

Walton, Holmes, Washington, Bay” and “in the State of

Georgia: the southern counties berdercd on the north by

and inéluding Miller, Mitchell. Coloquitt,. Cook, Berrien, At-

kinson, Ware, Brantley, Glynn.”

1) In SII of the Service Agreement, the Distributor agreed

wow 13) - send at least one qualified, serviceman for

‘training at the Mooney Factory Service Schoo!,” (2) “main-

tain service facilities for all owners oi” Mooney airplanes

“including adequate equipment to permit proper testing and

normal repair. and an adequate stock of repair parts as

recommended by Mooney Aircraft Service Department as well

as qualified technical personnel © * ©.” 3) “display prom-

inently any signs or Certificates” showing servicemen “Cer-

tificated by Mooney Aireraft, Ine.” (4) “furnish free service

te all aircraft sold by it in cases where the Mooney warrants

is applicable,” (5) “establish a schedule of charges for

service * * * which shall become effective when approved by

the Mooney Aircraft Service Department manager,” (6) “re-

spond promptly to all requests for service on Mooney air-

craft.” and (7) “observe carefully all CAA rules and regula-

lations on servicing any Mooney aircraft.”

> a Delray Béach Aviation Corp., et al. ~. Mooney

Aircraft, Inc.

of demonstrator aircraft and posting of adequate : dis-

play signs. And sales were not limited to its own since

the distributor was. required to “solicit ‘and appoint

dealers and representatives within the assigned terri-

‘tory for the promotion of retail sales of new Mooney’

Aircraft.” Virtually <unlimited control was given to |

Mooney Aircraft over the: distributor’s performance

since Mooney Aircraft could cancel for “breach of con-

tract” by immediate written notice and without cause

of any kind by thirty days’ written notice prior to an

anniversary date.

The evidence is also uncontradicted that this was no

mere paper arrangement. A representative acting

either for Mooney Aircraft, Inc. or. its exclusive sales

outlet, Mooney Sajes Company, made frequent trips

into the State of Florida for the purpose of service

calls stimulating sales, and the like.” And Mooney

Aircraft held out to the world—at least the flying

15 The Distributor—-Service Agreement was executed Sep-

tember 23, 1958. It was not terminated until after the

Florida State Court suit. These Agreements governed the

relations between Metropolitan and Mooney Aircraft for -the

sale, distribution and seryice of ‘airplanes in the prescribed

territory. No contrastual relationship was established be-

tween Metropolitan and Mooney Sales Company. Conse- |

quently, the ‘exclusive Sales‘ Agreement between Mooney Air-

craft, Inc. and Mooney Sales’ Company dated October 31,

1958, stated to “be perpetual” but effectually cancelled when

Mooney Aircraft and Mooney Sales merged in 1961 is of no

significance. -This is so even assuming, as. contended, that

the traveling . representative Martin’ wes an employee of

Mooney Sales Company only, and not Mooney Aircraft. The

sales and servicing of Mooney planes in this Florida-Ceorgia

territory had been exclusively committed to Metropolitan by

Mooney Aircraft Additionally, the national advertising sub-

sequent io October 31, 1958, see note 16, infra, treated

_ Metropolitan as a sales and service distributor of Mooney

Aircraft, Inc.

Delray Beach Aviation Corp., et al. v. Mooney 24

Aircraft, Inc. - Seay |

world—that its representative in Florida was Metro-

politan. Aircraft Corporation. In the February 1959

issue of Flying, modestly described as “The World's

Most Widely Read Aviation Magazine,” there was a

double spread ad sounding the praises of Mooney’s

airplanes and its sales and service distributors and

representatives."*

Mooney -Aircraft, engaged in the manufacture of air-

planes in Texas, but aware that its commercial success

depended on the intensive sale of its airplanes through-

yut the nation, purposefully sought to enter and com-

pete in the Florida market. With a choice of doing it

by direct employees in a company branch, or through

a traditional sales and service distributor, it deliber-

ately chose the latter. In so doing, it was careful to

maintain its own ‘image, reputation and prestige,

through the means of broad and exacting supervisory

contro] over the quality and type of its distributors’

activities. “Through. this medium it was doing sub-

cena LO

16 On the left hand page just:above a tabulated list -by ..

states of the distributors, including Metropolitan, the ad-

vertisement stated: “We, distributors and dealers of Mooney

Aircraft, invite you to see and fly the Mark 20 and Mark

20A * * * and we assure our many customers of fast, ef-

ficient factory-like maintenance service.” On the right hand

side was the Company's sales pitch bearing the name “Mooney

Aircraft, Inc., Kerrville, Texas” in large type and ending with

the plea, “See your Mooney distributor or dealer now.”

Since it is uncontradicted that “the copy, for the ad-

vertisement was prepared by, and_ its publication arranged

through, the public relations counsellor for Mooney Aircraft,

‘it is irrelevant that ail or a substantial part of the cost of

the space may have been contributed by the -respective dis- +

tributors whose names were listed.

Pure.

25 Delray Beach Aviation Corp., et al. v. Mooney

Aircraft, Inc.

stantially everything which a branch could have done

Florida, as a matter of deliberate policy (seé note 10,

supra) sees NG distinction between the two. Nor.

through constitutional eyes, must there be any dis

tinction. where in fact tne contacts are sufficient, us

they are here.! tee AS elias pinta ah ene: oe

Holding. as we do, tHat by virtue of its operations

through Metropolitan, its distributor, $47.16) Wear

Mooney Aircraft was engaged .in business activity

‘within the State of Florida and therefore amenable to

service of process, the question still remains whether

thie manner of service was proper. There is no question

about actual notice. Mooney Aircraft was informed on

at least four occasions, twice by, the counsel for tite

State Court plaintiffs, and twice by Metropolitan, that

the suit had been filed. Guided by its president-lawyer-

witness, cf. Rachal v. Allen, 5 Cir., 1963, 321 Fld 449.

451 «dissenting opinion), Mooney deliberately took the

bold course of ignoring the Florida summons. Any lurk-

ing due -process problems are therefore narrowl: COn-

‘fined to the question of whether the Florida statutor’

structure reasonably assures that the nonresident

‘will have fair notice ‘and ‘@y, opportunity for a fan

defense. See.Wuchter v.’Pizzutti, 1928, 276 US. 1. 48

S.Ct. 259, 72 L.Ed. 446; National Equipment Rental

Cuthawet, 0. 2. UE... L.Bd.2d

354,357. . _ |

=

3 See ‘Thode. supra note 4, at 297-310, and see especialls

303-04

Delray Beach, Aviation Corp., et al. v. Mooney 24;

Aircraft, Inc.

The protess was not served on the Floriaa Secretary

of State. Rather, the service ‘was made on Metropoli-

- tan (through its vice-president)*as the “resident agent,

‘in’ the absence of the president, vice president, cashier,

‘ treasurer, secretary, general manager and director’

cf Mooney :Aircraft. As we understand Mooney Aitr-

craft’s contention, it is~this.--Although- Metropo: itan,

the. so-called resident agent, sent the process. “or 50

that Mooney Aircraft had direct, positive, writ‘en, ol-

ficial information. as to the pendency of the suit and

the purported service of process on it, Metropolitan was

not a “resident agent” and therefore as a matter of

technica! Florida statutory requirement, the ‘service

was imperfect. This necessarily assumes that had the

service been had upon the Secretary of State, it would

have been technically sufficient. The additional claim

is then made that since the statute does not express] |

compel the “resident agent” to transmit the process to

the foreign corporation, there is no assurance that 11

would be received, and hence the statute Is constitution:

ally deficient.

The last two sentences of $47.16(1) prescribe that the

service of the process “shall be in accordance with and

"in-the same manner as now prov ided for * * ” under

the provision of $47.30." The lasi adds a proviso “that

if a foreign corporation has a resident ‘agent in-the

state, service of process shail be had’ upon such resi-

a

1s This was the plain meaning of the “abbreviations used in

the sheriff's return.

97 Delray Beach Aviation -Corp., et al. v. Mooney

“2 Aircraft, Inc. :

_ dent agent as now provided by statute.” This brings

into play $847.30" and 47.17.”

Guided, as we must be, by the Florida standard con-

cerning the attributes of one having the status of an

“agent” for service of process, we think that Metro-

politan was “a resident agent” and that service of proc: .

ess “upon such resident agent” was permissible. The

District Judge seemed to think that Metropolitan could

not be acting for Mooney Aircraft since each was en-

gaged in its own separate business within the State of

Florida. If that means that factually Mooney Aircraft

-was carrying on business within this assigned territory

in its own right independent of Metropolitan, there 15

1 47.30 Method « of service upon nonresident.—Service

of such process shall be made by *-* * either leaving a COpy

of thé process * * * in the hands. of the secretary of state

* * * or by mailing a copy * * * to the secretary of state:

and such service shall be sufficient service upon a defendant

who has appointed the secretary of state as his agent for the

service of such process, provided, that notice of such service

and a copy of the process are. forthwith sent by registered

mail by the plaintiff, or his attorney, to the defendant, and

the defendant's return “receipt and‘ affidavit of the plaintiff.

or hig attorney, in compliance herewith are filed ‘with the

papers * ” * or that such notice and copy are served upon

‘the defendant, if found within the state, * + * Proof of

service of process on the secretary of: state shall be by 4

copy of the -notice of said secretary accepting such process.”

~~ “$47.17. Service of process on private corporation:

Process against any corporation, domestic or foreign, May be *

served : *

(1) {on president, vice president}

(2) {on cashier, treasurer, etc. |

(3) {on director. of the company}

(4) Upon any officer or business agent, resident in the

state.

(5) Ifa foreign corporation shall have none of the fore-

., going officers er agents in this state, service may be h&d

‘ upon any agent transacting business for it in this state

(6) [section not applicable insurance companies |

(7) the provisions of this section shall be eymulative to all

existing laws.” : :

é

Delray Beach Aviation Corp., et al. v. Mooney 28

. Aircraft, Inc.

~ no basis in fact for such a finding. F.R.Civ.P. 52(a).

If it means to imply that one cannot be a resident agent

if his own interests are being advanced while serving

the so-called principal, we thing it is erroneous in law.

Indeed, any such reasoning would be a repudiation: of

€47.16(1) aid especially subsection (2). Under ‘sub-

section (1), the atceptance by a nonresident “of the °

privilege * * * to operate, conduct, engage in, or carry

on a business or business venture in the state” 1s

_ .. deemed to be an appointment of the secretary of state

jsthe resident agent. Under subsection (2), anyone

who “sells, consigns, or leases, by any means whatso-

ever’ personal property “through brokers, jobbers,

wholesalers, or distributors” shall be “conclusively pre- .

-sumed to be operating, conducting, engaging in or

carrying ‘on the business or business venture in this

state.”

If Florida coristitutionally can, under certain circum-

stances, declare that one can be carrying on a business

through a distributor, then it is incongruous to con

clude, as the District Judge presumably did, that the

actions of Metropolitan were not in furtherance of the

interests of. Mooney Aircraft.

The inescapable fact which courts ought to be able

to recognize 1s that Mooney Aircraft and Metropolitan*

had. to a great extent, a mutual interest in the sale,

service, and distribution of Mooney airplanes. Para-

phrasing a celebrated apothegm, what was good for

Metropolitan was good for Mooney Aircrait, and vice

versa.

°

29 ‘Dilniy Beach Aviation Corp., et al. v. Mooney

Aireraft, Inc.

er)

_ Although Metropolitan “and Mooney ‘Ainceett: ‘did. not

stand in the traditional relationhip of principal and

agent, their close economic business ties were suf-

ficient to satisfy the Florida standard thci there be a’

“legal or moral duty on the part of the [agent | to °

report and properly. handle a summons served on him

as agent of” the foreign corporation. Mason v. Mason

Prode =Co., Fla., 1953, 67 S9.2d 762, 763.

This principle is followed by numerous courts. In

Fiat Motor Co. v. Alabama Imported Cars, Inc., DCL.

1961, 292 F.2d-745, 747, the Cour’ held that the District -

-of Columbia Code provision for service “on the agent

of such corporation or person conducting .its business”

was ‘broad enough to cover a distributor similar to

Metropolitan since the distributor “occupies such a re-

sponsible representative status ‘as to make it reason-

ably certain that he will turn over the process.”) That

Court cited our earlier decision in Acme Engr, Inc-

Foster Eng’r Co.; 5 Cir., 1958, 254 F 2d 259. Of course

this approach. was recognized in International Shoe

‘. where the Court stated that it “is enough that [the

_ foreign corporation] has established such contacts with

the state that the particular form of substituted service

_ adopted * * * gives reasonable assurance that the notice

will be actual.” 326 ue 310, at 320. (Emphasis. sup-

plied.) + /

It would be difficult to conceive of a relationship im-

osing a greater duty, either legal or moral,:on the

part of Metropolitan to forward a court summons to

- Mooney Aircraft. The claim arose out of the failure of

"Delray Beach Aviation Corp., et al. v. Mooney. 30°

Aircraft, Inc.

a Moorey airplane in flight. The business reputation.

- prestige and future sales of both Mooney Aircraft and

its distributor, Metropolitan, made it important that

this litigation be properly*handled. With so much at

stake for each in the future saies of Mooney airplanes

in that wide area, there was every reason to Suppose

that Metropolitan would do exactly as it did—transmit

the process immediately. Within the broad qualitative- |

quantitative standards imposed by the distributor sales |

and service agreement, Metropolitan would be aware

that failure to give notice to Mooney Aircraft in time

for it reasonably to protect its inferests would. ‘subject

the distributor to the likely cancellation of the contract

and the termination of what must have been deemed to

be 2 profitable ‘business connection. - AS we said in

Acme Eng’r, Ic. of a Texas, ‘traveling salesman,”

- Metropohtan here * ‘occupies such a responsible repre-

sentative status as to make it reasonably certain that.

it] will turn over. the process to its company. "And

“there, as here, the fact that the representative “ae-

tually passed {the process] on” may be censidered in

determining that reasonable probability. 254 F.2d 259,

263. It is this strong compulsion,” whether described

as a moral or a legal duty, to transmit the process on’

‘to the nonresident which supplies: what was held to be

the missing compuniction _it- Wuchter v. Pizzutti, 1928.

976 US. 13. 48 S.Ct. 259, .72 L.Ed. 446."

And in assaying the federal constitutionality of the

' Florida Statute, we must certainly look at it in-the light

2) 'We have here no accidental relation of a transcient

automobilist and service of process upon the Secretary .of .

State, a person wholly unrelated to the defendant, his busi-

ness, Or, indeed, his presence in the state.

dae

31 Delray Beach Aviation Corp., et al. v. Mooriey

Aircraft, Inc:

_—_—_

of Florida procedures which afford to a nonresident

defendant a full and unconditional opportunity to con-

test jurisdiction over the person of: the defendant‘to the

bitter end. Rule 1.1i(b), 1954, Florida Rules of Civil

Procedure, copied from F.R.Civ.P. 12, allows the cefense

of “* * * (2) lack of jurisdiction over the person mee

(4) insufficiency ‘of process, (95) insufficiency of serv-

ice of process + © ** to be made oy motion.”. The rule

.

was adopted with the purpose of abolishing former |

distinctions ° between general and ‘special appearances,

> gee Greenburg x. Greenburg, Fla.Dist. Ct.App., 1958, 101

So.2d 608, and the ‘Supremie Court in State-oj Florida

ex rel. Eli Lilly and Co. v.- Shields. Fla., 1955, 83 So.2d

271, has held that objection to the Court’s jurisdiction

over the person of the défendant is not waived or

prejudiced by participation in the trial and defense after

‘the objections are: Eee

That means that shaadi Aircraft, armed with full,

correct copies of the State Court pleadings and process,

with. detailed specific” information from Metropolitan

concerning the pendency of the case and the right

‘under Florida practice to enter a special appearance.

had a full, unrestricted opportunity to have the

Florida Court pass upon its own statute and the

sufficiency of the facts te support, either amenability

or the method of service, with right of review to the

United States Supreme Court thereafter as to any fed-

eral constitutional ee Of course the presence

2: See Thode, supra, note 4, at b 283-84, grouping Florida

with 22 other states using the motion practice ° Y

y mm “NK

Delray Beach Aviation Corp., etal. v. Mooney - 3f

Aircraft, Inc. fe ,

of this sensible and fair- procedure does not compel a

-nonresident tu submit either forthe determination of

_ that issue or the trial of the merits of the case. But

in no sense does the risk of standing one’s ground on

amenability to process carry with it a forfeiture of

_ the right to present a defense. . That Mooney Aircraft,

has lost that opportunity is the consequence of its own

deliberative choice to take the bold: course.

cs result is that the Florida State Court judgment

s entitled to full faith and credit, and the District Court

should enter judgment thereon.

-

REVERSED AND REMANDED WITH DIRECTIONS.

es

APPENDIX 8

United States Court of Appeals :

‘FOR THE FIFTH CIRCUIT

- October Term. 1963

- No. 20878,

| D. Co pocket NOMBOTS Civil,

DELRAY BEACH AVIATION CORPORATION and

BERT BOLDT,

Appeldiants

? reves

V.

MOONEY AIRCRAFT, INC.,

Appellee.

awnent from the Unite} States District Court for the’

Western District of Texas

Before HUTCHESON and BROWN, Circuit Judges, =

CHRIS’ TENBERRY, District Judge.

JUDGMENT

This cause came on to be heard: on tne transcript of the

record from the United States District Court for the Wester

District of Texas, and was > argued by counsel;

ON CONSIBDE RATION WHEREOF, It is now here ited

and adjudged by this Court that the judgment of the said Dis-

tet Court an this cause be, and the same is heteby, -e- ~

versed: and that this cause be. and it is: heret y remanded to

~thé-said District Court, with direc tions for entry of —

in accordance with the opinion of, this Court.

*

It as furthe r ‘ordered and adjudged by this Court that the .

appellee, Mooney Aire raft, Inc... be conde mned to pay the

_ COSTS of this cause ‘in this Court for which, execution miaty be

rssued out of the said District Court. °

May 6, 1964

Issued as Mandate: JUNE 16. 1964

34

APPENDIX C

United States Court of Appeals

FOR THE FIFTH CIRCUIT

NO. 20,878

DELRAY BEACH AVIATION CORPORATION and

BERT BOLDT,

‘ Appellants,

Vv.

‘’ MOONEY AIRCRAFT, INC.,

’ Appellee.

Appeal from the United States District Court for the

Western District of Texas

(June 5, 1964)

On Petition for Rehearing

* Before HUTCHESON and BROWN, Circutt Judges, and

CHRISTENBERRY, District Judge.

PER CURIAM:

Itas ORDERED that the petition for rehearing filed an

the above entitled and nuinbered cause be, and theesame os,

hereby DENMED.

35

APPENDIX D

THIS AGREEMENT. made and entered into on this 31st

day of October, 1958, by and between Mooney Aircraft, Inc.,

hereinafter called “First ‘Party’’, and Mooney Sales Com-

pany, hereinafter called “‘Seeond Party’’, WITNESSETH:

First Party agrees’ to sell to Sécond Party and Second

Party agrees to purchase from First Party all aitcraft and

aircraft parts’ and accessories that might be manufactiired

by First Party and/or that might be purchased by First Party

and installed in or on aircraft manufactured by First Party

at distributor's net price to be designated from time to time

by First Party less 4.5% of such distributor’s net price, said

sum to be due and payable by Second Party to First Party

within ten days after each aircraft is made ready for delivery

in accordance with a bona’ fide order received by Second

Party: from any authorized Mooney distributor or dealer or

anyone else to *hom Second Party is willing to sell. -

Second Party agrees to use reasonabie effort-to sell, at

its sole cost and expense, all aircraft manufactured by First

Party.

The period of duration of this agreement shall be per-

petual. |

EXECUTED in duplicate originals on the day and year

first above written

MOONFY AIRCRAFT. INC. = MOONEY SALES COMPANY.

By s .HAL RACHAL * By os’ NORMAN HOFFMAN °

President President

KIRST PARTY SECOND PARTY

y'