# Petition for Writ of Certiorari — Hood v. Hood > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0100%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 379 U.S. 915 ## Text Oftice-Suprome Court, US | = } 4 fe | : ‘ “ 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 a/ t- 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 10. ea b. 7 « 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 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' --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0100%3A2. Public record. Not legal advice.