Appendix — Moody v. Flying Saucers, Inc.

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APPENDIX A

Florida Statute § 48.181

48.181 Service on nonresident engaging in business in state

(1) The acceptance by any person or persons, individu-

ally, or associated together as a copartnership or any other

form or type of association, who are residents of any other

state or country, and all foreign corporations, and any per-

son who is a resident of the state and who subsequently

becomes a nonresident of the state or conceals his where-

abouts, of the privilege extended by law to nonresidents

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

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

office or agency in the state, constitutes an appointment by

the persons and foreign corporations of the secretary of

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

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

out of any transaction or operation connected with or inci-

dental to the business or business venture may be served.

The acceptance of the privilege is signification of the agree-

ment of the persons and foreign corporations that the

process against them which is so served is of the same

validity as if served personally on the persons or foreign

corporations. ’

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PERRET SES GIE LNAI LLLP NEY ENT AGEN re ey nF

(2) If a foreign corporation has a resident agent or offi-

cer in the state, process shall be served on the resident :

agent or officer. g

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

or leases by any means whatsoever tangible or intangible

personal property, through brokers, jobbers, wholesalers or

distributors to any person, firm or corporation in this state

shall be conclusively presumed to be operating, conducting,

engaging in or carrying on a business venture in this state.

oo tien ed

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APPENDIX B

[United States District Court for the Southern District of

Florida]

Order Granting Defendant's Motions To Dismiss and To Quash

(Number and title omitted) (Filed: April 24, 1969)

Tuts Cause came on to be heard on Defendant’s Motion

to Dismiss for lack of jurisdiction over the person and

Defendant’s Motion to Quash Service of Process.

The Plaintiff brought this action against the Defendant,

a citizen of Texas, for alleged breach of contract, and at-

tempted to obtain jurisdiction over the Defendant pursuant

to Florida’s long-arm statute, § 48.181, Florida Statutes, by

substituted service upon the Secretary of State.

The sole question presented is whether the Defendant’s

activities in the state constitute ‘‘doing business’’ or en-

gaging in a ‘‘business venture’’ within the meaning of

§ 48.181, Florida Statutes.

Without reiterating the facts, it appears from a careful

examination of the pleadings, affidavit, and, memoranda as

well as argument of counsel, that the Defendant’s activities

surrounding the alleged purchase of the vessel do not

amount to ‘‘doing business’’ or engaging in a ‘‘business

venture’’ in the state. See Hayes v. Greenwald, 149 So.2d

586 (Fla. 3rd Dist. 1963); James v. Kush, 157 So.2d

203 (Fla. 2d Dist. 1963); Uible v. Landstreet, 392 F.2d 467

(5th Cir. 1968). Cf. Strasser Const. Corp. v. Linn, 97 So.2d

458 (Fla. 1957); Florida Investment Enterprises, Inc. v.

Kentucky Co., 160 So.2d. 733 (Fla. 1st Dist. 1964) ; O’Con-

nell vy. Loach, 203 So.2d 350 (Fla. 2d Dist. 1967).

Thereupon, it is,

Orperep and Apsvupcep that the Defendaut’s Motions to

Dismiss and to Quash be and the same are hereby granted.

Doxe and Orperep at Miami, Florida, this 21 day of

April, 1969.

s/ Cuaries B. Futton

Charles B. Fulton

Chief Judge

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 28052

Fyne Saucers, Inc., a Florida Corporation,

Plaintiff-Appellant,

versus

SHeaRN Moopy, Jr., Defendant-A ppellee.

Appeal from the United States District Court for the

Southern District of Florida

(January 27, 1970)

Before Brown, Chief Judge, TutrLe and Morsay, Circuit

Judges.

Tutte, Cireuit Judge: This is an appeal from an order

dismissing a plaintiff’s suit for the purchase price of a

vessel, such dismissal being based upon a motion to dismiss

and quash service under Florida’s Long-Arm Statute, Fla.

Stats. § 48.181."

Since no evidentiary hearing was held, but the trial court

entered the order of dismissal on the simple motion alleging

that the defendant was a resident of the State of Texas

and had been served only by mail, we must test the correct-

ness of this order quashing service and ordering a dismissal

of the action by the contents of the complaint, together with

the affidavit attached thereto. There is no dispute of the

facts from which the trial court was required to arrive at

its conclusion on the question whether Mr. Moody was a

‘‘person ... who [is a] resident of any other state or

P

RY TEN ae

' Florida Statute 48.181(3) :

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

leases by any means whatsoever tangible or intangible personal

property, through brokers, jobbers, wholesalers or distributors

to any person, firm or corporation in this state shall be con-

elusively presumed to be operating, conducting, engaging in

or carrying on a business venture in this state.

SPT RS Le PEAT IRE TNL TE TI ETERS EN TT, OE PATE HOI ACRE, SOT

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country’’ who had accepted ‘‘the privilege extended by law

to nonresidents and others to operate, conduct, engage in,

or carry on a business venture in the state, .. .’’

The complaint had attached to it an affidavit, to which

no counter affidavit or showing has been made, presenting

the following state of facts:

(a) On or about April 18, 1968, the defendant spoke with

John F’. Manson, a major stockholder of the Plaintiff corpo-

ration, at which time the defendant advised the said Jack

Manson that subject to a survey he wanted to buy the oil

serew hydrofoil called the DISCO VOLANTE at and for

purchase price of $10,000 in cash and 22,000 shares of the

capital stock of The Empire Life Insurance Company of

America, an Alabama corporation; the defendant told the

plaintiff that his attorney was Senator A. R. Schwartz, of

Galveston, Texas, and agreed that his attorney would close

the transaction with the plaintiff’s attorney; a trial run of

said vessel was arranged for the following day. There-

after, the defendant sent his agent, one Rudy Teichman,

of Galveston, Texas, to Miami, Florida, to inspect and sur-

vey said vessel. That, thereafter, on or about April 19,

1968, at the request of the defendant, said vessel was

towed down the Miami River and a trial run conducted

under the supervision of the said Rudy Teichman. That

the said Rudy Teichman then advised the plaintiff and the

defendant that said vessel had passed the survey and au-

thorized and directed Allied Marine Corporation, a Florida

corporation, to haul said vessel, to clean said vessel, to

paint said vessel, to perform miscellaneous repairs to said

vessel, and to furnish miscellaneous supplies to said vessel.

Said work was in fact performed by the said Allied Marine

Corporation for the defendant. The defendant paid the

said Allied Marine Corporation for said services and mate-

rials.

(b) Thereafter on or about May 9, 1968, the defendant

employed a captain for the said vessel who, at Miami,

Florida, contracted with Allied Marine Corporation for:

dockage for said vessel ; day-by-day care of said vessel con-

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sisting of running her engines, pumping her bilges and

checking out her lines; and contracted with said Allied

Marine Corporation for the preparation of drawings and

specifications for the conversion of said vessel to a luxu-

rious day cruiser. Said plans and specifications were in

fact completed and delivered to the defendant’s agent and

master of said vessel, and thereafter the defendant paid

said Allied Marine Corporation for said services and mate-

rials. Additionally, the captain of said vessel, as agent for

the defendant, negotiated with various and sundry vendors

of Miami, Florida, for the installation of radios, air condi-

tioning, and other materials, negotiated with Miami ship-

yards for the conversion of said vessel, and negotiated with

a local marine architect for the conversion of said vessel.

(c) Thereafter, on or about May 17, 1968, at the request

of said A. R. Schwartz, attorney, of Galveston, Texas, the

defendant arranged for the transfer of the title of said

vessel to the defendant and the title to said vessel was at

Miami, Florida, transferred and registered in the name of

the defendant and the recorded bill of sale of enrolled, or

licensed yacht, vessel document, and Certificate of Owner-

ship, were forwarded to the said A. R. Schwartz, as agent

for the defendant, by mail from Miami, Florida.

(d) Thereafter, the said A. R. Schwartz, attorney, of

(Galveston, Texas, by Western Union Telegram on May 31,

1968, advised the plaintiff’s lawyer in words and figures as

follows:

‘*Henry Taylor

1451 Brickell Avenue

Miami, Florida

Have received all necessary documents for closing of

purchase of vessel DISCO VOLANTE by Shearn

Moody, Jr. Mr. Moody is in Europe at the time but

cash consideration and stock for balance of purchase

will be delivered to you in due course.

A. R. Schwartz, Attorney for

Shearn Moody, Jr.’’

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It being evident from a casual glance at this statement of

facts that the nonresident Moody was actively present in

the State of Florida by his several agents for a period of

approximately one month from April 19, when defendant

caused his representative Teichman of Galveston, Texas, to

fly to Miami, Florida, until May 17, when, at the request of

admitted counsel for the defendant, title of the vessel was

transferred and registered in the name of the defendant

and the recorded Bill of Sale of Enrolled, or Licensed

Yacht, Vessel Document, and Certificate of Ownership,

were forwarded to the defendant by mail from Miami, Flor-

ida, we must conclude whether these activities measure the

standards as contemplated by the Florida Statute of ‘‘doing

business’ or engaging in ‘‘business ventures”’ in the State

of Florida.

We begin our consideration of the question at issue by

recognizing that we are here to construe a Florida Statute.

In doing so, of course, the federal courts are required to

look to the decisions of the Florida courts. However, where

our court has construed such a statute and no intervening

state court decision has placed a different construction on

it, the rule of stare decisis binds us to our earlier decision

just as it does with respect to any other matter with which

the court has to deal. In light of this proposition, we lovk

to the latest decision of this court dealing with the breadth

of transactions that we have heretofore found to fall within

the concept of ‘‘minimum contacts”’ that would meet consti-

tutional requirements for a long-arm statute. This we do

because our court has on at least two oceasions categoric-

ally read the Florida cases as deciding that ‘‘the Florida

courts have given a liberal application in actual practice to

Section 47.16. The Florida ‘doing business’ statutes are

construed as broadly as consistent with due process.

Phillips v. Hooker Chem. Corp., 5 Cir., 1967, 375 F. 2d 189,

citing Delray Beach Aviation Corp. v. Mooney Aircraft Co.,

Inc., 5 Cir., 1964, 332 F. 2d 135.

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The appellee called to our attention a case relied upon

by the district court, Uible v. Landstreet, 5 Cir., 1968, 392

F. 2d 467. We note that the Uible case made no comment

upon the breadth of construction as commented on by the

earlier Hooker Chem. Co. case, but stating that ‘‘we must

be guided, with respect to the other contentions of Uible,

by the accepted principle that causes of this kind ‘are not

susceptible of an inflexible or fixed rule of law, but must

be decided on the facts peculiar to each case as it arises,’

Williams v. Duval County Hospital Authority (Fla, App.

1967) 199 So. 2d 299, 301;’’ and citing other cases, includ-

ing Hooker Chemical Corp., supra. The court then ex-

pressly pretermitted ‘‘the constitutional issue of due proc-

ess’’ apparently concluding that it did not disagree with

the statement by this court in Hooker Chemical, supra,

that the Florida courts had construed the statute ‘‘as

broadly as consistent with due process.’’ Although a

number of the Florida appellate court decisions cited to

us speak in terms of construing the long-arm statute

strictly, no case has been cited to us where the Florida

court has held contrary to our Hooker pronouncement to

the effect that the Florida statute was intended to be appli-

cable to the fullest extent permissible within constitutional

limits upon the state’s power to act extraterritorially. _

As stated in the Uible case and also in Hooker, ‘“Causes

of this kind . . . must be decided on the facts peculiar to

each case as it arises.’’ We conclude that the continual

activity of the nonresident in this case in sending his

representative to Miami to conduct a trial run of the ves-

sel, his hiring a captain with authority to have repairs

made, and having such repairs made and paying for them,

and preparing the vessel for meeting the specifications set

by the nonresident purchaser, coupled with the consum-

mation of the seller’s part of the transaction as to the non-

resident purchaser’s specific directions to have the neces-

sary documents completed for title to pass, fall well with-

in the concept of ‘‘minimum contacts,’’ which in turn

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brings it within the power of the state to reach out to ob-

tain service in the manner provided by the Florida stat-

ute. The case most nearly similar to this, it seems to us,

is the Florida Supreme Court decision, William F. Stras-

ser Construction Corp. v. Linn, 97 So. 2d 458.

The appellant also relies upon sub-paragraph 3 of Sec-

tion 48.181 (see footnote 1 above), claiming that the trans-

action here amounted to a sale by Moody of 22,500 capital

shares of stock of Empire Life Insurance Company of

America. The appellee dismisses it summarily by stating

that this was not a sale of stock but was a contract for

the purchase of a vessel in return for which payment was

to be made by a transfer of this amount of stock. While

our opinion thus far may make it unnecessary to reach

this second point, we think it appropriate to under-

take to construe this section, since appellant relies with

equal confidence on this section. Neither party cites any

case clearly resolving this issue. However, it is difficult

to see why an agreement to convey the 22,500 shares of

stock does not come within the terminology of paragraph

3 which speaks of selling intangible personal property ‘‘by

any means whatever.’’ In such circumstances, the statute

says that such person ‘‘shall be conclusively presumed to

be operating, conducting, engaging in or carrying on a

business venture in this state.’’

We conclude that on both grounds the nonresident de-

fendant brought himself within the Florida Statute and

was subject to service as provided in Section 48.181.

The judgment is REVERSED and the case is RE-

MANDED to the district court, for further proceedings not

inconsistent with this opinion.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October TERM, 1969

No. 28052

D. C. Docket No. 69-220-Civ-CF

Fiytne Saucers, Inc., a Florida Corporation,

Plaintiff-Arpellant,

versus

SuHeEaRN Moopy, Jz., Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Florida

Before Brown, Chief Judge, TutrrLe and Morean, Circuit

Judges.

Judgment

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

record from the United States District Court for the

Southern District of Florida, and was argued by counsel;

On ConsmpERATION WHEREOF, It is now here ordered and

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

trict Court in this cause be, and the same is hereby, re-

versed; and that this cause be, and the same is hereby

remanded to the said District Court for further proceed-

ings not inconsistent with the opinion of this Court.

It is further ordered that defendant-appellee pay to

plaintiff-appellant, the costs on appeal to be taxed by the

Clerk of this Court.

January 27, 1970

Issued as Mandate:

PERRI