Petition for Writ of Certiorari — Nichols v. Paulucci

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NOQFRIGE-OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

J.D. NICHOLS and NTS CoRPORATION,

Petitioners,

»,

JENO PAULUCCI and SILVER LAKEs I, INC.,

individually and d/b/a PR PARTNERS,

Respondents.

Petition for Writ of Certiorari to the

District Court of Appeal of Florida

Fifth District

PETITION FOR WRIT OF CERTIORARI

RICHARD F.. WALL

(Counsel of Record)

TopD K. NORMAN

HARTLEY & WALL

Suite 2810, Sun Bank Tower

200 S. Orange Avenue

Post Office Box 2168

Orlando, Florida 32802

(407) 422-7992

October 1995 Counsel for Petitioners

WILSON - EPzs PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

QUESTIONS PRESENTED FOR REVIEW

Whether federal due process permits a state to exercise

general jurisdiction over a nonresident general partner of

one or more limited partnerships with substantial business

activities in the state where the claims against the non-

resident are wholly unrelated to the limited partnerships.

Whether the Florida courts’ application of Florida’s

general jurisdiction statute to nonresidents has diverged

from and conflicts with this Court’s decisions that federal

due process requires a nonresident defendant to have a de

facto place of business in the forum state for that state

to exercise general jurisdiction over the nonresident.

(i)

ii

RULE 29.6 STATEMENT

Pursuant to Rule 29.6 of the Rules of this Court, peti-

tioners NTS Corporation and J.D. Nichols state that NTS

Corporation has no parent companies nor nonwholly

owned subsidiaries. The caption of the case in this Court

contains the names of all parties which were before the

District Court of Appeal of Florida, Fifth District.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW

RULE 29.6 STATEMENT ii

TABLE OF AUTHORITIES iv

OPINIONS BELOW |

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED 2

STATEMENT OF THE CASE 2

REASONS FOR GRANTING THE PETITION 4

l. A STATE’S EXERCISE OF GENERAL

JURISDICTION OVER A NONRESIDENT

GENERAL PARTNER OF ONE OR MORE

LIMITED PARTNERSHIPS BASED ON

THOSE PARTNERSHIPS’ ACTIVITIES IN

THE STATE IS A FAR-REACHING BUT UN-

RESOLVED ISSUE OF FEDERAL DUE

PROCESS 4

If. FLORIDA COURTS IN FINDING GENERAL

JURISDICTION UNDER THE STATE’S

LONG-ARM STATUTE HAVE DIVERGED

FROM AND CONFLICT WITH THIS COURT’S

DECISIONS THAT DUE PROCESS RE-

QUIRES A NONRESIDENT DEFENDANT

HAVE A DE FACTO PLACE OF BUSINESS

IN THE FORUM STATE ; 7

CONCLUSION ....... 13

RR ee Ta TT la

iad

iv

TABLE OF AUTHORITIES

Cases Page

Applewhite v. Metra Aviation, Inc., 875 F.2d 491

SR ERE SETS TF 11,12

Gates Learjet Corp. v. Jensen, 743 F.2d 1825 (9th

+ | TCR eck aie ete ae 10

Green v. Chicago, Burlington, & Quincy Railway

Cahn ae ee Se CIE wccdenteean oa 13

Hanna v. Plumer, 380 U.S. 460 (1965) ...00.0 6

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

Ee ie Se IE sacincivctrioctainndterindiciitmencn sd 8,9, 11,138

International Harvester Co. v. Kentucky, 234 U.S.

Lj | | eer Te er aa 9

International Shoe Co. v. State of Washington, 326

tS Rt | RR ae bk a eRe a *

Keeton v. Hustler Magazine, Inc., 465 U.S. 770

CGD sik cisseictndintecsblaseinttoitadviedaicttadidelcalededeedie 6, 7, 8

Kelly v. State of Florida, 597 So. 2d 900 (Fla. 3d

ee er ee ee ee 7

Layne & Bowler Corporation v. Western Well

Works, Inc., 261 U.S. 887 (1928) ......................... 5

Levinson v. Brosche, 578 So. 2d 477 (Fla. 4th

a Ef Pr ee SOU RNR ny veneer nee eS 7

Nichols v. G.D. Searle & Co., 991 F.2d 1195 (4th

Es III siaconictsccotactaniskacausciinambandicomieaaaiackaiiacniniiaanciaias 10

Perkins v. Benyuet Consolidated Mining Co., 342

SF NE GRUIIED vce hcncccesndniciosacksbsebnucsaceutuapaiiettinicetl 8,9

Prentice v. Prentice Colour, Inc., 779 F.Supp. 578

§ 3 ES | Gen cen erm ERR See 5

Provident National Bank v. California Federal Sav-

ings & Loan Association, 819 F.2d 434 (3rd Cir.

SOD icin tdacCiecetibicin ctdachek austin cletenile ncn abda atl 9

Rice v. Sioux City Memorial Park Cemetery, Inc.,

gk OP) ee PRR ESL eae 6

Rosenberg Bros. & Co. v. Curtis Brown Co., 260

Wy ee SE scceraccciccctaongeeia heron e 9

St. Louis Southwestern Railway Co. of Texas v.

Alexander, 227 U.S. 218 (1918) ........................... 9

Seymour v. Parke, Davis & Co., 423 F.2d 584 (1st

BURR a Ea, PRN Steen aed 10

Vv

TABLE OF AUTHORITIES—Continued

Page

United Electrical, Radio and Machine Workers of

America v. 163 Pleasant Street Corp., 960 F.2d

1080 (1st Cir. 1992)... 1!

Universal Carribean Establishment v. Bard, 543

So. 2d 447 (Fla. 4th DCA 1989) . Nie Dict 13

Wilson v. Belin, 20 F.3d 644 (5th Cir. 1994) 10

World-Wide Volkswagon Corp. v. Woodson, 444

See I IO ce Be 5, 6

Statute

§ 48.193, Florida Statutes (1991) ..... 2, 3,13

Miscellaneous

Timothy D. Wheeler, Partnership Returns, 1992,

Statistics of Income Bulletin, Fall 1994 at 75 5

In THE |

Supreme Court of the Anited States

OCTOBER TERM, 1995

No.

J.D. NICHOLS and NTS CorporaTION,

Petitioners,

V.

JENO PAULUCCI and SiLverR Lakes I, INC.,

individually and d/b/a PR PARTNERS,

Respondents.

Petition for Writ of Certiorari to the

District Court of Appeal of Florida

Fifth District

PETITION FOR WRIT OF CERTIORARI

NTS Corporation (“NTS”) and J.D. Nichols

(“NICHOLS”) respectfully petition for a writ of cer-

tiorari to review the judgment of the District Court of

Appeal of Florida, Fifth District, in this case.

OPINIONS BELOW

The Opinion of the District Court of Appeal of Florida,

Fifth District (la-9a)* is reported at 652 So. 2d 389.

The decision of the Circuit Court of the Ninth Judicial

Circuit, in and for Seminole County, Florida (10a) is

unreported. The decision of the Supreme Court of

Florida (11a) has not yet been reported.

* References to Petitioners’ Appendix are indicated in paren-

theses by the appropriate page number followed by a.

ia i ile |

2

JURISDICTION

The judgment of the District Court of Appeal of Flor-

ida, Fifth District, was issued on February 10, 1995.

Timely motions for rehearing, for rehearing en banc, and

for certification were denied on April 4, 1995. The Su-

preme Court of Florida denied discretionary review of the

district court’s judgment on July 31, 1995. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Amendment XIV, Section 1, United States Constitu-

tion:

All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State where-

in they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny any person within

its jurisdiction the equal protection of laws.

Florida Statutes, § 48.193(2) (1991):

A defendant who is engaged in substantial and not

isolated activity within this state, whether such ac-

tivity is wholly interstate, intrastate, or otherwise, is

subject to the jurisdiction of the courts of this state,

whether or not the claim arises from that activity.

STATEMENT OF THE CASE

Respondents, JENO PAULUCCI and SILVER LAKES

I, INC., individually and d/b/a PR PARTNERS (collec- :

tively “PR PARTNERS”) sued NICHOLS, NTS, and

others for a variety of claims related to the development

of real property in Florida under a joint venture agree-

ment between Orlando Lake Forest, Inc., and PR PART-

NERS. (2a-3a) In the trial court, PR PARTNERS as-

3

serted specific and general long-arm jurisdiction over

NICHOLS and NTS as nonresidents under Sections

48.193(1) and (2), Florida Statutes (1991). (3a)

NICHOLS and NTS moved to challenge the assertion of

both specific and general jurisdiction over them as non-

residents denying any acts placing them within the scope

of Florida’s long-arm statute and affirmatively alleging

lack of contacts with Florida sufficient to satisfy federal

Due Process. (12a-14a) After an evidentiary hearing,

the trial court denied the motion challenging jurisdiction

without making any findings of fact or conclusions of

law. (la, 10a)

NICHOLS and NTS took a non-final appeal of the

trial court’s order to the district court pursuant to Florida

Rule of Appellate Procedure 9.130(a)(3)(C)(i).

(la, n.l1) On appeal PR PARTNERS conceded that

NICHOLS and NTS were not subject to specific personal

jurisdiction under Section 48.193(1) but urged gen-

eral jurisdiction under Section 48.193(2) based on

NICHOLS’s and NTS’s contacts with Florida. (3a, n.2)

The district court affirmed the trial court’s exercise of

general personal jurisdiction by construing the “continu-

ous and systematic general business contacts” requirement

of federal constitutional due process as coextensive with

the “substantial and not isolated” language of Section

48.193(2) and determinative of general jurisdiction over

NICHOLS and NTS. (3a-4a)

General jurisdiction over NICHOLS was based pri-

marily on the activities of several limited partnerships

which did business in the State of Florida of which

NICHOLS was a general partner. (4a-6a) His status as

a general partner of these limited partrerships and the

activities of those limited partnerships were unrelated to

PR PARTNERS’ claims against him. While the district

court rejected the assertion that NICHOLS could be sub-

ject to general jurisdiction solely on the basis of his status

as general partner, the district court attributed to him

Se ee ee ee

4

the activities of these limited partnerships. (5Sa-6a)

NICHOLS also spent two days per year in Florida on

business, executed a guarantee payable in Indiana for

the mortgage on the joint venture’s real property, and

had previously owned a vacation home in Florida which

he sold prior to the commencement of the lawsuit, all of

which the court conceded were insufficient to confer gen-

eral jurisdiction when taken alone. (6a)

General jurisdiction over NTS was based on services

NTS provided for affiliated companies in Florida, com-

mon officers and directors between NTS and some of

these affiliates, control which NTS exercised in overseeing

these affiliates, and NTS’s guarantee payable in Indiana

of the joint venture’s mortgage. (8a) All of the activities

NTS was attributed with by the district court were the

provision of assistance to affiliates in Florida. (8a)

The Supreme Court of Florida declined to review this

decision. (lla)

REASONS FOR GRANTING THE PETITION

I. A STATE’S EXERCISE OF GENERAL JURISDIC-

TION OVER A NONRESIDENT GENERAL PART-

NER OF ONE OR MORE LIMITED PARTNERSHIPS

BASED ON THOSE PARTNERSHIPS’ ACTIVITIES

IN THE STATE IS A FAR-REACHING BUT UNRE-

SOLVED ISSUE OF FEDERAL DUE PROCESS

The first issue is whether, solely on the basis of the

activities of one or more limited partnerships in a state,

a nonresident general partner of those partnerships is sub-

ject to general jurisdiction in that state for claims wholly

unrelated to the limited partnerships’ activities. The only

significant contact NICHOLS has with Florida is that he

is a general partner of limited partnerships which do busi-

ness in the state of Florida. The business of these limited

partnerships is entirely unrelated to the claims asserted

by PR PARTNERS against NICHOLS. Nevertheless, the

district court attributed the activities of those partnerships

5

to NICHOLS to support general jurisdiction over him for

these unrelated claims. This ruling subjects a nonresident

general partner, without more, to general personal juris-

diction in any state in which one or more of his limited

partnerships did sufficient business to subj.ct itself to per-

sonal jurisdiction.

The Court should review this issue as one of public

importance, not merely importance to the parties involved

in this litigation. Layne & Bowler Corporation v. West-

ern Well Works, Inc., 261 U.S. 387, 393 (1923). Lim-

ited partnerships are a common business form in today’s

economy with 270,748 limited partnerships comprised of

11,313,483 partners existing in the United States in 1992.

Timothy D. Wheeler, Partnership Returns, 1992, Statis-

tics of Income Bulletin, Fall 1994 at 75, 77. Where

general partners of these limited partnerships can be

haled into an out-of-state court to defend lawsuits unre-

lated to the business of the limited partnerships is a

matter which concerns a large segment of the business

population and affects the way business is structured

throughout the United States.

The Due Process Clause limits a state’s ability to force

a nonresident defendant to defend a lawsuit and ensures

that the different states recognize each others’ status as

coequal sovereigns in the federal system. Wor/d-Wide

Volkswagon Corp. v. Woodson, 444 U.S. 286, 291-292

(1980). Even though this is an important Constitutional

principle, in the view of at least one federal court there

is no established, systematic method to determine the

extent to which a state can exercise general jurisdiction

over nonresidents. Prentice v. Prentice Colour, Inc., 779

F. Supp. 578, 583 (M.D. Fla. 1991) Moreover, no

decision of this Court or any other court appears to

decide whether the activities of one or more limited part-

nerships, sufficient to subject those partnerships to general

jurisdiction, can also be used to subject their nonresident

general partners to general jurisdiction for lawsuits unre-

6

lated to the limited partnerships. This combination of an

important Constitutional right of a large segment of the

business population and the lack of a systematic due

process analysis takes this problem “beyorid the academic

or episodic.” Rice v. Sioux City Memoriai Park Ceme-

tery, Inc., 349 U.S. 70, 74 (1955). Rather, this is a

problem which affects a significant business population

and will create unnecessary, repetitive litigation until a

systematic method of analysis is formulated.

This Court’s resolution also will insure uniformity of

federal and state civil procedure in consonance with con-

stitutional parameters. Hanna v. Plumer, 380 U.S. 460.

463 (1965). Without direction from this Court, federal

and state courts will be left to their own divergent due

process rules.

The district court in this case fashioned just such a

rule. It determined that a nonresident general partner

could be attributed the contacts of one or more limited

partnerships for purposes of general jurisdiction. This

Court should determine if such attribution of contacts

satisfies the due process rights of nonresident general

partners.

The need for this Court’s intervention into this im-

portant issue is further necessitated by the district court’s

break from the essential requirements of general jurisdic-

tion in creating this due process rule of attribution of part-

nership activities. This Court has limited personal juris-

diction to a forum in which a party “should reasonably

anticipate being haled into court.” World-Wide Volks-

wagen Corp., 444 U.S. at 297. It is established that a

party’s acts in a forum which cause it to reasonably antic-

ipate being haled into that forum’s court based on spe-

cific jurisdiction do not necessarily mean that the same

nonresident should reasonably anticipate being haled into

court in that forum under general jurisdiction. Keeton vy.

Hustler Magazine, Inc., 465 U.S. 770, 779-781 (1984),

7

The district court found general jurisdiction over

NICHOLS by relying on decisions involving specific ju-

risdiction over general partners. See Kelly v. State of

Florida, 597 So. 2d 900, 902 (Fla. 3d DCA 1992)

(court holds that “because appellants [partners] were per-

sonally liable for the partnership’s debts, appellants

should have reasonably anticipated being haled into court

in Florida”, thus finding specific jurisdiction); Levinson

v. Brosche, 578 So. 2d 477 (Fla. 4th DCA 1991) (court

finds minimum contacts for general partner because lim-

ited partnership has minimum contacts). This removes

any real distinction between specific and general juris-

diction and violates the principles announced in Keeton.

It allows general jurisdiction over a nonresident simply

because he may be liable for the acts of a limited partner-

ship and could be subject to specific jurisdiction for those

acts. It permits a state to exercise jurisdiction over a non-

resident for any lawsuit as if he was an actual resident.

It obliterates the jurisdictional meaning of residency.

This is an important issue of federal Constitutional law

and civil procedure which requires this Court’s attention

to create uniformity of due process rights for a significant

segment of the business community. The Florida district

court attempted to resolve this issue, but in doing so

substantially departed from reasonable due process re-

quirements for general jurisdiction.

II. FLORIDA COURTS IN FINDING GENERAL JURIS-

DICTION UNDER THE STATE’S LONG-ARM STAT-

UTE HAVE DIVERGED FROM AND CONFLICT

WITH THIS COURT’S DECISIONS THAT DUE

PROCESS REQUIRES A NONRESIDENT DEFEND-

ANT HAVE A DE FACTO PLACE OF BUSINESS

IN THE FORUM STATE

The district court found general jurisdiction over NTS

based primarily on its contacts with affiliates located in

Florida. It found general jurisdiction over NICHOLS

primarily by attributing to NICHOLS the activities in

8

Florida of several limited partnerships fot which he was

a general partner. These contacts do not amount to the

“presence” in Florida required by this Court's applica-

tions of due process to the general jurisdiction problem.

This Court has insisted that a nonresident maintain a

“presence” in a forum to be subject to personal juris-

diction in that forum. Jnternational Shoe Co. v. State of

Washington, 326 U.S. 310, 315-317 (1945). The level

of contacts required for that “presence” increases with

the unrelatedness of those contacts to the cause of action.

Id. Where, as here, activities of a nonresident defendant

unrelated to the current cause of action are urged to

establish a presence sufficient to support general jurisdic-

tion, this Court has required “continuous corporate opera-

tions within a state [which] were thought so substantial

and of such a nature as to justify a suit against it on

causes of action arising from dealings entirely distinct

from those activities.’ Jd. at 318. This has been reduced

to the shorthand statement that the nonresident have

“continuous and systematic general business contacts”

within the forum state. Helicopteros Nacionales De Co-

lombia S.A. v. Hall, 466 U.S. 408, 416 (1984).

The parameters of this presence can best be under- ;

stood by reading the leading case in which this Court

found that the due process requirements for general ju-

risdiction were met. In Perkins v. Benguet Consolidated

Mining Co., 342 U.S. 437 (1952), the corporate defend-

ant had been forced to shut down its operations in the

Philippines and began Conducting the corporation’s ac-

tivities from an office in the forum state. Id. at 447-448.

From the office in the forum state the president and gen-

eral manager of the defendant corporation made key de-

cisions, kept the office files, handled payroll, maintained

corporate bank accounts, and held directors’ meetings.

Id. In short, in Perkins the corporate defendant had

established its de facto principal place of business in the

forum state. Keeton, 465 U.S. at 779 n. 11 (1984). In

9

such an instance “continuous and systematic” presence of

the nonresident in the forum state was found. Perkins,

342 US. at 448.

The Perkins decision is typical of the very few federal

cases in which general jurisdiction has been upheld.

Generally, these cases involve the operation of a signifi-

cant part of the nonresident’s business by agents of the

nonresident in the forum state on a daily basis. Jnterna-

tional Harvester Co. v. Kentucky, 234 U.S. 579, 585-

586 (1914) (court finds general jurisdiction where

agents of nonresident carried out a “continuous course

of business” in forum state); St. Louis Southwestern Rail-

way Co. of Texas v. Alexander, 227 U.S. 218, 228

(1913) (court finds general jurisdiction where agent of

nonresident negotiated and settled claims for it out of

office of nonresident in forum state); Provident National

Bank v. California Federal Savings & Loan Association,

819 F.2d 434, 438 (3rd Cir. 1987) (court finds gen-

eral jurisdiction where “every business day” the nonresi-

dent performed activity “central to the conduct of its

business” in the forum state). The presence this Court

requires can best be described as a de facto place of

business of the nonresident in the forum state to Carry

on the nonresident’s daily business.

This Court has not found presence, for general juris-

diction purposes, in cases where the Court was presented

with numerous contacts, but the nonresident did not run

a daily business in the forum. See Helicopteros, 466 U.S.

at 416-418 (large volume of corporate purchases, train-

ing of corporate employees, and negotiation of corporate

contracts in forum not sufficient to create continuous and

systematic business contacts); Rosenberg Bros. & Co. v.

Curtis Brown Co., 260 U.S. 516, 518 (1923) (no gen-

eral jurisdiction even though there are numerous pur-

chases and visits to forum but no daily business activities).

These decisions have been applied by the lower federal

courts to look for “a community into whose business life

ne

10

the defendant had significantly entered as determined by

the quality, substantiality, continuity, and systematic na-

ture of its activities.” Seymour v. Parke, Davis & Co.,

423 F.2d 584, 587 (Ast Cir. 1970). Federal courts have

uniformly required that these contacts be part of a con-

tinuous chain of activity rather than isolated events.

Wilson vy. Belin, 20 F.3d 644, 650-651 (5th Cir. 1994)

(court holds that numerous “unrelated contacts” were not

sufficient for general jurisdiction because they were spo-

radic); Gates Learjet Corp. v. Jensen, 743 F.2d 1325,

1331 (9th Cir. 1984) (court holds general jurisdiction

does not apply because contacts were “occasional” and

“infrequent”). Even if these contacts are a regular series

of events they must also be substantia’ > warrant the

exercise of general jurisdiction. Nichols ». G.D. Searle

& Co. 991 F.2d 195, 1199 (4th Cir. 1993). Equally

important, in each case in which general jurisdiction was

found the nature of the nonresident’s presence in the

forum involved the business purposes of the entity whose

activities in the forum gave rise to general jurisdiction.

More than just conflicting with this Court’s decisions,

this case shows how far Florida courts have diverged from

the due process principles enunciated by this Court for

general jurisdiction over nonresidents, as followed by other

federal courts. Here all of the activities of NTS used to

support general jurisdiction were the provision of assist-

ance to its Florida affiliates. This assistance included loan

guarantees to nonresident lenders, the operation of cen-

tral accounting for its affiliates, provision of management

and design personnel and services by a subsidiary of NTS,

central payment of expenses, billing affiliates for these

services and expenses, certain common officers and direc-

tors, and monitoring of affiliates. Most of these activities

were actually carried on outside the forum state for affil-

iates within the forum state. The district court held this

was sufficient for general jurisdiction.

Lower federal courts, in applying the due process re-

quirements announced by this Court, routinely require

11

a much higher standard for general jurisdiction when

considering similar activities between affiliated com-

panies. For instance, in United Electrical, Radio and

Machine Workers of America v. 163 Pleasant Street

Corp., 60 F.2d 1080 (ist Cir. 1992), the court was

faced with an assertion of general jurisdiction over a

parent company whose contacts with its subsidiary in the

forum state were very similar to the contacts in the case

below. There the parent negotiated agreements on be-

half of the subsidiary, appointed its directors to the sub-

sidiary’s board of directors, paid the salary of some of the

directors of both entities, oversaw and directed the affil-

iate’s financial affairs, provided financial statements to the

subsidiary’s creditors, and provided the subsidiary with

$8,000,000 in cash, goods and services. /d. at 1083-

1084. The court of appeals found these contacts “mani-

festly insufficient” for general jurisdiction under the

standard this Court defined in Helicopteros. United Elec-

trical, 960 F.2d at 1088. In the case below NTS under-

took similar activities; such as, assurances to creditors,

common board members, and monitoring.

Similarly, in Applewhite v. Metro Aviation, Inc., 875

F.2d 491 (Sth Cir. 1989), the court of appeals took a

fact situation nearly identical to this case and found that

it did not meet the constitutional requirements of gen-

eral jurisdiction. Applewhite involved a holding company

and several affiliates which were all electric companies.

Id. at 496. The issue was one of general jurisdiction over

a nonresident affiliate of the holding company. The con-

tacts with the forum state in that case included the trans-

mission of electricity into the forum state, a centralized

billing system run by the holding company, the sale of

electricity in the forum state, a committee formed by the

affiliates for joint decision making, participation in joint

projects in the forum state, and loaning employees to

affiliates in the forum state. /d. at 496-497. While these

contacts were numerous, the court found that they were

neither of a “continuous and systematic” nature nor

12

showed “purposeful availment” that this Court’s decisions

have required for general jurisdiction. Jd. at 498. As a

result, due process was not satisfied and there was no

general jurisdiction over the nonresident affiliate. /d.

The case below contains many of the same activities by

NTS; that is, common billings of affiliates, loaned em-

ployees, and centralized decision making. Nevertheless,

the district court reached the opposite outcome.

Comparing the activities of NTS against those of the

parent corporation and of the affiliate in the above opin-

ions from the courts of appeals shows that the Florida

state courts apply a due process standard for general ju-

risdiction far below and inconsistent with the standards of

this Court followed by the lower federal courts.

The same considerations apply to NICHOLS. With-

Out attribution of the activities in Florida of the limited

partnerships for which he is a general partner, Florida’s

assertion of general jurisdiction over NICHOLS rests on

his physical presence two days a year in Florida, his guar-

antee executed outside of Florida to an out-of-state

lender, and his former ownership of a Florida vacation

home. These facts are clearly not enough to show that

NICHOLS has a de facto place of business in Florida.

Even with attribution of the limited partnership activities,

the due process requirements for general jurisdiction are

not satisfied. The claims asserted against NICHOLS are

in no way related to the business purposes of the limited

partnerships’ presence in Florida and the actual involve-

ment of NICHOLS in the affairs of those limited partner-

ships is so limited that it cannot meet the test of substan-

tiality and continuity to show that NICHOLS maintains a

de facto place of business in Florida.

It is not merely that the decision in this case is errone-

ous when measured against the due process principles

established by this Court that provides the reason for

reviewing the district court’s decision. More to the point,

this case is typical of the decision of Florida courts which

iim a

13

have interpreted § 48.193(2) beyond the permissible

parameters of general jurisdiction under the Due Process

Clause. Compare Universal Caribbean Establishment vy.

Bard, 543 So. 2d 447 (Fla. 4th DCA 1989) (court

allows general jurisdiction based on solicitation of tours

by defendant’s agent in the forum State) with Green vy.

Chicago, Burlington, & Quincy Railway Co., 205 USS.

530 (1907) (solicitation by an agent of the defendant in

the forum state is not sufficient for personal jurisdiction).

The district court in this case has followed the pattern

of Florida case law, allowing general jurisdiction under a

much lower threshold than that required by the rulings

of this Court. It is this lack of uniformity in the applica-

tion of due process rights which requires correction by

this Court. As the Court has not addressed the due

process requirements for general jurisdiction in the decade

since deciding Helicopteros, it is appropriate to revisit the

issue in the context of this case.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

RICHARD F., WALL

(Counsel of Record)

Topp K. NORMAN

HARTLEY & WALL

Suite 2810, Sun Bank Tower

200 S. Orange Avenue

Post Office Box 2168

Orlando, Florida 32802

(407) 422-7992

October 1995 Counsel for Petitioners

ia lt =

APPENDICES

la

APPENDIX A

IN THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA

FIFTH DISTRICT

JANUARY TERM 1995

Case No. 93-2609

J. D. NICHOLS and NTS CorporaTION,

Appellants,

v.

JENO PAULUccI and SiLveR Lakes, I, INC., a Florida

corporation, individually and d/b/a PR PARTNERS, a

Florida general partnership,

Appellees.

Opinion filed February 10, 1995

Non-Final Appeal from the Circuit Court

for Seminole County,

Robert B. McGregor, Judge.

DIAMANTIS, J.

J. D. Nichols (Nichols) and NTS Corporation (NTS)

appeal the trial court’s non-final order denying their mo-

tion to dismiss for lack of personal jurisdiction.’ After

conducting an evidentiary hearing in accordance with

Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla.

1989), the trial court concluded that it possessed per-

sonal jurisdiction over both Nichols and NTS. We agree

and, thus, affirm the order under review.

1 Appellate review of this order is proper pursuant to rule

9.180 (a) (8) (C) (i) of the Florida Rules of Appellate Procedure.

2a

In August 1992, the appellees, Jeno Paulucci and

Silver Lakes I, Inc., individually and d/b/a PR Partners,

filed a complaint for damages and declaratory relief

against Nichols, NTS, NTS/Florida Residential Proper-

ties, Inc., Orlando Lake Forest, Inc., and Banc One

Mortgage Corporation. The complaint asserted that the

court had personal jurisdiction over all. named defendants

pursuant to Florida’s long-arm statute, section 48.193,

Florida Statutes (1991).

The complaint stated that PR Partners and NTS/

Florida Residential Properties, Inc. (NTS/Residential), a

Florida corporation, entered into a joint venture agree-

ment for the purpose of holding and developing real

property in Seminole County. Pursuant to an amend-

ment to the joint venture agreement, NTS/Residential as-

signed its interest in the joint venture to defendant

Orlando Lake Forest, Inc. (OLF, Inc.), also a Florida

corporation, and the joint venture became known as the

OLF joint venture. The complaint alleged that OLF,

Inc., was the alter ego of NTS, a Kentucky corporation.

Banc One held a mortgage on the OLF joint venture’s

real property, and Paulucci and Nichols both executed

personal guaranties relative thereto in favor of Banc One.

In May 1991, NTS, OLF, Inc., and NTS/Residential sent

a letter to PR Partners offering to purchase its interest

in the OLF joint venture. The complaint alleged that,

once fully executed by all relevant parties, the May 1991

letter became a binding sale contract for PR Partners’

interest in the OLF joint venture.

The complaint asserted counts for an accounting of

the OLF joint venture’s financial affairs (Count Il) and

for dissolution of the OLF joint venture (Count III).

Against NTS, NTS/Residential and OLF, Inc., the com-

plaint asserted a count for breach of the sale contract

(Count I). Against Nichols, NTS/Residential, and OLF,

Inc., the complaint asserted counts for fraudulent mis-

representation (Count IV), for breach of fiduciary duty

3a

(Count V), and for breach of the joint venture agreement

(Count VI). Against Nichols, NTS, and OLF, Inc., the

complaint asserted a count for breach of the loan agree-

ment or subrogation, and/or foreclosure (Count VIII).

Against Banc One, the complaint asserted a count for

breach of guaranty and loan documents (Count VII).

Finally, the complaint asserted a count for declaratory

judgment against all named defendants (Count IX).

In the trial court, the appellees relied upon sections

48.193(1) and (2), Florida Statutes (1991), to support

their contention that the trial court possessed jurisdiction

over Nichols and NTS. On appeal, however, the ap-

pellees rely only upon section 48.193(2).2 In August

1992, when the appellees filed this action, section

48.193(2) provided:

A defendant who is engaged in substantial and not

isolated activity within this state, whether such ac-

tivity is wholly interstate, intrastate, or otherwise, is

subject to the jurisdiction of the courts of this state,

whether or not the claim arises from that activity.

§ 48.193(2), Fla. Stat. (1991).

In construing the requirement of “substantial and not

isolated activity,” Florida courts have harmonized this

language with the constitutional due process requirements

enunciated in Helicopteros Nacionales de Colombia S.A.

v. Hall, 466 U.S. 408, 104 S. Ct. 1868, 80 L. Ed. 2d 404

(1984). See American Overseas Marine Corp. v. Patter-

son, 632 So. 2d 1124, 1128 (Fla. Ist DCA), rev. denied,

641 So. 2d 1346 (Fla. 1994). In Helicopteros, the Su-

preme Court held that “continuous and systematic gen-

eral business contacts” were required before a forum

could exercise general jurisdiction over a nonresident de-

fendant. Helicopteros, 466 U.S. at 416. The Court ex-

? The appellees apparently concede that Nichols and NTS are not

subject to the trial court’s jurisdiction under any of the provisions

of section 48.193(1).

4a

plained that a state exercises “general”, as opposed to

“specific”, jurisdiction over a defendant when the cause

of action does not arise out of, and is not related to, the

defendant’s contacts with the state. Helicopteros, 466

U.S. at 414 n.9. See also White v. Pepsico, Inc., 568

So. 2d 886, 888 n.3 (Fla. 1990). The due process stand-

ard of Helicopteros applies in this case because section

48.193(2) requires no causal connection between a plain-

tiff's claim and the defendant’s contacts with the state.

See American Overseas Marine Corp. v. Patterson, 632

So. 2d at 1127-28.

We shall discuss separately the provisions of section

48.193(2) as applied to Nichols and NTS.

Personal Jurisdiction over Nichols

The record evidence supports the trial court’s ruling

that Nichols’ activities within the state of Florida were

sufficient to subject him to the trial court’s jurisdiction

under section 48.193(2). The undisputed evidence re-

flected that Nichols was a general partner of several

Florida limited partnerships, some of which currently or

formerly did business in the state of Florida. Specifically,

two of the Florida partnerships, NTS/Sabal Office Limited

Partnership and Sabal Point Country Club, Ltd., owned,

respectively, an office building and a country club in

Seminole County. Nichols also was a general partner of

NTS-Properties Plus Associates, Ltd., a Kentucky limited

partnership which was registered to do business in Florida

and which, in turn, was a general partner of NTS-

Properties Plus Ltd., a Florida limited partnership which

owned, developed, and leased commercial properties in

Florida. Additionally, Nichols was a general partner of

NTS-Properties Associates V, Ltd., a Kentucky limited

partnership which, in turn, was a general partner of NTS-

Properties V, a Maryland limited partnership. NTS-

_ Properties V also was registered to do business in Florida,

‘and it owned, developed, and leased commercial proper-

ties in Florida. Finally, Nichols was a general partner of

:

:

§

SST in ss el eit AAMAS ae aR

Sa

NTS-Properties Associates IV, Ltd., a Kentucky limited

partnership which owned an interest in an apartment

complex in Seminole County.

At the hearing conducted on the motion to dismiss,

Nichols testified that he was not actively involved in the

operation or management of the partnerships. According

to Nichols, his involvement was limited to signing docu-

ments. Despite Nichols’ efforts to distance himself from

his partnerships’ activities within the state of Florida, it

was proper for the trial court to consider these activities

in determining that Nichols had continuous and systematic

general business contacts in Florida. Florida courts have

recognized that, because a limited partnership gains its

identity from its general partners, the limited partnership’s

contacts with a particular forum may be attributed to the

general partners. Kelly v. Department of Insurance, 597

So. 2d 900 (Fla. 3d DCA 1992); Levinson v. Brosche,

578 So. 2d 477 (Fla. 4th DCA 1991).° See also Vespe

Contracting Co. v. Anvan Corp., 433 F. Supp. 1226

(E.D. Pa. 1977) (recognizing that same principle applies

where defendant is general partner of limited partnership

% Although we conclude that a limited partnership’s contacts may

be considered in determining whether a nonresident general partner

has engaged in substantial activities within the state, we reject

the appellees’ suggestion that a nonresident’s mere status as a

general partner in a Florida limited partnership necessarily subjects

the nonresident to the general jurisdiction of the courts of this state

under section 48.193(2). In contrast, where the cause of action

arises out of the limited partnership’s active conduct of business in

Florida, the nonresident genera! partner will be subject to the spe-

cific jurisdiction of Florida’s courts under section 48.193(1). See

In re Estate of Vernon, 609 So. 2d 128 (Fla. 4th DCA 1992) ;

Renda v. Peoples Federal Savings & Loan Ass’n, 588 So. 2d 860

(Fla. Int DCA 1988), rev. denied, 542 So. 2d 1834 (Fla. 1989).

This rule does not apply to a limited partner, whose interest in

the limited partnership is more analogous to that of a stockholder

in a corporation, id. at 868, or that of a corporate officer and direc-

tor. Klein v. Mega Trading, Ltd., ex rel. Hochman, 416 So. 2d 866

(Fla. 3d DCA 1982).

6a

which, in turn, is general partner of limited partnership

with contacts with state).

In addition to these partnership activities, Nichols ac-

knowledged at the hearing that he spent an average of

two days per year in Florida in connection with the part-

nerships’ business. Finally, with regard to the subject

matter of this lawsuit, Nichols acknowledged that he

signed a personal guaranty in favor of Banc One relative

to the mortgage which the bank held on the OLF joint

venture’s real property.*

We recognize that, standing alone, any one of Nichols’

contacts with the state of Florida might not constitute

substantial activity within the meaning of section 48.193

(2).° When viewed in its entirety, however, the evidence

presented in this case supports the trial court’s ruling that

it possessed personal jurisdiction over Nichols.*

* Although the evidence at the hearing focused on Nichols’ busi-

ness contacts with the state of Florida, Nichols’ pre-hearing affidavit

also revealed that he formerly owned a vacation home in Palm

Beach County which he occasionally visited and which he sold in

March 1992.

* By itself, ownership of property is insufficient to subject a

nonresident defendant to the jurisdiction of the courts of this state,

unless the cause of action arose out of such ownership. See

48.193(1) (c), Fla. Stat. (1991). Further, the mere execution of

a guaranty generally is insufficient to subject a nonresident defend-

ant to the jurisdiction of a Florida court. See Holton v. Prosperity

Bank, 602 So. 2d 659, 662-68 (Fla. 5th DCA 1992). See also Pleuss-

Staufer Industries v. Rollason Engineering & Manufacturing, Inc.,

635 So. 2d 1070, 1073 n.10 (Fla. 5th DCA 1994). Cf. Hamilton v.

Business Assistance Consortium, Inc., 602 So. 2d 619 (Fla. 83d DCA

1992).

In reaching this conclusion, we did not consider any activities

Nichols performed as an officer or director of the different NTS

corporations, including NTS, NTS/Residential, and OLF, Inc. See

Doe v. Thompson, 620 So. 2d 1004 (Fla. 1998) ( recognizing distinc-

tion between corporate officer acting on behalf of himself and

corporate officer acting on behalf cf his corporation). Accord Eller

v. Allen, 623 So. 2d 545 (Fla. 5th DCA 19938), rev. denied, 634

So. 2d 622 (Fla. 1994).

7a

Personal Jurisdiction over NTS

In Qualley v. International Air Service Co., 595 So. 2d

194 (Fla. 3d DCA), cause dismissed, 605 So. 2d 1265

(Fla. 1992), the court discussed when a nonresident par-

ent corporation is subject to personal jurisdiction in

Florida:

[T]he presence of a subsidiary corporation within

Florida is not enough, without more, to subject a

non-Florida parent corporation to long-arm jurisdic-

tion within this state... . The rule is otherwise

where, for example, the alter ego test can be met... .

or where the non-Florida parent company independ-

ently satisfies the test for jurisdiction under Florida’s

long-arm statutes; . . .

Qualley, 595 So. 2d at 196 (citations omitted).

The evidence in this case fails to support the theory

that NTS is the alter ego of defendants NTS/Residential

or OLF, Inc.,’ because, although the appellees asserted

this theory in their complaint, they failed to claim at the

evidentiary hearing or on appeal that NTS, NTS/Resi-

dential, or OLF, Inc., was formed for an improper pur-

pose. Cf. Woods v. Jorgensen, 522 So. 2d 935, 937 (Fla.

Ist DCA 1988).

Based on the record evidence, however, we conclude

that the trial court properly ruled that it had acquired

personal jurisdiction over NTS under section 48.193(2).

Even if NTS technically was not the parent corporation

of defendants NTS/Residetial or OLF, Inc., through any

ownership interest therein, NTS is subject to the personal

jurisdiction of the courts of this state because of the ex-

tent of NTS’s contacts with the OLF joint venture, as well

as the degree of control NTS exercised over NTS/Resi-

dential and OLF, Inc. See Universal Caribbean Establish-

™See Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114,

1120-21 (Fla. 1984).

iii

8a

ment v. Bard, 543 So. 2d 447 (Fla. 4th DCA 1989).

See also Richard Bertram & Co. v. American Marine,

Ltd., 258 So. 2d 335 (Fla. 3d DCA 1972).

The evidence showed that NTS was engaged in the

following activities in Florida: NTS was a guarantor on

the OLF joint venture’s $13 million load held by Banc

One; NTS’s consolidated accounting system performed

accounting services for defendants NTS/Residential and

OLF, Inc.; under this system. NTS issued checks to cover

expenses related to the OLF joint venture, including travel

expenses and legal fees; NTS then billed the OLF joint

venture for legal fees paid on its behalf; NTS also billed

the OLF joint venture and OLF, Inc., for management

services provided by NTS; NTS’s decorator/architect trav-

eled to Florida and performed services for the OLF joint

venture (for which NTS later billed the joint venture),

as well as for other Florida partnerships; NTS issued in-

voices and purchases orders relative to the OLF joint

venture; NTS was listed as the customer on the Florida

Power & Light account for the OLF joint venture; cor-

respondence relative to the OLF joint venture was ad-

dressed to Paulucci on NTS letterhead; NTS also issued

checks on behalf of Nichols’ partnerships in Florida, and

NTS charged the partnerships for expenses and services

incurred on their behalf; some NTS officers and directors

also were officers and director of NTS/Residential and

OLF, Inc.; NTS’s president and chief operating officer

monitored the developments and projects of OLF, Inc.,

from his office in Louisville on almost a daily basis, and

he visited NTS entities in Florida on a monthly basis;

and Nichols visited NTS entities in Florida on an annual

basis, and he exercised ultimate control over the NTS

entities.

Accordingly, the trial court properly ruled that it had

acquired personal jurisdiction over NTS based on NTS’s

PPLE Sa + Ay te plelvnl shibiat Sabb a

9a

substantial activities within the state of Florida. See

Universal Caribbean, 543 So. 2d at 448. Cf. Qualley v.

International Air Service Co., 595 So. 2d 194 (Fla. 3d

DCA) (California parent company’s mere performance

of accounting and payroll functions for subsidiary doing

business in Miami was insufficient activity to subject par-

ent company to jurisdiction under section 48.193), cause

dismissed, 605 So. 2d 1265 (Fla. 1992).

AFFIRMED.

PETERSON and GRIFFIN, JJ., concur.

® We reject the contention that the trial court erred in conduct-

ing a full Venetian Salami evidentiary hearing at which the court

permitted the appellees to present evidence on the broad jurisdic-

tionai issue of whether NTS’s and Nichols’ activities within the

state of Florida were sufficient to subject them to the trial court’s

jurisdicticn. Nichols and NTS argue that this was error because

the triai court earlier had entered an order limiting the hearing’s

jurisdictional issue to that of whether a general partner who reg-

istered to do business in Florida thereby subjected himself to the

personal jurisdiction of the courts of this state. We conclude that,

by failing to move for a continuance at the hearing, NTS and

Nichols waived the right to claim that they were prejudiced by the

trial court’s ruling admitting the additional evidence. See Batista

v. Waler & Bernstein, P.A., 378 So. 2d 1321 (Fla. 83d DCA 1980).

See also Leviton v. Philly Steak-out, Inc., 583 So. 2d 905 (Fla. 3d

DCA 1988). We also note that NTS’s and Nichols’ claim of proce-

dural prejudice is weakened by their decision on appeal to request

an outright reversal of the trial court’s ruling rather than a remand

for a new evidentiary hearing at which they might present addi-

tional evidence relevant to the dispositive issues in this case.

10a

APPENDIX B

IN THE CIRCUIT COURT

OF THE NINTH JUDICIAL CIRCUIT

IN AND FOR SEMINOLE COUNTY, FLORIDA

Case No. 92-2231-CA-16-K

JENO PAULUCCI, and SitveR Lakes I, INc., a Florida

corporation, individually and d/b/a PR PARTNERS, a

Florida general Partnership,

ray Plaintiffs,

J.D. NicHoLs, NTS CorporaTION, a Kentucky corpora-

tion, NTS/FLORIDA RESIDENTIAL PROPERTIES, INC., a

Florida corporation, ORLANDO LAKE ForEsT, INC., a

Florida corporation and BANC ONE MoriGaGE Cor-

PORATION, a foreign corporation,

Defendants.

ORDER DENYING DEFENDANT-NICHOLS’ AND

DEFENDANT-NTS CORPORATION’s MOTION

TO DISMISS FOR LACK OF JURISDICTION

THIS CAUSE came on for consideration for an evi-

dentiary hearing in accordance with the procedure as set

forth in Venetian Salami v. J. S. Parthenais, 554 So.2d

499 (Fla. 1989), and the Court having heard the argu-

ment of counsel, it is therefore

ORDERED AND ADJUDGED that Defendants’ Mo-

tion to Dismiss for Lack of Personal Jurisdiction is hereby

DENIED.

DONE and ORDERED in Sanford, Seminole County,

Florida, this 4th day of October, 1993.

/s/ Robert B. McGregor

ROBERT B. MCGREGOR

Circuit Judge

lla

APPENDIX C

MONDAY, JULY 31, 1995

SUPREME COURT OF FLORIDA

Case No. 85,663

District Court of Appeal,

Sth District—No. 93-2609

J.D. NICHOLS, et al.,

Petitioners,

Vv.

JENO PAULUCCI, ef al.,

Respondents.

This cause having heretofore been submitted to the

Court on jurisdictional briefs and portions of the record

deemed necessary to reflect jurisdiction under Article V.

Section 3(b), Florida Constitution (1980), and the court

having determined that it should decline to accept juris-

diction, it is ordered that the Petition for Review is denied.

No Motion for Rehearing will be entered by the court.

See Fla. R. App. P. 9.330(d).

GRIMES, C.J.., OVERTON, SHAW, KOGAN and

ANSTEAD, JJ., concur

|

12a

IN THE CIRCUIT COURT

OF THE EIGHTEENTH JUDICIAL CIRCUIT

IN AND FOR SEMINOLE COUNTY, FLORIDA

Case No. 92-2231-CA16K

JENO PaULuccl, and SiLveR Lakes I, INC., a Florida

corporation, individually and d/b/a PR PARTNERS, a

Florida general Partnership,

Plaintiffs,

vs.

J. D. NicHois, NTS CORPORATION, a Kentucky corpora- ;

tion, NTS/FLoripa RESIDENTIAL PROPERTIES, INC., a

Florida corporation, ORLANDO LAKE ForEsT, INC., a

Florida corporation and BANC ONE MORTGAGE Cor-

PORATION, a foreign corporation,

Defendants.

NICHOLS’S AND NTS’S MOTION TO DISMISS

ACTION, TO QUASH PROCESS, AND TO

QUASH SERVICE OF PROCESS

Defendants, J.D. NICHOLS ( “NICHOLS”) and NTS

CORPORATION (“NTS”), move for entry of an Order

dismissing the captioned action against them, quashing

the process issued against them, and quashing service of

Process on them as the Court lacks personal jurisdiction

over them and as grounds therefor would show:

1. Florida Rule of Civil Procedure 1.070(i) requires

at a minimum that a plaintiff must plead the language

of the statute when service of process is to be made under

Statutes authorizing service of process on non-residents.

NICHOLS and NTS are citizens of Kentucky. Plaintiffs

have sought long-arm jurisdiction over them under vari-

ous provisions of Florida Statutes § 48.193(1) without

iii scniaiciciiaiaiiailiie

l3a

pleading that the causes of action asserted against

NICHOLS and NTS arise out of NICHOLS and NTS

doing any of the enumerated acts.

2. There must be personal injury or property damage

to support long-arm jurisdiction under Florida Statutes

§ 48.193(1)(f). Aetna Life & Casualty Company v.

Therm-O-Disc, Inc., 511 So.2d 992 (Fla. 1987). As

Plaintiffs have failed to allege anything other than eco-

nomic loss, this Court lacks long-arm jurisdiction over

NICHOLS and NTS under the authority of that statute.

3. Service of process issued against NICHOLS was

made on Gregory A. Compton as registered agent for

NICHOLS. This is not an authorized means of obtaining

personal service on an individual under Florida law nor

was Mr. Compton authorized to accept service on behalf

of NICHOLS. Florida Statutes §§ 48.031 and 48.194.

4. NICHOLS does not individually operate, conduct,

engage in or carry on a business or business venture in

Florida and does not individually have an office or an

agency in Florida. NICHOLS has not committed any

tortious acts in Florida, either in an individual or repre-

sentative capacity. NICHOLS does not individually own,

use, Or possess any real property within Florida.

NICHOLS has not caused any injury, not to mention

personal injury or property damage, to Plaintiffs in Flor-

ida by any acts or omissions outside Florida. NICHOLS

has never engaged in solicitation or service activities in

Florida and has never processed, serviced, or manufac-

tured products, materials, or things used or consumed in

Florida in the ordinary course of commerce, trade, or use.

NICHOLS was not engaged in substantial and not iso-

lated activity in Florida. There is no basis under Flarida

Statutes § 48.193(1)(a), (b), (c), and (f) and (2)

to establish long-arm jurisdiction over NICHOLS.

NICHOLS does not have the requisite minimum contacts

with Florida required by the Due Process Clause. Vene-

tian Salami Company v. Parthenais, 554 So.2d 499 (Fla.

1989).

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5. NTS is a Kentucky holding company with its only

office in Louisville, Kentucky. NTS does not operate,

conduct, engage in or carry on a business or business

venture in Florida and does not have an office or agency

in Florida. NTS has not committed any tortious acts in

Florida. It does not own, use, or possess any real prop-

erty in Florida. It has not caused any injury, not to men-

tion personal injury or property damage, to Plaintiffs in

Florida by any acts or omissions outside Florida. NTS

has never processed, serviced, or manufactured products,

materials, or things used or consumed in Florida in the

ordinary course of commerce, trade, or use. NTS has not

engaged in substantial and not isolated activity in Florida.

There is no basis under Florida Statutes § 48.193(1)(a),

(b), (c), and (f) and (2) to establish long-arm jurisdic-

tion over NTS. NTS does not have the requisite mini-

mum contacts with Florida required by the Due Process

Clause. Venetian Salami Company v. Parthenais, supra.

I HEREBY CERTIFY that a true and correct copy of

the foregoing has been furnished by Hand Delivery on

this 17th day of September, 1992 to DAVID H. SIM-

MONS, ESQ., 120 S. Orange Avenue, Orlando, Florida

32802.

/s/ Richard F. Wall

RICHARD F. WALL, Eso.

Fla. Bar No. 349518

HARTLEY & WALL

Suite 2810, Sun Bank Tower

200 S. Orange Avenue

Post Office Box 2168

Orlando, Florida 32802

407/422-7992

Counsel for Nichols and NTS

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