American Buildings Co. v. Energy Sun Power, Inc.

District Court of Appeal of Florida

American Buildings Co. v. Energy Sun Power, Inc.

423 So. 2d 469, 1982 Fla. App. LEXIS 21750

CourtDistrict Court of Appeal of Florida

DecidedDecember 10, 1982

DocketNo. 82-2077

StatusPublished

This text of 423 So. 2d 469 (American Buildings Co. v. Energy Sun Power, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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American Buildings Co. v. Energy Sun Power, Inc., 423 So. 2d 469, 1982 Fla. App. LEXIS 21750 (Fla. Ct. App. 1982).

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Opinion

PER CURIAM.

This is an interlocutory appeal whereby appellant, defendant below, challenges the lower court’s order denying its motion to quash service of process and to dismiss for lack of jurisdiction.

Appellee brought an action for damages against, appellant, a foreign corporation, and two other defendants. Service of process was attempted on appellant by serving an individual, H.K. Smith, whom appellee believed to be appellant’s agent. Appellant filed a motion to quash service of process and to dismiss for lack of jurisdiction. An affidavit of the purported agent, H.K. Smith, was attached to appellant’s motion. Appellant’s motion and Smith’s affidavit both maintained that Smith had never been appellant’s agent and that neither Smith, himself, nor appellant had ever held him out as such. According to the appendix submitted on appeal, there was no rebuttal filed to the motion and affidavit.

We find that in view of the unrebutted affidavit which denied Smith was appellant’s agent, the trial judge erred in denying appellant’s motion to quash and dismiss. Biscayne Athletic Club, Inc. v. Iacono, 367 So.2d 275 (Fla. 3d DCA 1979).

Accordingly, the order appealed is REVERSED.

SCHEB, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.

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PER CURIAM.

This is an interlocutory appeal whereby appellant, defendant below, challenges the lower court’s order denying its motion to quash service of process and to dismiss for lack of jurisdiction.

Appellee brought an action for damages against, appellant, a foreign corporation, and two other defendants. Service of process was attempted on appellant by serving an individual, H.K. Smith, whom appellee believed to be appellant’s agent. Appellant filed a motion to quash service of process and to dismiss for lack of jurisdiction. An affidavit of the purported agent, H.K. Smith, was attached to appellant’s motion. Appellant’s motion and Smith’s affidavit both maintained that Smith had never been appellant’s agent and that neither Smith, himself, nor appellant had ever held him out as such. According to the appendix submitted on appeal, there was no rebuttal filed to the motion and affidavit.

We find that in view of the unrebutted affidavit which denied Smith was appellant’s agent, the trial judge erred in denying appellant’s motion to quash and dismiss. Biscayne Athletic Club, Inc. v. Iacono, 367 So.2d 275 (Fla. 3d DCA 1979).

Accordingly, the order appealed is REVERSED.

SCHEB, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.

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423 So. 2d 469, 1982 Fla. App. LEXIS 21750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-buildings-co-v-energy-sun-power-inc-fladistctapp-1982.

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