Dinsmore v. Martin Blumenthal Associates, Inc.

314 So. 2d 561, 1975 Fla. LEXIS 3245
CourtSupreme Court of Florida
DecidedMay 21, 1975
Docket45191
StatusPublished
Cited by58 cases

This text of 314 So. 2d 561 (Dinsmore v. Martin Blumenthal Associates, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dinsmore v. Martin Blumenthal Associates, Inc., 314 So. 2d 561, 1975 Fla. LEXIS 3245 (Fla. 1975).

Opinion

314 So.2d 561 (1975)

David F. DINSMORE et al., Petitioners,
v.
MARTIN BLUMENTHAL ASSOCIATES, INC., Respondent.

No. 45191.

Supreme Court of Florida.

May 21, 1975.
Rehearing Denied July 17, 1975.

*563 Dwight Sullivan of McCarthy, Steel, Hector & Davis, Miami, for petitioners.

David Bercuson of Porter, Treister, Donsky & Stewart, Miami, for respondent.

ADKINS, Chief Justice:

Certiorari was granted in this cause to review a decision of the District Court of Appeal, Third District, 289 So.2d 481 (Fla.App. 1974), on the ground of direct conflict with Lyster v. Round, 276 So.2d 186 (Fla.1st DCA 1973); Compuguide Corp. v. Sachs, 259 So.2d 513 (Fla.3d DCA 1972); Hayes v. Greenwald, 149 So.2d 586 (Fla.3d DCA 1963).

Respondent (hereinafter referred to as plaintiff), a Florida corporation, brought suit against petitioners (hereinafter referred to as defendants), all non-residents of Florida, to recover a brokerage commission resulting from an exchange of stock of the D.J. Dinsmore Company, a South Dakota corporation, for stock in Jim Walter Corporation, a Florida corporation. Plaintiff's president allegedly traveled to South Dakota in 1972 to discuss the stock transfer with defendants; the transaction was then closed in Chicago some six months later. On only one occasion did any of the defendants come to Florida for a meeting with officers of Jim Walter Corporation. The instant suit was instituted in Dade County with substitute service of process brought pursuant to the "long-arm statute".

The trial judge dismissed the complaint upon a finding that the defendants did not have the minimal contacts in Florida sufficient to subject them to substitute service. The District Court of Appeal, Third District, reversed relying upon § 48.181, Fla. Stat., which provides:

"48.181 Service on nonresident engaging in business in state
(1) The acceptance by any person or persons, individually, 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 person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals his whereabouts, 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 incidental to the business or business venture may be served. The acceptance of the privilege is signification of the agreement 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.
(2) If a foreign corporation has a resident agent or officer in the state, process shall be served on the resident agent or officer.
(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."

*564 In order to determine whether jurisdiction can be acquired over the nonresident defendants pursuant to Fla. Stat. § 48.191(1), it is necessary to determine whether the individual or corporate defendant, was carrying on a business or business venture in this State. The activities of the person sought to be served pursuant to Fla. Stat. § 48.181(1) must be considered collectively and show a general course of business activity in the State for pecuniary benefit. DeVaney v. Rumsch, 228 So.2d 904 (Fla. 1969). A nonresident defendant, which engages the services of brokers, jobbers, wholesalers or distributors, can be doing business in this State pursuant to Fla. Stat. § 48.181(1) if the nonresident defendant, through brokers, jobbers, wholesalers or distributors was engaged in a course of conduct in Florida for the purpose of realizing a pecuniary benefit. Even if the activities of the defendant were not sufficient to constitute a business or business venture pursuant to Fla. Stat. § 48.181(1), jurisdiction over the person of a defendant can still be acquired under Fla. Stat. § 48.181(3) if such defendant sells, consigns or leases within this State personal property through brokers, jobbers, wholesalers or distributors. If Fla. Stat. § 48.181(3) is complied with, even a single sale, consignment or lease raises a conclusive presumption that the defendant is operating, conducting, engaging in or carrying on a business venture in this State. Thus, a defendant may be carrying on a business venture pursuant to Fla. Stat. § 48.181(3), although that defendant is not carrying on a business or business venture pursuant to Fla. Stat. § 48.181(1). The method of service under Fla. Stat. § 48.181 (3) is identical to that explained under Fla. Stat. § 48.181(1).

Turning now to the applicability of Fla. Stat. § 48.181(1), the plaintiff failed to show that the defendant was conducting a general course of business activity in this State. The mere giving of a listing to a business brokerage firm which does business in Florida by a nonresident to sell stock in a foreign corporation does not indicate a general course of business activity in this State. See, Hayes v. Greenwald, 149 So.2d 586 (Fla.3d DCA 1963). The record does not reflect any acts taken by the plaintiff in this State on behalf of the defendants. We do not hold that plaintiff cannot, by appropriate proof, meet its burden to show applicability of Fla. Stat. § 48.181(1). We merely hold that plaintiff has failed to do so. Upon a proper showing, plaintiff should be afforded a further opportunity to attempt service pursuant to Fla. Stat. § 48.181(1).

Fla. Stat. § 48.181

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Bluebook (online)
314 So. 2d 561, 1975 Fla. LEXIS 3245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dinsmore-v-martin-blumenthal-associates-inc-fla-1975.