Grogan v. Archer

669 So. 2d 289, 1996 WL 64806
CourtDistrict Court of Appeal of Florida
DecidedFebruary 16, 1996
Docket95-1425
StatusPublished
Cited by9 cases

This text of 669 So. 2d 289 (Grogan v. Archer) 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.

Bluebook
Grogan v. Archer, 669 So. 2d 289, 1996 WL 64806 (Fla. Ct. App. 1996).

Opinion

669 So.2d 289 (1996)

David GROGAN and Grogan Trucking, Inc., Appellants,
v.
Nell ARCHER, as Personal Representative of the Estate of Albert Archer, Decedent, Appellee.

No. 95-1425.

District Court of Appeal of Florida, Fifth District.

February 16, 1996.
Rehearing Denied March 13, 1996.

*291 Dennis R. O'Connor and David B. Falstad of Gurney & Handley, P.A., Orlando, for Appellant David Grogan.

Timothy S. Keough and David E. Cauthen of Cauthen, Oldham & Keough, P.A., Tavares, for Appellant Grogan Trucking, Inc.

Marie Tomassi and George E. Nader of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., St. Petersburg, for Appellee.

GOSHORN, Judge.

David Grogan ("Grogan") and Grogan Trucking Company ("Grogan Trucking") appeal the nonfinal order denying their motion to quash service of process and abate for lack of jurisdiction arising out of a wrongful death suit brought against them in Lake County, Florida, by Nell Archer ("Nell") as personal representative of Albert Archer's ("Albert") estate.[1] We reverse.

Nell filed an unsworn complaint alleging that Grogan Trucking, a Georgia corporation that transports poultry to Alabama, Georgia, Kentucky, North Carolina, South Carolina, and Tennessee, negligently replaced and installed a rear drive axle on Albert's truck, and as a result, the vehicle overturned on Florida's turnpike in Lake County, and Albert was killed. Nell contended that Grogan Trucking was subject to jurisdiction in Florida because it conducted business in Florida. As for Grogan, she alleged that he "owned, operated and worked for a company that did business in Florida on a regular basis ... [and he] also did business in Florida on a regular basis."

Grogan and Grogan Trucking filed a motion to quash service of process and abate for lack of jurisdiction. They asserted that Grogan Trucking was not a Florida corporation and that it did not conduct business in Florida. Further, they alleged that Grogan had performed no acts that would subject him to jurisdiction in Florida. To support their motion, Grogan and Grogan Trucking filed Grogan's affidavit which stated:

1. David Grogan at all times material to the allegations of the complaint was acting as an agent and corporate officer of the corporation and was not acting in his individual capacity.
2. At no time relevant to this action has David Grogan in his personal capacity done business in the State of Florida that would subject him to the jurisdiction of the State of Florida to answer and defend against the wrongful death claim of the Plaintiff.
3. David Grogan has not individually or personally processed, serviced or manufactured any product, material or thing that caused injury to the Decedent Albert Archer.
4. David Grogan did not charge individually or personally the Decedent Albert Archer for any product, material or thing that caused the death of the Decedent.
5. David Grogan has not personally operated a business, committed a tortious act or caused injury in Florida.
6. The Defendant David Grogan is not aware of any allegations of negligent conduct asserted against him that were asserted to have occurred outside of his duties as an employee of Grogan Trucking, Inc.

The trial court denied their motion to quash service of process and abate for lack of jurisdiction, and this appeal followed.

*292 When analyzing whether long arm jurisdiction is appropriate, two inquiries must be made. First, the complaint must allege sufficient jurisdictional facts to bring the action within the ambit of section 48.193, Florida Statutes (1993), Florida's long arm statute. Second, assuming the first criteria has been met, the defendant must possess certain minimum contacts with the state so as to justify him being subject to suit in that state. Strickland Ins. Group v. Shewmake, 642 So.2d 1159, 1160-61 (Fla. 5th DCA 1994). These minimum contacts must exist so as to satisfy the "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278, 283 (1940), reh'g denied, 312 U.S. 712, 61 S.Ct. 548, 85 L.Ed. 1143 (1941)).

However, the filing of a motion to dismiss on grounds of lack of personal jurisdiction over the person only raises the legal sufficiency of the pleadings. Wartski v. Sencer, 615 So.2d 794, 796 (Fla. 5th DCA 1993); Elmex Corp. v. Atlantic Fed. Sav. & Loan Ass'n, 325 So.2d 58, 62 (Fla. 1st DCA 1976). A defendant desiring to contest the allegations of the complaint or wanting to raise a contention of lack of minimum contacts must file supporting affidavits. Venetian Salami v. Parthenais, 554 So.2d 499, 502 (Fla.1989). The burden then shifts to the plaintiff to prove, by affidavit, the basis upon which jurisdiction may be obtained. If the essential facts stated in the parties' affidavits are not conflicting, the trial court can resolve the legal issue on the basis of the affidavits. If, however, the essential facts are shown to be in direct conflict, the trial court must hold an evidentiary hearing to resolve all disputed facts essential to determining the jurisdictional issue. Id. at 502-03.

In the present case, Grogan Trucking and Grogan filed a motion to quash service of process and abate for lack of jurisdiction. The defendants attached Grogan's affidavit to their motion that contested the allegations in Nell's unsworn complaint that Grogan was engaged in business in Florida. At that point, the burden shifted to Nell to prove by counter affidavit the basis upon which jurisdiction may have been procured. See Venetian Salami, 554 So.2d at 502. Nell failed to file such affidavit.[2] The only evidence before the trial court on the issue of jurisdiction relating to Grogan, individually, was Grogan's unrebutted affidavit establishing that jurisdiction over him individually was improper. Accordingly, the trial court erred in finding Grogan subject to Florida's jurisdiction. Venetian Salami, supra; see also Jasper v. Zara, 595 So.2d 1075, 1076 (Fla. 2d DCA 1992) (where plaintiff failed to dispute defendant's sworn factual proffers that he did not operate, conduct, engage in or carry on a business or business venture in Florida or have an office or agency there, and that he did not breach a contract in Florida, and that he did not engage in substantial, but only isolated, activity within this state, the trial court erred when it found defendant subject to jurisdiction in Florida).

As for Grogan Trucking, we must analyze whether jurisdiction was proper under section 48.193, Florida's long arm statute, which states in relevant part:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself, and if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
* * * * * *

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Cite This Page — Counsel Stack

Bluebook (online)
669 So. 2d 289, 1996 WL 64806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grogan-v-archer-fladistctapp-1996.