Rosenberg v. Coqui, Inc.

464 So. 2d 701, 10 Fla. L. Weekly 634, 1985 Fla. App. LEXIS 12641
CourtDistrict Court of Appeal of Florida
DecidedMarch 8, 1985
DocketNo. 84-1898
StatusPublished
Cited by1 cases

This text of 464 So. 2d 701 (Rosenberg v. Coqui, 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.

Bluebook
Rosenberg v. Coqui, Inc., 464 So. 2d 701, 10 Fla. L. Weekly 634, 1985 Fla. App. LEXIS 12641 (Fla. Ct. App. 1985).

Opinion

GRIMES, Acting Chief Judge.

This is an appeal from a nonfinal order determining jurisdiction of the person. Fla.R.App.P. 9.130(a)(3)(C)(i).

Coqui, Inc., a Florida corporation, filed an unsworn complaint for damages against Jerry Rosenberg, a Massachusetts resident, in the Circuit Court for Hillsborough County, Florida. Rosenberg attacked personal jurisdiction by filing a motion to dismiss accompanied by his affidavit. At the hearing, only James E. Gramling, a Coqui employee, testified. Considering Graml-ing’s testimony, Rosenberg’s affidavit, and those portions of the complaint which have not been controverted, the following facts may be gleaned.

In June of 1981 Rosenberg answered Co-qui’s advertisement for the position of sales representative. He was interviewed by the vice president of sales, Lloyd Roberts, in Coqui’s New York office. At that time, Rosenberg entered into an oral agreement with Roberts, who was acting as Co-qui’s agent, under which Rosenberg would act as a sales representative for Coqui in the New England states. Rosenberg would be paid by commissions on sales which he generated. He would receive a monthly draw to be credited against his commissions, and if his draw exceeded the commission, he would be obligated to repay the excess to Coqui.

Rosenberg submitted customers’ orders to Coqui’s office in Tampa. If Coqui determined to accept the sales, Coqui would make the deliveries directly to the customers and obtain the payments from them. Rosenberg had no authority to make deliveries of accepted orders or to make collections. Rosenberg attended one Coqui sales meeting in Florida, but all of his supervision was performed by Roberts out of Co-qui’s New York office. Coqui paid Rosenberg by monthly checks mailed from the Tampa office and sent Rosenberg samples from that office.

In the suit Coqui sought to recover for draws in excess of commissions which were said to total $19,436.94 and for $6,394.77 as the value of samples Rosenberg allegedly refused to return. The only fact over which there appeared to be any dispute was whether Rosenberg had agreed to repay any draws in excess of commissions to Coqui in Florida. The complaint alleged that such repayments were to be made to the Tampa office, and Gramling testified that Roberts had advised him of this. However, Rosenberg denied that he was obligated to make any payments to Coqui in Florida.

Coqui asserts jurisdiction over Rosenberg on the basis of the Florida long arm statute, section 48.193(l)(g), Florida Statutes (1983), which reads:

48.193 Acts subjecting persons to jurisdiction of courts of state.—
(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 that person 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:
(g) Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.

In view of the hearsay aspect of Graml-ing’s testimony, we doubt that Coqui proved that Rosenberg agreed to repay the excess of his draws over commissions to Coqui in Florida. However, Coqui also relies on our opinion in Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla. 2d DCA 1977), in which we upheld in personam jurisdiction under section 48.193(l)(g) on the premise that where there is an express promise to pay and no place of payment is stipulated, the debtor must seek the creditor and the cause of action accrued where [703]*703the default occurred. Therefore, even though there were additional facts in Ma-dax which supported Florida jurisdiction, it would appear that Coqui has technically alleged a breach of contract in Florida sufficient to acquire jurisdiction under section 48.193(l)(g).

However, unlike Madax in which constitutional issues were not addressed, this case also involves the question of whether Rosenberg had sufficient minimum contacts with the State of Florida as to constitutionally obtain personal jurisdiction over him. But see Engineered Storage Systems, Inc. v. National Partitions & Interiors, Inc., 415 So.2d 114 (Fla. 3d DCA 1982), which seems to hold that once jurisdiction over a party is satisfied under section 48.-193(l)(g), constitutional considerations are no longer relevant.

The most important factor to be considered in cases such as this is whether “the defendant’s conduct and connection with the forum ... are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980). The circumstance must be considered from the perspective of the defendant — not from that of the plaintiff. See Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). The factor of reasonable foreseeability is often used to obtain jurisdiction over a nonresident defendant if it “purposely avails itself of the privilege of conducting activities within the forum....” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1242, 2 L.Ed.2d 1283, 1298 (1958).

We find the recent opinion in Burger King Corp. v. Macshara, 724 F.2d 1505 (11th Cir.1984), ayyeal yending sub nom., Burger King Corp. v. Rudzewicz, — U.S. -, 105 S.Ct. 77, 83 L.Ed.2d 25 (1984), to be particularly instructive. In that case Rudzewicz and Macshara, both of whom were Michigan residents, decided to acquire a Burger King restaurant franchise in Michigan. They conducted their negotiations with the Burger King district office in Michigan. However, they ultimately entered into a formal lease agreement with the Burger King Corporation which provided for the lessees to make their rental payments to Burger King’s headquarters in Miami, Florida. In return for the lease rentals, Burger King promised use of the Burger King mark, architectural advice, advertising services, financial counseling and operations consultation. The Michigan district office was administratively responsible for the services to be provided by Burger King, though Macshara attended a Burger King University management course in Florida. When the lessees fell behind in their rental payments, Burger King sued them in the Southern District of Florida for breach of contract and trademark infringement. The lessees unsuccessfully contested personal jurisdiction and, a judgment was entered against them.

On appeal the lessees conceded that their activities fell within the reach of the language of section 48.193(l)(g). Thus, the court observed that the case presented the question of whether a Florida court could constitutionally exercise jurisdiction over a nonresident by virtue of his contract with a Florida corporation obligating him to remit payments to Miami. The court first analyzed a number of cases in which constitutional objections to jurisdiction over nonresidents who had made sales in the state had been rejected. The court then said:

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Bluebook (online)
464 So. 2d 701, 10 Fla. L. Weekly 634, 1985 Fla. App. LEXIS 12641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenberg-v-coqui-inc-fladistctapp-1985.