EDMUND F. O'CONNELL AND EVE O'CONNELL, HUSBAND AND WIFE, APPELLANTS,
v.
WILLIAM A. LOACH, JR., APPELLEE
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A Florida appellate court reversed a trial court's denial of a motion to dismiss in a real estate commission dispute, holding that while the defendant non-residents were conducting real estate business in Florida, the plaintiff failed to allege that the particular transaction at issue arose out of that business activity.
The trial court erred in denying the motion to dismiss. While the allegations regarding defendants' purchase and resale activities were sufficient to show they were conducting a business venture in Florida under Florida's long-arm statute, the complaint failed to allege that the cause of action regarding the specific property arose out of or was connected with those business activities. The complaint should have been dismissed with leave to amend.
“the plaintiff's cause of action must "arise[ing] out of any transaction or operation connected with or incidental to" such business or business venture”
Establishes the requirement under Florida's long-arm statute that the cause of action must be connected to the defendant's business activity in the state
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Join FLexlaw to unlock all legal intelligenceDefendants O'Connell, non-residents of Florida, purchased and resold multiple residential building sites and land in Collier County, Florida between J…
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Appellants, defendants below, bring interlocutory appeal from an order denying their motion to dismiss for lack of jurisdiction and insufficiency of process.
Plaintiff brought an action at law against defendants for a real estate commission. Defendants, non-residents of Florida, were served pursuant to the provisions of §§ 47.16 and 47.30, Fla.Stats., F.S.A. Plaintiff’s amended complaint alleged in part:
“3. That during the times set forth within this complaint the defendants were and are at the present conducting the business of purchasing and reselling real property situated in Collier County, Florida.
"4. That the Official Records of Collier County, Florida, pertinent copies of which are attached hereto as Exhibits ‘A’ through ‘H’ and made a part of this complaint, establish that during the period from January 29, 1965 through February 25, 1966, the defendants purchased nine (9) Collier County residential building sites. That during this same period the defendants sold eight (8) Collier County residential building sites plus the additional sale of a tract of land comprising about forty (40) acres.
“5. That during the period of time in which the defendants were engaging in the real estate transactions set forth in paragraph four, Count I, the Defendants were the owners of and placed for sale certain property located in Collier County, Florida * * *. [Legal description omitted.]
“6. That by such purchase and resale of Collier County, Florida real property the Defendants are carrying on a business or business venture within the State of Florida as contemplated by Section 47.16, Florida Statute, F.S.A.”
Plaintiff’s amended complaint goes on to allege that plaintiff is seeking a commission on the sale of the property described in Paragraph 5 of the complaint.
Defendants filed a motion to dismiss the cause for lack of jurisdiction and insufficiency of process. They submitted an affidavit to the effect that they bought the property for their future use as a retirement home building site but decided against using the site. The affidavit also alleged that at no time had the subject property been held as a business or business venture. Plaintiff filed no affidavit in support of his allegation as to defendants’ business activities.
The trial court denied defendants’ motion to dismiss, stating that defendants’ actions amounted to a “business or business venture” within the meaning and intent of §§ 47.16 and 47.30, Fla.Stats., F.S.A.
It may well be that the allegations in plaintiff’s complaint as to defendants’ activities described in paragraphs 3 and 4, quoted above, are sufficient, at least for purpose of a motion to dismiss, to show that defendants were “doing business” or conducting a “business venture” within the meaning of §§ 47.16 and 47.30, Fla.Stats., F.S.A. See, Wm. E. Strasser Construction Corp. v. Linn, 97 So.2d 458 (Fla.1957) ; State ex rel. Weber v. Register, 67 So.2d 619 (Fla.1953); Oxley v. Zmistowski, 128 So.2d 186 (D.C.A.Fla.1961). See also Mullenax v. Lighthouse Realty Corp. of Port Charlotte, 402 S.W.2d 437 (Ky.App.1966). Yet the plaintiff’s cause of action must “arise[ing] out of any transaction or operation connected with or incidental to” such business or business venture. § 47.16, Fla.Stats., F.S.A.; James v. Kush, 157 So.2d 203 (D.C.A.Fla.1963). Compare, Toffel v. Baugher, 125 So.2d 321 (D.C.A.Fla.1960).
*702Plaintiff’s complaint alleges, in paragraph S, that “ * * * during the time in which defendants were engaging in the real estate transactions set forth in paragraph four, Count 1 * * * ” they placed the subject property for sale. This does not allege that defendants’ actions described in paragraph 5 were in any way connected with or arose out of the activities described in paragraph 4. This defect is not cured by any other allegations of the complaint, the allegation of paragraph 6 being merely a conclusion of law. Therefore the trial court should have dismissed plaintiff’s complaint with leave to amend.
The order of the trial court denying defendants’ motion to dismiss is reversed, and the cause remanded for the entry of an order dismissing plaintiff’s complaint with leave to amend and other appropriate proceedings.
SHANNON, Acting C. J., and HOB-SON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Chase Manhattan Bank, N.A. v. Banco del Atlantico, 343 So. 2d 936 (Fla. 3d DCA 1977)…omplaint or quashal of the service of process. Elmex Corp. v. Atlantic Federal Savings and Loan Assn. of Ft. Lauderdale, 325 So. 2d 58 (Fla. 4th DCA 1976); Nichols v. Seabreeze Properties, Inc., 302 So. 2d 139 (Fla. 3d DCA 1974); O’Connell v. Loach, 194 So. 2d 700 (Fla. 2d DCA 1967); Lake Erie Chemical Co. v. Stinson, 162 So. 2d 545 (Fla. 2d DCA 1964). See also James v. Kush, 157 So. 2d 203 (Fla. 2d DCA 1963). In the instant case, the plaintiff’s complaint falls woefully short of invoking Section 48.181(1),…
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Lopez v. la Fuente, 343 So. 2d 930 (Fla. 3d DCA 1977)…cess over the non-resident. James v. Kush, 157 So. 2d 203, 205 (Fla.2d DCA 1963). And where a complaint fails to allege sufficient facts to invoke personal jurisdiction over the defendant, the complaint may be properly dismissed. O’Connell v. Loach, 194 So. 2d 700 (Fla.2d DCA 1967). The plaintiffs contend that the defendants are amenable to suit by substituted service of process under Section 48.181(1), Florida Statutes (1975), because the accident in this case happened in an apartment building which the def…1 / 2
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Holiday Inns, Inc. v. Jamison, 353 So. 2d 1269 (Fla. 1st DCA 1978)…transaction or operation connected with or incidental to the defendant’s doing business or conducting a business venture within this state is insufficient and does not support personal jurisdiction over a non-resident defendant. O’Connell v. Loach, 194 So. 2d 700 (Fla. 2d DCA 1967). We doubt that the allegations regarding the advertising and solicitation activities of Enterprises are sufficient to show that it carries on a business or business venture in this state. See Reader’s Digest Ass’n v. State ex rel…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- WM. E. Strasser Constr. Corp. v. Linn, 97 So. 2d 458 (Fla. 1957)
- State ex rel. Weber et ux. v. Register, 67 So. 2d 619 (Fla. 1953)
- John T. Oxley and his wife v. Zmistowski, 128 So. 2d 186 (Fla. 2d DCA 1961)
- Toffel v. Baugher, 125 So. 2d 321 (Fla. 2d DCA 1960)
- James v. Kush, 157 So. 2d 203 (Fla. 2d DCA 1963)