JOHN E. MARSHALL ET AL., APPELLANTS,
v.
JAMES KENNETH JOHNSON ET AL., APPELLEES
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The court held that the new long-arm statute, § 48.193, Florida Statutes, could not be applied retroactively to establish jurisdiction over appellants for a cause of action that accrued before the statute's enactment and when appellants no longer owned the property.
[1] A statute providing a new method of service of process on non-residents cannot be applied retroactively when no pre-existing remedy existed due to a lack of prior service…
[2] A long-arm statute that creates a new remedy, rather than furthering a pre-existing one, is generally not applied retrospectively.
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Join FLexlaw to unlock all legal intelligenceAppellee sued appellants, California residents, for an accident on land they previously owned. Service was attempted under a new long-arm statute enac…
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McCORD, Judge.
This is an interlocutory appeal from an order denying a motion to quash service of process upon appellants Lesch, Hoppe, Stockton and Borden, California residents, under § 48.193, Florida Statues (the long-arm statute). The cause of action alleged in the complaint arose from an accident which occurred on July 18, 1971, on lands owned by appellants. The complaint was filed on June IS, 1972, and at that time service could not be effected on the nonresident appellants. The then existing Florida long-arm statute, § 48.181, Florida Statutes, provided no means for obtaining jurisdiction over the persons of appellants.
On July 14, 1972, appellants sold the land and subsequently the new long-arm statute, § 48.193, Florida Statutes, was enacted by the legislature and became effective July 1, 1973. It provided that any person, whether or not a citizen or resident of this state, submits himself to the jurisdiction of the courts of this state for any cause of action arising from his owning, using, or possessing any real property within this state. Appellee then served the California residents (appellants) under the new long-arm statute and the trial court denied appel lant’s motion to quash, ruling that the new statute was procedural and thus retroactive.
Both appellants and appellees rely upon the Florida Supreme Court’s opinion in Gordon v. John Deere Company, Fla., 264 So. 2d 419 (1972) in support of their respective positions. Gordon dealt with § 48.182, Florida Statutes (the previous long-arm statute). There the Supreme Court had before it a certified question from the United States Court of Appeals, 5th Circuit, as follows:
Whether or not Florida Statutes, Section 48.182 (1970), applies retroactively to allow service under its provisions as to an alleged wrongful act committed prior to the enactment of the statute.”
The United States District Court, Northern District of Florida, had granted a motion to quash service under said statute and its order was on appeal to the United States Court of Appeal. The suit had been filed in the District Court on July 18, 1969, alleging injuries resulting from an accident occurring on July 19, 1965. The statute under which service was attempted became effective on July 1, 1970, and provided for service on a non-resident committing a wrongful act outside of the state which causes injury within the state.
Appellee argues that the basis of the ruling in Gordon was that the statute was not procedural but was substantive in that it provided for a new remedy where none existed previously; that in the case sub judice there has always been a remedy for negligence of property owners and the statute simply provides a method of effecting service of process upon a non-resident owner. We do not agree that such distinction was the basis for the ruling of the Federal District Court (Gordon v. John Deere Company, D.C.Fla., 320 F.Supp. 293) and the Florida Supreme Court in Gordon. There the Supreme Court in ruling that the statute was not to be applied retroactively quoted with approval from the opinion of the United States District Court in part as follows:
“With reference to the Florida Statutes, it has been held that an amended statute could not be considered procedural and could not operate retrospectively when there was no pre-existing remedy, either because there was no previous method of service provided, or because the methods of service differed. * * * ” (Emphasis supplied)
The quote from the United States District Court goes on to say that the statute “does not operate in furtherance of a pre-exist-ing remedy, but rather operates to create a new remedy. Thus, it falls within the proscription against retrospective operation.”
In the case sub judice as in Gordon, there was no pre-existing remedy against the alleged non-resident wrongdoers because there was no means for the Florida court to obtain jurisdiction over them. There was no pre-existing remedy because there was no previous method of service provided. In addition, in the case sub jud-ice, not only was the statute on which jurisdiction over the non-residenl appellants was dependent enacted after the alleged cause of action accrued, but when it was enacted, appellants no longer owned the property. See Meier v. Grimes, Fla.App. (4th), 202 So. 2d 870 and Heberle v. P.R.O. Liquidating Company, Fla.App. (1st), 186 So. 2d 280.
Reversed.
SPECTOR, Acting C. J., and BOYER, J., concur.
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Am. Motors Corp. & Jeep Corp. v. Abrahantes, 474 So. 2d 271 (Fla. 3d DCA 1985)…4th DCA 1975); Ray Walker & Associates v. Jay Caponey, Inc., 320 So. 2d 13 (Fla. 4th DCA 1975); American Baseball Cap, Inc. v. Duzinski, 308 So. 2d 639 (Fla. 1st DCA 1975); Barton v. Keyes Co., 305 So. 2d 269 (Fla. 3d DCA 1974); Marshall v. Johnson, 301 So. 2d 134 (Fla. 1st DCA 1974); Robert E. Marx, Inc. v. Scarney, 253 So. 2d 722 (Fla. 3d DCA 1971). The result we reach is supported by two well-established rules of construction: first, “[a] statute is not to be given a retrospective effect unless its terms s…
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Barton v. The Keyes Co., 305 So. 2d 269 (Fla. 3d DCA 1974)…enied the motion to dismiss and this interlocutory appeal is from that order. The governing determination on this appeal appears to be whether the cause of action arose after the effective date of the statute. See Marshall v. Johnson, Fla.App.1974, 301 So. 2d 134. This opinion was not available to the trial judge at the time of his decision. The complaint alleges that: “The subject transaction was closed in June of 1973, through Lawyers Title Insurance Corporation and contrary to the understanding of the p…1 / 2
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Hoffmann v. Three Thousand S. Ass'n, Inc., 318 So. 2d 486 (Fla. 4th DCA 1975)….). It has been well settled that the aforementioned statutes may not be applied retroactively to a cause of action that accrued prior to their effective date. Barton v. Keyes Company, Fla.App.1974, 305 So. 2d 269; Marshall v. Johnson, Fla.App.1974, 301 So. 2d 134; Gordon v. John Deere Company, Fla.1972, 264 So. 2d 419; Robert E. Marx, Inc. v. Scarney, Fla.App.1971, 253 So. 2d 722; Meier v. Grimes, Fla.App.1967, 202 So. 2d 870; Heberle v. P. R. O. Liquidating Company, Fla.App.1966, 186 So. 2d 280. Additional…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Abner Wynn Gordon v. The John Deere Co., 264 So. 2d 419 (Fla. 1972)
- Clement K. Heberle v. P. R. O. Liquidating Co., 186 So. 2d 280 (Fla. 1st DCA 1966)
- Meier v. Grimes, 202 So. 2d 870 (Fla. 4th DCA 1967)