ROBERT B. M. BARTON ET AL., APPELLANTS,
v.
THE KEYES COMPANY, A FLORIDA CORPORATION, APPELLEE
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The court reversed the trial judge's denial of a motion to dismiss by non-resident defendants, holding that Florida's new service of process statutes (effective July 1, 1973) could not be applied retroactively to a cause of action that accrued before their effective date.
The court held that the statutes may not be applied retroactively to causes of action that accrued prior to their effective date. The trial judge erred in denying the motion to dismiss because he applied the new statutes retroactively to a claim arising before July 1, 1973.
[1] A statute providing for substituted service of process on non-residents may not be applied retroactively to causes of action that accrued prior to the statute's effective…
[2] A cause of action accrues when the plaintiff learns of the breach of contract.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The sections of the statute may not be applied retroactively to causes of action which accrued prior to their effective date.”
Establishes the core legal principle governing the court's decision that service statutes effective July 1, 1973 cannot apply to claims arising before that date.
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Join FLexlaw to unlock all legal intelligenceKeyes Company, a Florida corporation, sued Massachusetts residents Robert B. M. Barton and others for breach of a contract to pay a real estate commis…
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PEARSON, Judge.
Appellants Barton were sued in Florida by appellee Keyes Company in an action claiming breach of a contract to pay a real estate commission. The Bartons are residents of the state of Massachusetts; service of process was attempted pursuant to Fla.Stat. § 48.194. The Bartons moved to dismiss on the grounds that they, as non-residents, (1) were not subject to the process issued and (2) were not served in conformity with the Florida Statutes. The trial judge denied 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 parties the purchasers failed and refused to pay the Ten Thousand ($10,000.00) Dollars’ commission due to THE KEYS COMPANY.”
An amendment to the complaint was filed after the date of attempted service and after the order appealed.1 This amendment alleges that:
“On or about July 9, 1973, the KEYS COMPANY learned for the first time from the purchasers’ attorney that the purchasers refused to pay the brokerage commission . . . ”
Service upon the non-resident Bartons was attempted under Fla.Stat., §§ 48.193 and 48.194, which became effective July 1, 1973. The sections of the statute may not be applied retroactively to causes of action which accrued prior to their effective date. Gordon v. John Deere Company, Fla.1972, 264 So. 2d 419; Robert E. Marx, Inc. v. Scarney, Fla.App.1971, 253 So. 2d 722; Marshall v. Johnson, Fla.App.1974, 301 So. 2d 134.
It is apparent that upon the record as it stood at the time of the trial judge’s order (see footnote 1, supra), the statute was given retroactive application. The order appealed must be reversed upon authority of Marshall v. Johnson, supra. We note that our recent decision in Ratner v. Hensley, Fla.App.1974, 303 So. 2d 41 (opinion filed November 12, 1974) may seem to indicate a holding that all constructive service statutes may be given a retroactive application. To the extent that our opinion in Ratner may be given such an interpretation, we recede therefrom. That appeal was from a summary judgment. The holding in Ratner was that where a South Carolina constructive service statute had been declared unconstitutional and subsequently reenacted, we could not hold, as a matter of law, that the statute was inapplicable to a cause of action arising prior to the reenactment.
Having found error upon the basis of appellant’s first point, we do not consider the other points presented.
Reversed and remanded.
. “Appellate courts do not exist for the purpose of conducting a trial <le novo and it is highly improper for counsel to insert in their briefs matters and things which are not a part of the trial record and which have not been brought to the attention of the trial court for its consideration.” Florida Livestock Bd. v. Hygrade Food Products Corp., Fla.App.1962, 141 So. 2d 6.
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Cited By (11 total)
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Am. Motors Corp. & Jeep Corp. v. Abrahantes, 474 So. 2d 271 (Fla. 3d DCA 1985)…a. 1st DCA 1976); Knaser v. Smith, 323 So. 2d 643 (Fla. 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 n…
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Camacho Enters., Inc. v. Better Constr., Inc., 343 So. 2d 1296 (Fla. 3d DCA 1977)…pellant neither sought an opportunity to be heard on the question, nor objected to the amount awarded in the trial court. This failure to raise the issue below precludes our review of the matter for the first time on appeal. See Barton v. Keyes Co., 305 So. 2d 269 (Fla. 3d DCA 1974). Nevertheless, we are of the opinion that the award was grounded upon competent substantial evidence and should therefore be affirmed. After having carefully reviewed the record, all points in the briefs and arguments of counsel,…
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Hoffmann v. Three Thousand S. Ass'n, Inc., 318 So. 2d 486 (Fla. 4th DCA 1975)…e until July 1, 1973 (see chap. 73-179, Laws of Fla.). 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…
Previewing 3 of 11 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)
- Sanford Ratner v. Willa Mae Hensley, 303 So. 2d 41 (Fla. 3d DCA 1974)
- Fla. Livestock Bd. v. Hygrade Food Prods. Corp., 141 So. 2d 6 (Fla. 1st DCA 1962)
- Marshall v. Johnson, 301 So. 2d 134 (Fla. 1st DCA 1974)
- DAY v. State, 253 So. 2d 722 (Fla. 1st DCA 1971)