Summary
stating in dicta that the court saw "no constitutional or other legal impediment" to suit against New York partnership in Florida where partnership had both Florida resident partners and out-of-state partners, "as the action . . . clearly arises out of partnership activities performed in this state by the said defendant"
Summary of this case from Goforit Entertainment LLC v. Digimedia.com L.P.Opinion
No. 78-1457.
April 10, 1979.
Appeal from the Circuit Court for Dade County, Milton A. Friedman, J.
Walton, Lantaff, Schroeder Carson and Miller Walton, Miami, for appellant.
Patrick McGrotty, Miami, for appellee.
Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
By this appeal, we are asked to review a trial court order denying a motion to dismiss an action based on the ground of lack of jurisdiction over the person as to the defendant Touche Ross Co., a New York partnership, which has both Florida resident partners and out-of-state partners. We have jurisdiction to review this non-final order. Fla.R.App.P. 9.130(a)(3)(C)(i).
In our view, the defendant Touche Ross Co. was not properly served in this cause under Section 48.061(1), Florida Statutes (1977), because the Florida resident partners of the defendant herein were served solely as individuals; they were not specifically served as co-partners of all the named members of the defendant New York partnership as required by the above statute in order to properly serve the said partnership. Speight v. Horne, 101 Fla. 101, 133 So. 574 (1931); I. Epstein Bros. v. First National Bank of Tampa, 92 Fla. 796, 110 So. 354 (1926); Hayman v. Weil, 53 Fla. 127, 44 So. 176 (1907).
Beyond that, we see no constitutional or other legal impediment to maintaining this action against the defendant Touche Ross Co. providing it is properly served under Section 48.061(1), Florida Statutes (1977), as the action herein clearly arises out of partnership activities performed in this state by the said defendant. We find no merit in the contentions of the defendant Touche Ross Co. to the contrary. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Heritage Corp. of South Florida v. Apartment Investments, Inc., 285 So.2d 629, 630 (Fla. 3d DCA 1973); Fidelity Casualty Co. of New York v. Homan, 116 So. 444 (Fla. 2d DCA 1959).
The order under review is reversed and the cause remanded to the trial court without prejudice to the plaintiff Canaveral International Corp. to properly re-serve the defendant Touche Ross Co.
Reversed and remanded.
PEARSON, J., concurs in the decision to reverse only.