Opinion
No. 4D99-3002.
Opinion filed June 14, 2000.
Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert Lance Andrews, Judge; L.T. No. 99-11722-09.
James K. Pedley, Fort Lauderdale, for appellant.
Gary M. Farmer, Jr. of Gillespie, Goldman Kronengold, P.A., Fort Lauderdale, and Deborah Bianchi Tracht of Deborah Bianchi Tracht, P.A., Pompano Beach, for appellee.
We reverse an order denying Appellants' ("Chambers") motion to dismiss for lack of personal jurisdiction.
Appellee (Universal) sued Chambers for breach of contract and for fraud in the inducement in connection with a contract allegedly formed by correspondence and by various communications through a middleman.
Universal contracts with employers, through middlemen/re-sellers, to sell the employers (such as Chambers) gifts to be used as sales incentive awards. Orders for the gifts are placed over the computer or by phone and are received at Universal's place of business in Broward County. The incentive gifts are shipped directly to the out-of-state recipients. Universal claims that it has not been paid for $32,000 worth of awards it shipped. Chambers is a Pennsylvania corporation.
Chambers moved to dismiss, alleging lack of minimum contacts within the state of Florida and the absence of sufficient facts to allege jurisdiction under the long arm statute. Two affidavits of appellant Krokosky (the current owner of Chambers) were filed, stating that: (1) he lives in Pennsylvania, (2) he owns no property in Florida, and (3) he conducts no business in Florida; and that (1) Chambers is a Pennsylvania corporation that sells construction equipment through its offices in Pennsylvania, (2) Chambers has no salesmen in Florida, (3) no equipment has been sold in Florida, (4) it does not maintain an office in Florida, (5) it does not own property in Florida, and (6) it does not maintain any sales agency relationships in Florida. Universal responded by filing the affidavit stating that Chambers solicited business in Florida from Universal.
A hearing was held, but no transcript is available. According to Chambers, no evidence was presented at the hearing, and the decision on the motion to dismiss was made solely on the allegations in the affidavits that were filed by the parties. According to Universal, the trial court asked Barry Tracht, Universal's principal, "at least one question . . . pertaining to the jurisdictional dispute." However, Universal does not contend that the answer to the question involved a disputed fact or that it was relied upon by the trial court in reaching the decision on the motion to dismiss. Affirmance is, therefore, not required underApplegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).
We reverse because under the facts alleged, the purchase of goods by a foreign buyer from a Florida seller, and the subsequent failure to pay for those goods, do not, taken alone, constitute sufficient minimum contacts between the buyer and the state to satisfy due process. See Silver v. Levinson, 648 So.2d 240, 242-43 (Fla. 4th DCA 1994). See also Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989); Bruzzone Roldos v. Americargo Lines, Inc., 698 So.2d 1368, 1370 (Fla. 3d DCA 1997) (purchase of goods from Florida corporation and shipment of those goods from Florida to Ecuador is insufficient minimum contact with the state); Marsh Supermarkets, Inc. v. Queen's Flowers Corp., 696 So.2d 1207, 1209 (Fla. 3d DCA), rev. denied, 705 So.2d 10 (1997) (purchases from Florida vendor and failure to make payments in Florida insufficient to establish minimum contacts with Florida); O'Brien Glass Co. v. Miami Wall Sys., Inc., 645 So.2d 142, 144 (Fla. 3d DCA 1994) (purchaser of goods from Florida manufacturer lacked sufficient minimum contacts with Florida where purchaser did not conduct business in Florida and only contact was that payment for the goods was due in Florida);Alan Richard Textiles, Ltd. v. Vertilux, Inc., 627 So.2d 529, 530 (Fla. 3d DCA 1993) (New York corporation that regularly ordered goods from Florida corporation lacked sufficient minimum contacts with Florida where purchaser did not have presence, or do business, in Florida); Payless Drug Stores Northwest, Inc. v. Innovative Clothing Exch., Inc., 615 So.2d 249, 250 (Fla. 3d DCA 1993) (non-resident buyer that placed two orders in Florida and arranged for payment to be due in Florida did not have sufficient minimum contacts with Florida).
We recognize that Universal alleges that Chambers ordered the goods without the intention to pay. However, we can discern no basis for concluding that such a claim adds anything here in the way of additional contacts.
WARNER, C.J., STONE and POLEN, JJ., concur.