Florida District Courts of Appeal, 1979

Colorado Central Credit Union v. Winters Government Securities Corp.

Colorado Central Credit Union v. Winters Government Securities Corp.
Florida District Courts of Appeal · Decided October 3, 1979 · Cross, Dauksch, Downey, James, Spencer
376 So. 2d 25; 1979 Fla. App. LEXIS 15564 (Southern Reporter, Second Series)

Colorado Central Credit Union v. Winters Government Securities Corp.

Opinion of the Court

PER CURIAM.

Appellants seek review by interlocutory appeal of an order of the trial court denying their motion to dismiss for lack of jurisdiction over the person.

Appellee, a Florida corporation engaged as a registered dealer in government securities, sued appellants in four counts for a) breach of express oral contracts, b) breach of implied warranty of authority, c) common law fraud and d) violation of the Florida Securities law. Service of process was obtained under the Florida Long Arm Statute, Section 48.194, Florida Statutes (1977). Motions to dismiss, supported by affidavits asserting lack of jurisdiction over the person, were denied and this appeal ensued. We affirm in part and reverse in part.

Appellee sued both the Colorado Central Credit Union and its treasurer, Clarence Cherry. We find the record supports the trial court’s order finding jurisdiction over the credit union upon authority of Bank of Wessington v. Winters Government Securities Corporation, 361 So.2d 757 (Fla. 4th DCA 1978), and Citizens State Bank v. Winters Government Securities Corporation, 361 So.2d 760 (Fla. 4th DCA 1978), two cases decided by this court on very similar facts.

However, we reverse the trial court’s order as regards Clarence Cherry. The affidavit filed by Cherry to demonstrate lack of jurisdiction is adequate to defeat the claim of jurisdiction over him alleged in the complaint. That affidavit, as regards jurisdiction over Cherry, is not countered by the affidavits filed by appel-lee, Winters. Thus, under the procedure set forth in Elmex Corp. v. Atlantic Federal Savings & Loan Ass’n., 325 So.2d 58 (Fla. 4th DCA 1976), Cherry was entitled to dismissal of the cause as to him.

*26The order appealed from is affirmed as to Colorado Central Credit Union and reversed as to Clarence Cherry and the cause is remanded to the trial court with instructions to grant Cherry’s motion to dismiss and for further proceedings as to Colorado Central Credit Union.

Affirmed in part; reversed in part, with directions.

DOWNEY, C. J., and CROSS, SPENCER C., and DAUKSCH, JAMES C., Associate Judges, concur.

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