Seale v. Black Industries, Inc. 650 So. 2d 1121

GRIFFIN, Judge.

We affirm the appealed order of dismissal based on lack of in personam jurisdiction. Specifically, we observe that Seale is not entitled to an evidentiary hearing.

The relevant pleading, an unsworn “Amended Counterclaim and Crossclaim,” which attempted to add Mathewson and Guardian as parties to the lawsuit, is lacking in any jurisdictional allegation. Seale acknowledges in his brief that the court is required to conduct a hearing only if the party seeking dismissal tenders proof by affidavit regarding the truth of adequately stated jurisdictional allegations. This is because, unless waived, service of such a complaint lacking allegations sufficient to support in personam jurisdiction is void and cannot support a judgment. See e.g., Pluess-Staufer Industries, Inc. v. Rollason Engineering & *1122Mfg., Inc., 597 So.2d 957 (Fla. 5th DCA), review denied, 606 So.2d 1166 (Fla.1992); Plummer v. Hoover, 519 So.2d 1158 (Fla. 5th DCA 1988).

Seale claims that the factual allegations pleaded under the various theories of liability are sufficient to establish a basis for jurisdiction under section 48.193(l)(b) (commission of a tort in Florida) or 48.193(l)(g) (breach of a contract in Florida). As to Mathewson, the allegations are that he “orchestrated” Black Industries’ false and untrue complaint against Seale and “other improper and fraudulent actions” of Black Industries, including the creation and use of a forged resignation of Seale. As to Guardian, it is alleged that “together with Mathewson, Guardian orchestrated” the seizure of Seale’s vehicles.

These allegations are not sufficient to state a cause of action for any cognizable tort, much less one that these counterdefendants committed in Florida. Even the count for fraud is not based on any claim that Seale was fraudulently induced by Mathewson’s communications to Seale in Florida, seeking to merge Tristar and Black Industries and urging Seale to accept the position of Chairman of the Board of Black Industries. These are the communications contained in Seale’s affidavit but Seale’s fraud claim is that he was fraudulently induced to resign in exchange for compensation never intended to be paid. Nothing in the complaint even indicates where these allegedly fraudulent acts occurred. As to breach of contract, there is nothing anywhere in the complaint to suggest that either Mathewson or Guardian had any contractual relationship with Seale, much less that there was a breach of a duty required to be performed by them in Florida.

The affidavits of Mathewson filed for Guardian and for himself do allege that they have not conducted any business or business venture in Florida. “Conducting business” in Florida is not the basis of Seale’s jurisdictional claim, however, and even if it were, the allegations contained in Seale’s affidavit are not sufficient.

AFFIRMED.

DAUKSCH, J., concurs.

GOSHORN, J., concurs in part, dissents in part, with opinion.

GOSHORN, Judge,

concurring in part and dissenting in part.

I agree with the majority that the trial court correctly quashed service of process as to Aubrey Rigsbee and Martin O’Neill for lack. of personal jurisdiction. However, I would hold that the lower court erred in failing to conduct an evidentiary hearing on that issue with regard to John Mathewson and Guardian Bank and Trust, Ltd. because appellant’s counter-affidavit, filed in response to those appellees’ affidavits contesting in personam jurisdiction, creates a material . conflict requiring such a hearing. See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989); John Posey Corp. v. R.J.T. Eng’g, Inc., 617 So.2d 441, 443-4 (Fla. 5th DCA 1993) (where plaintiffs and defendant’s affidavits directly conflicted on whether third party was an agent for the defendant and on the extent of defendant’s action in soliciting business in Florida, remand was necessary to determine whether there were sufficient minimum contacts to exercise jurisdiction over defendant). I also believe Seale’s (second) amended counterclaim and crossclaim provided sufficient jurisdictional allegations. Accordingly, I would affirm in part, reverse in part, and remand this case to the lower court for it to conduct an evidentiary hearing pursuant to Venetian Salami, supra.