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Capital One Financial Corp. v. Miller

District Court of Appeal of Florida, Second District
Apr 24, 1998
709 So. 2d 639 (Fla. Dist. Ct. App. 1998)

Summary

finding no personal jurisdiction over parent where plaintiff failed to file affidavit in support of jurisdiction

Summary of this case from Meterlogic, Inc. v. Copier Solutions, Inc.

Opinion

No. 97-04230

Opinion filed April 24, 1998.

Appeal from nonfinal order of the Circuit Court for Pasco County; W. Lowell Bray, Jr., Judge.

Hywel Leonard and D. Matthew Allen of Carlton, Fields, Ward, Emmanuel, Smith Cutler, P.A., Tampa, for Appellant.

Charles E. Lykes, Jr., Clearwater, for Appellee.


A corporation foreign to Florida challenges an order denying its motion to dismiss for lack of personal jurisdiction. We reverse.

For a determination of this matter, there is an unsworn complaint and an affidavit in support of the appellant's motion to dismiss. The complaint alleges breach of a 1995 contract by Signet Bank/Virginia. It names Signet Bank/Virginia and the appellant as defendants. The appellee has filed nothing more than the unsworn complaint. The affiant is Frank G. LaPrade, III, the assistant general counsel for the appellant. The allegations in the LaPrade affidavit are that the appellant is a holding company only and conducts no business; that it owns all of the stock (except directors' qualifying shares) of Capital One Bank, which bought "substantially all" of the assets and liabilities of Signet Bank/Virginia in 1994.

Capital One Bank apparently does business in Florida. However, the presence of a subsidiary corporation within Florida is not enough, without more, to subject a non-Florida parent corporation to long-arm jurisdiction within Florida. See Flight Int'l Aviation Training Ctr. v. Rivera, 651 So.2d 1265 (Fla. 1st DCA 1995).

The rule to be applied here is the rule stated inVenetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989). In that case the supreme court said:

A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.

Id. at 502.

As we have pointed out, the appellee filed no affidavit in opposition to the affidavit submitted by the appellant. A plaintiff may be excused from the requirement of filing an opposing affidavit only "when the nonresident defendant's affidavit does not sufficiently refute the jurisdictional allegations." See Lampe v. Hoyne, 652 So.2d 424, 426 (Fla. 2d DCA 1995). Otherwise, the facts submitted in the sworn affidavits must be taken as true; and the complaint should be dismissed. See Williamsburg Vacations, Inc. v. Lee, 664 So.2d 1044 (Fla. 2d DCA 1995). The appellant's affidavit was adequate. The appellee filed no opposing affidavit and his complaint is unsworn. Therefore, the trial court erred in denying the motion of the appellant to dismiss for lack of personal jurisdiction.

Reversed.

FRANK, A.C.J., and QUINCE, J., Concur.


Summaries of

Capital One Financial Corp. v. Miller

District Court of Appeal of Florida, Second District
Apr 24, 1998
709 So. 2d 639 (Fla. Dist. Ct. App. 1998)

finding no personal jurisdiction over parent where plaintiff failed to file affidavit in support of jurisdiction

Summary of this case from Meterlogic, Inc. v. Copier Solutions, Inc.

finding no personal jurisdiction over parent where plaintiff failed to file affidavit in support of jurisdiction

Summary of this case from Meterlogic, Inc. v. Copier Solutions, Inc.

finding no personal jurisdiction over parent where plaintiff failed to file affidavit in support of jurisdiction

Summary of this case from Meterlogic, Inc. v. Copier Solutions, Inc.

finding foreign holding company's ownership of subsidiary within the state insufficient to satisfy the long-arm statute

Summary of this case from Resource Healthcare of America, Inc. v. McKinney

noting that the facts in the defendant's sworn affidavit are to be taken as true in determining whether the burden shifts to the plaintiff to prove jurisdiction

Summary of this case from Hilltopper Holding Corp. v. Estate of Cutchin ex rel. Engle
Case details for

Capital One Financial Corp. v. Miller

Case Details

Full title:CAPITAL ONE FINANCIAL CORPORATION, Appellant, v. LARRY C. MILLER, Appellee

Court:District Court of Appeal of Florida, Second District

Date published: Apr 24, 1998

Citations

709 So. 2d 639 (Fla. Dist. Ct. App. 1998)

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