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NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
JANUARY TERM, A.D. 2004
GOLDEN STATE INDUSTRIES,
CASE NO. 3D02-2965
TRIBUNAL NO. 99-20522
Opinion filed April 14, 2004.
An Appeal from the Circuit Court for Miami-Dade County,
Ellen L. Leesfield, Judge.
Tobin & Reyes; Bunnell, Woulfe, Kirschbaum, Keller, McIntyre
& Gregoire, for appellant.
Friedman & Friedman, and John Seligman; Lauri Waldman Ross,
Before COPE, SHEVIN*, and RAMIREZ, JJ.
Golden State Industries, Inc. appeals the denial of its motion
to dismiss the complaint for lack of jurisdiction. We affirm the
order denying dismissal.
*Judge Shevin did not hear oral argument.
I. FACTUAL BACKGROUND
Amparo Cueto sustained injuries when the pool deck she
contracted for with Blue Haven Pools of Miami, Inc. collapsed on
her foot. She sued Blue Haven and, after obtaining a default
judgment, she also sued Golden State Industries, Inc. and Jeffrey
D. Cohen. She alleged that Golden State conducted business in
Florida under the trademark "Blue Haven Pools and Spas" and that
Blue Haven Pools of Miami, Inc. "was a subsidiary of and/or part of
this national pool building company."
On August 15, 2000, Cueto served Golden State with process in
California through Golden State's "authorized agent," Phil Zamel.
Golden State, however, did not answer the complaint nor did it file
any other pleading. The trial court entered a default against
Golden State on October 26, 2000. After Golden State received a
notice for trial, it moved to set aside the default on August 15,
2001, arguing excusable neglect, meritorious defense, and due
diligence. The motion did not challenge the court's jurisdiction.1
In support of its motion to set aside the default, Golden
State relied upon the affidavit of Golden State's corporate
The dissent takes issue with this statement because, in
its proposed Answer and Affirmative Defenses, as a Second
Affirmative Defense, Golden State alleged that the court did "not
have jurisdiction over Golden State, a non-resident of Florida,
which does not conduct business and does not have sufficient
contacts in Florida to subject it to the jurisdiction of this
Court." For the reasons we will explain later, this was
insufficient to challenge the court's jurisdiction.
counsel, Daniel W. Schreimann, Esq., and a letter from Phil Zamel's
physician. In the affidavit, Schreimann swore that Zamel
inadvertently failed to forward the complaint and summons to Golden
State's corporate counsel as a result of Zamel's medical condition
which impaired his mental faculties. Golden State also filed its
proposed answer and affirmative defenses, the latter of which
included the defense of failure to state a cause of action, lack of
personal jurisdiction, and absence of ownership of trademarks. The
proposed answer did not set forth any facts to justify its
allegation of lack of personal jurisdiction. Although there
existed two Golden State Industries, Inc. corporations, one
incorporated in California and one incorporated in Nevada, neither
the motion nor the proposed answer made any reference to that fact.
They simply referred to "Golden State Industries, Inc." The trial
court denied the motion to vacate the default on October 10, 2001.
On February 6, 2002, Golden State renewed its motion to vacate
default. In support of its renewed motion, Golden State again
relied upon Schreimann's affidavit, as well as the affidavit of
Zamel's physician, Colin Stokol, M.D. The new affidavit basically
expanded on the prior affidavit, wherein Dr. Stokol swore that
Zamel suffered from Parkinson's Disease and experienced memory
difficulties, fatigability, deafness, and likely had a poor
comprehension of questions and offered potentially unreliable
answers. The motion also alleged that "Golden State" maintained
that they had no contacts whatsoever with the State of Florida.
The Schreimann Affidavit referred to Golden State Industries, Inc.,
a California corporation, but did not intimate that there was
another Golden State incorporated in the State of Nevada. The
trial court denied the renewed motion to vacate default on April
On February 12, 2002, six months after it had initially moved
to set aside the default, Golden State for the first time moved to
dismiss for lack of personal jurisdiction. Golden State again
argued that it had no affiliation with Blue Haven and did not
conduct business in Florida. In support of its motion to dismiss,
Golden State relied upon the affidavit of California Golden State's
secretary and director, Billy Eisman, as well as the affidavit of
Schreimann. Eisman swore that California Golden State only
conducts business in California, does not own the Blue Haven Pools
and Spas trademark nor have they ever owned such a trademark, is a
sub-franchiser only for the State of California, and that
California Golden State has never constructed or built a swimming
pool in California or in any other state. Eisman also swore that
Zamel suffered from a severe medical condition. None of these
documents mention the Nevada Golden State Industries, Inc.
The existence of two Golden State Industries, Inc., both
bearing the same name, with different states of incorporation, was
revealed for the first time at the deposition of Phil Zamel, which
was taken on March 22, 2002. Zamel testified that he bought the
trade name Blue Haven Pools and Spas from its parent company in
1975 and that he was the president of "Golden State" since 1981.
He also testified that there were two Golden State Industries, the
one located in California and the other located in Nevada, that
bore the same corporate name; that California Golden State is only
registered to do business in California; and that he was not
connected with the Nevada Golden State. It turns out that Zamel
was not only connected with the Nevada Golden State, he was its
At the subsequent evidentiary hearing, the trial court
considered the testimony of various witnesses, including the
Schreimann Affidavit; the Eisman Affidavit; Cueto's deposition;
the testimony of Cueto's counsel John Seligman, Esq.; and the
testimony of Ronald Zaberer, the Chief Financial Officer of both
the California Golden State and Nevada Golden State. Zaberer
admitted that Phil Zamel was the president of both corporations;
that Nevada Golden State conducts business all over the United
States; and that California Golden State conducts business only in
California. Schreimann testified that he was counsel for both
corporations. The trial court denied the motion to dismiss for
lack of personal jurisdiction and this order forms the basis of
Golden State's appeal.
II. WAIVER OF PERSONAL JURISDICTION
The first issue we must consider is whether the defendant
waived the issue of personal jurisdiction. Because personal
jurisdiction is intended to protect a defendant's liberty
interests, the defense is a personal right and may be obviated by
consent or otherwise waived. Babcock v. Whatmore, 707 So. 2d 702,
704 (Fla. 1998). As the Florida Supreme Court stated in Babcock,
"a defendant may manifest consent to a court's in personam
jurisdiction in any number of ways, from failure seasonably to
interpose a jurisdictional defense, to express acquiescence in the
prosecution of a cause in a given forum, to submission implied from
conduct." Id. (quoting from General Contracting & Trading Co. v.
Interpole, Inc., 940 F.2d 20, 22 (1st Cir. 1991)). Here, Golden
State pursued its motion to set aside the default, but not the lack
of jurisdiction, until months later when it had been repeatedly
unsuccessful in obtaining the requested relief.
In Rojas v. Rojas, 723 So. 2d 318 (Fla. 3d DCA 1998), the wife
filed a dissolution of marriage action and obtained a default
against the husband, a Mexican national. Counsel for the husband
filed a "Notice of Limited/Special Appearance" announcing the
husband's intent to contest personal jurisdiction. The husband
next filed a motion to set aside default and to dismiss the
petition for dissolution of marriage. He argued that the trial
court should defer to an earlier-filed proceeding in Mexico, and
that the Florida action should be dismissed. We concluded that,
because the husband's motion to dismiss did not challenge personal
jurisdiction, the defense was waived. Similarly, in Consolidated
Aluminum Corp. v. Weinroth, 422 So. 2d 330, 331 (Fla. 5th DCA
1982), the court stated that a "defendant wishing to contest
personal jurisdiction must do so in the first step taken in the
case, whether by motion or in a responsive pleading, or that issue
is waived and defendant has submitted himself to the court's
We thus conclude that Golden State waived the issue of
personal jurisdiction by not raising it initially, but instead
pursuing its motion to set aside the default based on excusable
neglect, due diligence and meritorious defense. The fact that the
proposed answer made a vague, conclusory reference to the lack of
personal jurisdiction, without setting forth any factual support,
does not change the outcome that the issue was waived.
The dissent takes issue with this conclusion. Apparently, the
dissent finds that the general denial of personal jurisdiction in
the Second Affirmative Defense, included with ten other general,
boiler-plate affirmative defenses, was sufficient to challenge
personal jurisdiction because rule 1.140(h)(1) specifically allows
the defense of lack of jurisdiction over the person to be presented
in a responsive pleading. We cannot agree. Rule 1.140(h)(1)
(1) A party waives all defenses and objections that the
party does not present either by motion under
subdivisions (b), (e), or (f) of this rule or, if the
party has made no motion, in a responsive pleading except
as provided in subdivision (h)(2).
Because Golden State made a motion, we cannot see how the language
of the rule supports the dissent.2 Such an approach would allow a
party to attack service of process first, obtain a ruling on that
issue, then depending on the outcome, bring up the personal
jurisdiction issue, followed perhaps by a motion attacking venue.
The transgression which the dissent does not address is Golden
State's silence about the existence of two corporations. Golden
State raised only one issue, which it unsuccessfully litigated, and
then raised the issue of the two corporations with the same name
from different states months after it unsuccessfully litigated its
motion to set aside default.
III. PERSONAL JURISDICTION
Even if the issue had not been waived, we find that the trial
The dissent also cites M.T.B. Banking Corp. v. Bergamo
Da Silva, 592 So. 2d 1215 (Fla. 3d DCA 1992), but in that case
the defendant raised the lack of personal jurisdiction in its
answer and in its motion for judgment on the pleadings.
Likewise, in Cumberland Software, Inc. v. Great American Mtg.
Corp., 507 So. 2d 794 (Fla. 4th DCA 1987), the defendant only
filed an answer and a counterclaim, but did not file a motion.
court properly denied the motion to dismiss. In determining
whether there is personal jurisdiction, a two-part inquiry is
required. First, the reviewing court must determine whether the
complaint alleges sufficient jurisdictional facts to bring the
action within the ambit of Florida's long-arm statute, section
48.193, Florida Statutes (1999). See Venetian Salami Co. v.
Parthenais, 554 So. 2d 499, 502 (Fla. 1989). Under section 48.193,
Florida Statutes (1999), a person subjects themselves to the
jurisdiction of Florida courts, as follows:
(1) Any person, whether or not a citizen or resident
of this state, who personally or through an agent does
any of the acts enumerated in this subdivision thereby
submits himself or herself ... to the jurisdiction of the
courts of this state for any cause of action arising from
the doing of any of the following acts:
(a) Operating, conducting, engaging in, or
carrying on a business or business venture in
this state or having an officer of agency in
(b) Committing a tortious act within this
Second, if the allegations in the complaint fall within the
ambit of Florida's long-arm statute, the court must then determine
whether the exercise of jurisdiction is consistent with due
process. Venetian Salami, 554 So. 2d at 502. The exercise of
personal jurisdiction comports with the requirements of due process
so long as the defendant purposefully established "minimum
contacts" in the forum state. See Burger King Corp. v. Rudzewicz,
471 U.S. 462 (Fla. 1985). We find the allegations in the complaint
in this case are sufficient to invoke personal jurisdiction under
Florida's long-arm statute. See § 48.193(1)(a), 1(g), Fla. Stat.
(1999). Additionally, these allegations show the constitutionally
required minimum contacts with the State of Florida so as to
satisfy due process requirements.
In addition to the allegations in the complaint regarding
Golden State's business activities in Florida through the "Blue
Haven Pools and Spas" trademark and Blue Haven Pools of Miami,
Inc.'s subsidiary status, the complaint makes various other
allegations. The complaint alleges as follows:
Defendants and/or their agents and/or their
employees ... negligently failed to adequately
and reasonably inspect and build a pool deck;
these defendants negligently failed to
properly and reasonably supervise the actions
of their agents and/or employees, failed to
make sure that their agents and/or employees
were properly trained in the installation of
the subject decking and/or failed to properly
and adequately provide sufficient information
to [Cueto] so that she could know that the
defendants' agents and/or employees were not
properly trained, did not know how to build a
pool deck, and/or may not have been affiliated
with this national organization.
Furthermore, the complaint alleges that Cueto injured herself as a
direct, proximate, and reasonably foreseeable result of the
IV. SERVICE OF PROCESS
We turn now to the issue of service of process. Section
48.081, Florida Statutes (1999), permits service of process upon a
corporation to be served on the corporation's authorized agent.
That section provides as follows:
(1) Process against any private corporation, domestic or
foreign, may be served:
(a) On the president or vice president, or
other head of the corporation.
A corporation's president is its authorized agent for service of
process. See § 607.0504(2), Fla. Stat. (1999). In the absence of
the corporation's president, vice president, or the corporation's
head, process may be served upon a variety of other persons. See
§ 48.081(1)b-d, (2) Fla. Stat. (1999). Process may be served on
the corporation's designated agent. See § 48.081(3), Fla. Stat.
In this case, it is undisputed that Phil Zamel was the
president of both Nevada Golden State and California Golden State
at the time in which Cueto effectuated service of process.
Notwithstanding the different states of incorporation of Golden
State, Phil Zamel was the authorized agent of both corporations
under section 48.081, Florida Statutes (1999). Additionally, Phil
Zamel was the designated agent of California Golden State under
section 48.081(3), Florida Statutes (1999).
The denial of Golden State's motion to vacate default is not
before us for review. Golden State argues, however, that the
parties agree that Nevada Golden State, as opposed to California
Golden State, is the appropriate party defendant. It thus urges us
to reverse based on this Court's long standing policy that favors
the resolution of matters on the merits, see Integrated Transaction
Servs., Inc. v. Bahama Sun-n-Fun Travel, Inc., 766 So. 2d 269, 271
(Fla. 4th DCA 2000). Notwithstanding this policy, to reverse for
a trial on the merits, we would have to ignore our prior law on
waiver, personal jurisdiction and service of process. We cannot in
fairness do that. The plaintiff here was injured over seven (7)
years ago. Golden State was served on August 15, 2000, almost four
(4) years ago. It filed no pleadings for a year, then, for months
tried to dance around the fact that there were two corporations with
the same name, the same president, the same legal counsel, and the
same chief financial officer. Enough is enough.
V. TWO GOLDEN STATE INDUSTRIES, INC.
The problem in this case all stems from the defendant
incorporating in two different states under the exact same name,
then using the same registered agent for both. We agree with the
dissent that when the plaintiff served "Golden State Industries,
Inc.," it was not serving both the California and the Nevada
corporations. Where we disagree is with the conclusion that the
plaintiff was serving the California corporation. We conclude that
the plaintiff served the Nevada corporation.
"When a default is entered, the defaulting party admits all
well-pled factual allegations of the complaint." Fiera.com, Inc.
v. DigiCast New Media Group, Inc., 837 So. 2d 451, 452 (Fla. 3d DCA
2002), quoting State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So.
2d 1069, 1072 (Fla. 4th DCA 2001). Thus, the defendant admitted
that it was doing business in Dade County, Florida under a trademark
which they owned as "Blue Haven Pools and Spas." They admitted that
they had been in business since 1954, that they were experienced
contractors, that they were the "world's largest pool builder;" and
that Blue Haven Pools of Miami, Inc. was a subsidiary of and/or part
of this national pool building company. As it turns out, these
allegations apply only to the Nevada Golden State, not the
California Golden State. When you consult http://www.bluehaven.com,
you see a presence in almost every state in the country. The
trademark office lists Golden State Industries, Inc., with an
address in San Diego, California, as the owner. Thus, when the
defendant served "Golden State Industries, Inc.," why should we
assume, as the defendant suggests, that the plaintiff was serving
the wrong Golden State, to which the allegations in the complaint
did not apply, as opposed to the correct Golden State, to which the
allegation did apply?
We conclude, as the trial court did, that the defendant created
the confusion between the two corporations. The obvious purpose for
using the same corporate name in two states is to confuse creditors.
The defendant continued the tactic during this litigation by keeping
this information hidden from the plaintiff and the court for months
while it unsuccessfully litigated the issue of the service of
process, using perjured testimony. Only after the motion to vacate
and its motion for reconsideration were both denied did the
defendant raise the issue that there were two corporations with the
same name in two different states.
We therefore affirm the order denying dismissal for lack of
SHEVIN and RAMIREZ, JJ., concur.
Golden State Industries, Inc. v. Amparo Cueto
Case No. 3D02-2965
COPE, J. (dissenting).
Respectfully, the majority opinion's analysis is contrary to
established precedent. The majority also overlooks a simple fact
about this case: Nevada Golden State Industries, Inc. is registered
to do business in Florida. The majority opinion goes to great
lengths to criticize the defendants--and they are subject to
criticism because they should not be using identical names for two
corporations in adjacent states. But the fact remains that Nevada
Golden State properly registered with the Florida Secretary of
State. Thus, if there is blame to be assessed regarding service on
the wrong corporation, the plaintiff must share equal, or more,
blame for failure to conduct the appropriate inquiry with the
Florida Secretary of State.
The majority opinion says that California Golden State waived
its objection to personal jurisdiction. Majority opinion at 7.
That is not so. The plaintiff served the complaint on Phil Zamel
in California. There was no timely response and the court entered
Subsequently California Golden State filed a Motion to Vacate
Default, attached to which was a proposed answer and affirmative
defenses. Golden State's Second Affirmative Defense says: "This
Court does not have personal jurisdiction over Golden State, a non-
resident of Florida, which does not conduct business and does not
have sufficient contacts in Florida to subject it to the
jurisdiction of this Court." App. 8.
The majority opinion inexplicably finds that Golden State
waived the jurisdictional objection. The majority is wrong about
The majority says that "Golden State pursued its motion to set
aside the default, but not the lack of jurisdiction, until months
later . . . ." Majority opinion at 6. The majority misapprehends
the record. In moving to set aside a default, the moving party must
demonstrate (among other things) that the moving party has a
meritorious defense. See Cinkat Transp. Inc. v. Maryland Cas. Co.,
596 So. 2d 746, 747 (Fla. 3d DCA 1992). In order to demonstrate the
existence of such defenses, Golden State filed an answer and
affirmative defenses which included the absence of personal
jurisdiction as one of several defenses. See id.; Pieco, Inc. v.
Sunset Amoco West, Inc., 597 So. 2d 972, 973 (Fla. 3d DCA 1992).
Rule 1.140(h)(1) specifically allows the defense of lack of
jurisdiction over the person to be presented in a responsive
pleading, i.e., an answer. See M.T.B. Banking Corp. v. Bergamo Da
Silva, 592 So. 2d 1215 (Fla. 3d DCA 1992); Cumberland Software, Inc.
v. Great American Mtg. Corp., 507 So. 2d 794, 795 (Fla. 4th DCA
1987). The defendant's filings were a timely and appropriate way
to raise the objection to personal jurisdiction.
The majority opinion also says, "The fact that the proposed
answer made a vague, conclusory reference to the lack of personal
jurisdiction, without setting forth any factual support, does not
change the outcome that the issue was waived." Majority opinion at
7. There are two problems with this analysis.
First, the defendant's affirmative defense is clear on its face
and puts the plaintiff on fair notice of the defense of lack of
Second, the majority's analysis is contrary to this court's
decision in Calero v. Metropolitan Dade County, 787 So. 2d 911 (Fla.
3d DCA 2001). There we said that where an affirmative defense is
insufficiently particularized, it is "subject to being stricken with
leave to replead. See Fla. R. Civ. P. 1.140(b)." 787 So. 2d at
Contrary to what the majority opinion says, there is no rule
that an insufficiently pled affirmative defense is waived. The
majority cites no authority for that proposition. Instead, as
stated in Calero, if the affirmative defense is insufficiently pled,
the plaintiff may attack it by a motion to strike and, if the motion
is well taken, then the defending party must be given leave to
replead with more particularity.
The majority opinion rules alternatively that the trial court
correctly denied the motion to dismiss for lack of jurisdiction on
the merits. Respectfully, that is not so.
The problem here is that the majority opinion treats the issue
purely as a matter of pleading. The majority says that the
complaint makes sufficient allegations to invoke personal
jurisdiction under Florida's long arm statute. Majority opinion at
9. The majority thus rules that, as matter of pleading, the
plaintiff has alleged sufficient facts to bring the defendant within
the ambit of Florida's long arm statute.
The majority opinion has, however, failed to address Golden
State's actual claim in the trial court: that as a matter of fact,
there is no long-arm jurisdiction over California Golden State.
Under Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989),
"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." Id. at 502
(emphasis added). In this case the defendant filed such affidavits
and the trial court referred the matter to a retired judge for "a
limited evidentiary hearing in order to determine the jurisdiction
issue." Id. at 503.
On appeal from the order denying the motion to dismiss for lack
of personal jurisdiction, the question before us is whether the
order is supported by competent substantial evidence. In the
present case there is no evidence to support the order.
It is clear in the record that the California Golden State
corporation does business only in California. Nevada Golden State
is the corporation which is doing business in Florida. Indeed,
Nevada Golden State corporation is registered to do business in
Florida--a point the plaintiff overlooked. App. 19, at 34.
Since there is no evidence which supports the proposition that
California Golden State has long arm contact with Florida, it
follows that the order now before us must be reversed.
I am in agreement with the majority opinion in rejecting the
plaintiff's "two for one" theory of personal jurisdiction. At oral
argument, the plaintiff announced her theory that when the plaintiff
served Mr. Zamel in California, the plaintiff had effectively
accomplished service of process on both California Golden State and
Nevada Golden State. Further, it is the plaintiff's position that
when the default was entered, the default applies to both the
California and Nevada companies.
The terminology used on the summons in this case corresponds
to the terminology and identification of officers for the California
corporations. It is clear that the plaintiff has served only
California Golden State, not Nevada Golden State.
In conclusion, the evidence of record demonstrates that there
is no long arm jurisdiction over California Golden State. We should
reverse the order now before us.
Because the plaintiff did not know of the existence of two
Golden State corporations, the complaint has been addressed to
Golden State without differentiation between the two companies. The
complaint is thus legally sufficient to state a claim against Nevada
Golden State. Golden State's counsel agreed with this point at oral
That being so, the current complaint is sufficient to stop the
running of the statute of limitations as to Nevada Golden State.
Thus, while service of process should be quashed as to California
Golden State, the plaintiff remains free to serve Nevada Golden
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