DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ASTRO ALUMINUM TREATING CO., INC.,

Appellant,

v.

INTER CONTAL, INC.,

Appellee.

No. 4D19-2921

[May 27, 2020]

Appeal of a nonfinal order from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Janis Brustares Keyser, Judge; L.T. 

Case No. 502019CA001633XXXXMBAB.

Todd M. Kurland of the Law Office of Todd M. Kurland, P.A., North Palm 

Beach, for appellant.

Robin I. Frank and Andrew B. Blasi of Shapiro, Blasi, Wasserman & 

Hermann, P.A., Boca Raton, for appellee.

WARNER, J.

In this appeal, appellant contends that the trial court erred by finding 

personal jurisdiction over it under the long-arm statute. The court found 

jurisdiction, because the complaint asserts that appellant breached a 

contract by failing to perform acts required by the contract to be performed 

in this state. § 48.193(1)(a)(7), Fla. Stat. (2019). We reverse because the 

contract in question did not require acts to be performed in Florida.

To acquire personal jurisdiction over a non-resident defendant within 

the scope of Florida’s long-arm statute requires a two-step process. 

Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). First, the 

plaintiff must allege sufficient jurisdictional facts to bring the action within 

the ambit of Florida’s long-arm statute. Id. at 502. Second, if the longarm statute applies, the next inquiry is whether sufficient “minimum 

contacts” are demonstrated to satisfy due process requirements. Id.

If the complaint contains sufficient allegations to establish long-arm 

jurisdiction, and the defendant wishes to challenge that jurisdiction, then 
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the defendant must file an affidavit rebutting the allegations that support 

jurisdiction. Venetian Salami, 554 So. 2d at 502. Then the burden shifts 

back to the plaintiff to file an affidavit in support of personal jurisdiction. 

Id. If the facts contained within the affidavits can be harmonized, the trial 

court can render a decision based on the affidavits. Id. at 503. If the facts 

within the affidavits conflict, then the trial court must conduct an 

evidentiary hearing to resolve the issue. Id.

Regardless, the plaintiff must also satisfy the second prong of the 

analysis; showing the defendant has sufficient minimum contacts with 

Florida to satisfy due process. Id. at 502; see also Cornerstone Inv. 

Funding, LLC v. Painted Post Grp., Inc., 188 So. 3d 904, 906 (Fla. 4th DCA 

2016) (“The mere fact, however, that Cornerstone allegedly breached a 

contract by failing to make payments on the contract in Florida would not 

constitute sufficient minimum contacts with this state to satisfy due 

process.”).

This complaint alleged two statutory bases for long-arm jurisdiction 

under section 48.193. First, without expressly citing subsection (1)(a)(7), 

it alleged that appellant breached a contract in this state when it shipped 

materials into the state. Second, citing subsection (1)(a)(6), it alleged that 

appellant caused injury to persons or property within the state arising out 

of Astro’s act or omission outside of the state.

We view this complaint as solely alleging specific jurisdiction based on 

one transaction between the parties. The complaint alleged that Appellee, 

Inter Contal, supplies specialty metals to customers in the aerospace 

industry and then described the parties’ business relationship and the 

relevant transaction. Appellant, Astro Aluminum Treating Co., Inc., is a 

California corporation in the business of providing various specialty metal 

processing and treatment services. Inter Contal delivered specially 

fabricated metals to Astro for heat treatment to certain well-defined 

specifications pursuant to an invoice attached to the complaint. Astro 

accepted the order which included a “Ship To” specification of Inter 

Contal’s address in Florida. After Astro completed the treatment and 

certified the process, it arranged for the material to be shipped back to 

Inter Contal in Florida. Inter Contal then delivered the materials to a 

customer in Italy who discovered that the treatment of the metals did not 

conform to specifications, which made the metals worthless.

Based on the above allegations, Inter Contal alleged that Astro “may 

reasonably be expected to respond in court in Florida over any claims 

which may arise from the aforesaid transaction, course of dealing and 

conduct, including entering into a contract with [Inter Contal] which 
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contemplated and required [Astro] to ship [Inter Contal’s] materials back 

to [Inter Contal] in Florida after [Astro] treated them.”

Inter Contal sued for both breach of contract and violations of the 

Florida Deceptive and Unfair Trade Practices Act. Attached to the 

complaint was an order from Inter Contal, which recites that Astro 

Aluminum as “vendor” with a “ship to” Inter Contal. Directions on the 

front of the invoice state “re-pack material into wood boxes provided.” Also 

attached is an invoice from Astro to Inter Contal showing the amount due 

and requesting remittance to its address in California. In addition, a 

FedEx bill of lading was also made an exhibit, showing that shipping 

charges were prepaid by Inter Contal for shipping from Astro to Inter 

Contal.

Astro moved to dismiss the complaint alleging that Florida lacked either 

general or specific jurisdiction. Astro asserted that it did not engage in 

systematic and continuous business contacts in Florida. It attached 

affidavits from its vice president of operations as well as its quality 

assurance manager. The vice president attested that Astro was located in 

California, all its operations were conducted there, it is not registered to 

do business in Florida, has no offices here, and derives only a limited 

portion (1%) of its revenue from Florida-based customers.

Both affidavits described Astro’s business processes as follows. Astro 

receives metal alloys from its customers for the sole and exclusive purpose 

of tempering or treating the alloys at its place of business in California. All 

customers, including the plaintiff, prepay shipping for their alloys to and 

from Astro’s place of business in California. The customer’s raw alloys are 

delivered to Astro at its plant in California where they are treated and 

tested to the customer’s specifications. Once the treatment and testing 

are completed, the finished alloys are shipped from Astro’s California 

facility to the location specified by the customer through the customer’s 

prepaid return shipping. The affidavits concluded that not a single action 

undertaken by Astro or any third party utilized in the course of Astro’s 

operations occurred outside of the State of California.

Astro argued that shipping Inter Contal’s own materials by prepaid 

shipment after treatment by Astro in California to it by prepaid shipping 

was insufficient to provide jurisdiction. Furthermore, the telephone calls 

and emails prior to the purchase order between the parties did not 

constitute the breach of any contract to be performed in Florida.

Based upon the affidavits, the trial court denied the motion to dismiss 

for lack of jurisdiction. The court relied on Control Laser Corp. v. Rocky 
4

Mountain Instrument Co., 130 F. Supp. 2d 1344, 1346 (M.D. Fla. 2000),

which involved the sale of allegedly defective mirrors manufactured by a 

Colorado business and delivered to a purchaser in Florida. Control Laser

determined that the defendant failed to perform acts required by the 

contract to be performed in Florida, when it failed to deliver non-defective 

items in Florida. The court here concluded that Astro negotiated with Inter 

Contal over phone calls and emails sent to and from Florida, treated the 

alloys and then delivered the “goods” to Inter Contal in Florida and 

accepted payment sent from Florida by Inter Contal. It also found that 

Astro had sufficient minimum contact with the State of Florida to justify 

the assertion of jurisdiction. From this order, Astro appeals.

A trial court’s ruling on a motion to dismiss for lack of personal 

jurisdiction is reviewed de novo. NHB Advisors, Inc. v. Czyzyk, 95 So. 3d 

444, 447 (Fla. 4th DCA 2012). Florida Statute section 48.193(1)[(a)(7)]1

“must be strictly construed in order to guarantee compliance with due 

process requirements.” Olson v. Robbie, 141 So. 3d 636, 640 (Fla. 4th 

DCA 2014), quoting Cosmopolitan Health Spa, Inc. v. Health Indus., Inc., 

362 So. 2d 367, 368 (Fla. 4th DCA 1978).

We agree with Astro that its contract with Inter Contal did not require 

it to perform any acts in Florida. In doing so, we disagree with the trial 

court that the contract required delivery of the treated metal alloys in 

Florida. Based upon the facts in the affidavits, as well as the documents 

attached to the complaint, we hold that the contract did not require 

performance in Florida. Therefore, no long-arm jurisdiction attached.

In this case, the purchase order and invoices constituted the contract 

between the parties. The contract required Inter Contal to send its 

aluminum alloy to Astro for treatment. Thus, Inter Contal owned the alloy, 

not Astro. It was sent in crates which were to be used to return the treated 

product. When treatment was finished, the contract provided that the 

alloy would “ship to” Inter Contal in the crates it furnished and by shipping 

prepaid by it. Astro’s obligations were complete when it delivered the 

product to the carrier in California for shipping. In other words, delivery 

occurred in California, not Florida.

Although the treatment of alloy is not a sale of goods pursuant to the 

Uniform Commercial Code, the provisions of the code are useful in 

construing the contractual provision in this case and determining where 

delivery occurs. Under the UCC this also affects the risk of loss of goods 

1 Section 48.193 was amended in 2013 and changed the numbering of the 

statute. Section 48.193(1)(g) became section 48.193(1)(a)(7).
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during transit. In Pestana v. Karinol Corp., 367 So. 2d 1096, 1099 (Fla. 

3d DCA 1979), the court distinguished shipment and destination 

contracts, the two types of sales contracts that apply when a carrier is 

used to transport goods sold:

A shipment contract is considered the normal contract in 

which the seller is required to send the subject goods by 

carrier to the buyer but is not required to guarantee delivery 

thereof at a particular destination.

Under a shipment contract, the seller, unless otherwise 

agreed, must: (1) put the goods sold in the possession of a 

carrier and make a contract for their transportation as may 

be reasonable having regard for the nature of the goods and 

other attendant circumstances, (2) obtain and promptly 

deliver or tender in due form any document necessary to 

enable the buyer to obtain possession of the goods or 

otherwise required by the agreement or by usage of the trade, 

and (3) promptly notify the buyer of the shipment. On a 

shipment contract, the risk of loss passes to the buyer when 

the goods sold are duly delivered to the carrier for shipment 

to the buyer.

A destination contract, on the other hand, is considered the 

variant contract in which the seller specifically agrees to 

deliver the goods sold to the buyer at a particular destination 

and to bear the risk of loss of the goods until tender of delivery.

This can be accomplished by express provision in the sales 

contract to that effect or by the use of delivery terms such as 

F.O.B. (place of destination). Under a destination contract, 

the seller is required to tender delivery of the goods sold to the 

buyer at the place of destination. The risk of loss under such 

a contract passes to the buyer when the goods sold are duly 

tendered to the buyer at the place of destination while in the 

possession of the carrier so as to enable the buyer to take 

delivery. The parties must explicitly agree to a destination 

contract; otherwise the contract will be considered a shipment 

contract.

[Citations omitted.] In Pestana, the court held that a purchase invoice 

which directed shipment of goods to be sent to an address in Mexico, 

without any allocation of risk of loss, was a shipment contract. It 

explained:
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A “send to” or “ship to” term is a part of every contract 

involving the sale of goods where carriage is contemplated and 

has no significance in determining whether the contract is a 

shipment or destination contract for risk of loss purposes. 

Electric Regulator Corp. v. Sterling Extruder Corp., 280 F. Supp. 

550, 557-58 (D.C. Conn. 1968); Eberhard Manufacturing Co. 

v. Brown, 61 Mich. App. 268, 232 N.W.2d 378 (1975). As 

such, the “send to” term contained in this contract cannot, 

without more, convert this into a destination contract.

Id. at 1100.

Thus, under general commercial dealings, the place of performance of 

the sale of goods is not necessarily the ultimate destination. We conclude 

that the same analysis of contractual terms should apply to a strict 

construction of the long-arm statute. The mere fact that the contract 

provides for shipment to Florida is not determinative of jurisdiction, 

because the contract term does not mean that the contracting party is 

obligated to “deliver” the product in Florida. Particularly in this case, the 

sole designation in the purchase order was to “ship to” Inter Contal. Inter 

Contal provided the packing and paid for the shipping. If this were a 

contract for the sale of goods, Inter Contal would have had the risk of loss 

once the product was delivered to the carrier for shipping. Astro had 

completed its contractual obligations when it delivered the goods to the 

carrier in California. Furthermore, to the extent that the product was 

defective, it was delivered in a defective state in California.

In Control Laser, relied on by the trial court, the facts simply state that 

the parties negotiated a contract whereby the defendant would sell “and 

deliver” mirrors to Florida. Since no other facts are included in the opinion

with respect to this crucial element of jurisdiction under section 

48.193(1)(a)(7), we cannot say whether we agree or disagree with the 

determination of the court. It does not appear that the facts of that case 

are comparable to those of the current case, where Inter Contal sent its 

alloys to California for treatment by Astro and then paid to have them 

shipped back to it in Florida. However, if the facts are similar regarding

the contract and purchase order, we disagree with Control Laser that 

under our statute, strictly construed, personal jurisdiction can be asserted 

based upon section 48.193(1)(a)(7).

Inter Contal also relies on Lacy v. Force V Corp., 403 So. 2d 1050 (Fla. 

1st DCA 1981), which is inapposite since under the facts of that case the 

contract required delivery in Florida. The governing purchase contract 

required that equipment be delivered to the buyer’s place of business in 
7

Florida and that payment would not be made until the equipment arrived, 

was inspected, and approved by the purchaser.

As an alternative basis for specific jurisdiction, Inter Contal looks to 

section 48.193(1)(a)(6), also alleged in the complaint but not the basis of 

the trial court’s ruling. That section provides for exercise of long-arm 

jurisdiction over one who is not a citizen or resident of the state when he 

or she causes injury to persons or property within the state under certain 

circumstances involving products, materials or things serviced when used 

or consumed in the state resulting in injury. The complaint’s allegations 

show that the tempered alloys were not consumed or used within the state, 

nor was there any resulting injury in the state. Instead, the panels were 

sent to Italy or Japan for use in a third party’s production, where their 

defective nature was revealed. The only injury to Inter Contal alleged in 

its Florida Deceptive Unfair Trade Practices Act claim is monetary, which 

is insufficient for jurisdiction under this provision of the long-arm statute. 

See Aetna Life & Cas. Co. v. Therm-O-Disc, Inc., 511 So. 2d 992 (Fla. 1987) 

(holding that financial damage alone is insufficient to assert long-arm 

jurisdiction under its terms.).

Finally, and alternatively, Inter Contal argues that jurisdiction could be 

upheld based upon section 48.193(2), dealing with general jurisdiction, 

which allows this state to assert jurisdiction over a defendant engaging in 

substantial activity within the state whether or not the present claim arises 

from that activity. However, Inter Contal did not allege facts in its 

complaint to assert such jurisdiction. Rather, the complaint’s allegations 

focused on the specific transaction and purchase order outlined above.

In sum, the complaint sought to establish specific personal jurisdiction 

pursuant to section 48.193(1)(a)(7) and 48.193(1)(a)(6). As to (a)(6), the 

allegations were insufficient to establish jurisdiction. As to (a)(7), the 

affidavits and documents establish that the contract between the parties 

did not require any performance in Florida. Therefore, the trial court erred 

in denying Astro’s motion to dismiss for lack of personal jurisdiction. We 

reverse and remand for entry of an order dismissing the complaint for lack 

of personal jurisdiction.

GERBER and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.