American Buildings Co. v. Energy Sun Power, Inc. ( 1982 )

PER CURIAM.

This is an interlocutory appeal whereby appellant, defendant below, challenges the lower court’s order denying its motion to quash service of process and to dismiss for lack of jurisdiction.

Appellee brought an action for damages against, appellant, a foreign corporation, and two other defendants. Service of process was attempted on appellant by serving an individual, H.K. Smith, whom appellee believed to be appellant’s agent. Appellant filed a motion to quash service of process and to dismiss for lack of jurisdiction. An affidavit of the purported agent, H.K. Smith, was attached to appellant’s motion. Appellant’s motion and Smith’s affidavit both maintained that Smith had never been appellant’s agent and that neither Smith, himself, nor appellant had ever held him out as such. According to the appendix submitted on appeal, there was no rebuttal filed to the motion and affidavit.

We find that in view of the unrebutted affidavit which denied Smith was appellant’s agent, the trial judge erred in denying appellant’s motion to quash and dismiss. Biscayne Athletic Club, Inc. v. Iacono, 367 So.2d 275 (Fla. 3d DCA 1979).

Accordingly, the order appealed is REVERSED.

SCHEB, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.