Wednesday, August 11, 2010

Foreign Corporation Remains Subject To Service Of Process Until Withdrawal From State Approved

In Vrchota Corporation v. Kelly (4D09-4939), the Fourth District affirmed the trial court's order denying a motion to dismiss for improper venue.  The court stated:
A plaintiff has the option of selecting venue, provided that the plaintiff’s choice is supported by the statutes....In the instant case, Defendant Vrchota Corporation submitted an affidavit challenging the Plaintiff’s choice of venue, alleging that the corporation was not amenable to suit in Palm Beach County because it did not have an agent in the county at the time that service was allegedly made.
The facts alleged are that Plaintiff filed suit in Palm Beach County on June 12, 2009 and effected service upon Kevin Piller as registered agent o n June 19, 2009. Defendant averred in its affidavit that Vrchota Corporation “withdrew” from doing business in the State of Florida and revoked its’ registered agent’s authority to accept service, all pursuant to section 607.1520, Florida Statutes, on June 8, 2009, several days prior to the commencement of this litigation. Defendant asserted that as of June 8, 2009, Defendant Vrchota Corporation did not have an office, agent or representative in Palm Beach County.
The only dispute is whether, as a matter of law, the registered agent’s authority had been revoked at the time of service because the defendant foreign corporation had “withdrawn” from doing business in Florida pursuant to section 607.1520, Florida Statutes. We hold that the registered agent’s authority was not revoked prior to the date of service upon him, because no evidence was adduced below that a certificate of withdrawal had issued permitting Defendant Vrchota Corporation to withdraw from transacting business in the state of Florida at that time.
Clearly, then, by the terms of the statute, any application for a certificate of withdrawal requires that the application set forth the intent to revoke the authority of the registered agent to accept service of process. However, the statute must be read in its entirety to determine when that revocation takes effect. Defendant Vrchota Corporation assumes that the revocation takes effect when written and submitted as part of the application for the certificate of withdrawal. However, a reading of the plain language of the statute establishes that is not the case.
As noted above, paragraph (1) of the statute establishes that a foreign corporation may not withdraw until it obtains a certificate of withdrawal. Further, paragraph (3) provides that “[a]fter the withdrawal of the corporation is effective, service of process on the Department of State under this section is service on the foreign corporation.” Therefore, while the statute requires the written intent to revoke the registered agent’s authority as part of the application for a certificate of withdrawal, the statute also plainly states that withdrawal is not effective until the certificate of withdrawal is issued by the Department of State. Only then will the Department become the agent for service of process. Thus, the registered agent remains authorized to accept service of process, just as the corporation remains authorized to do business in the state, unless and until the Department of State issues a certificate of withdrawal.


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