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ORlGlNALIN THE SUPREME COURT OF FLORIDA
THE ESTATE OF MATTIE MCCUTCHEN,by and through BETTY A. BROWN, 7Personal Representative,
Plaintiff/PetitionerCASE NO.: SC12-2484
v. L.T. CASE NOS.: 2D11-2045
HARRIS SCHWARTZBERG TRUST,ET AL,
Defendants/Respondents.
JURISDICTIONAL BRIEF OF RESPONDENTS
Dante M. Skourellos, EsquireFlorida Bar No.: [email protected] & Dias, P.A.5102 W. Laurel St., Suite 700Tampa, FL 33607(813) 769-6280(813) 769-6281 FaxAttorneys for Respondents
TABLEOFCONTENTS
P_ge
Table of Authorities...............................................................................................iii
Statement of the Case and Facts..............................................................................1
Summary of the Argument......................................................................................4
Argument.................................................................................................................4
I. The district court's opinion properly applied thisCourt's precedent in Venetian Salami 4
II. The district court's opinion properly applied this Court's precedent ongeneral jurisdiction...................................................................................7
Conclusion.............................................................................................................10
Certificate of Service.................................................................................................10
Certificate of Compliance .....................................................................................11
11
TABLE OF AUTHORITIES
CasesCamp Illahee Investors, Inc. v. Blackman
870 So. 2d 80, 85 (Fla. 2d DCA 2003)..............................................................................8
Enic, PLC v. F.F. South & Co.870 So. 2d 888 (Fla. 5th DCA 2004).................................................................................9
Extendicare, Inc. v. Estate ofMcGillen957 So. 2d 58(Fla. 5th DCA 2007) ...................................................................................9
Greystone Tribeca Acquisition, L.L.C. v. Ronstrom863 So. 2d 473 (Fla. 2d DCA 2004)..................................................................................9
Harris Schwartzberg Trust, et al. v. Estate ofMcCutchen2012 Fla. App. LEXIS 10117 (Fla. 2d DCA June 22, 2012).....................................3,4,9,10
Harris Schwartzberg Trust, et al. v. Estate ofSimoneau77 So. 3d 913 (Fla. 1st DCA 2012).............................................................................3,4,9
Harris Schwartzberg Trust, et al. v. Estate of Walker2012 Fla. App. LEXIS 18056 (Fla. 2d DCA Oct. 17, 2012)..............................................3,4
Harris Schwartzberg, et. al v. Kim Knobloch2012 Fla. App. LEXIS 7829 (Fla. 2d DCA 2012)...........................................................3 7
Hilltopper Holding Corp. v. Estate ofCutchin955 So. 2d 598 (Fla. 2d DCA 2007)...............................................................................7,9
International Shoe Co. v. Washington326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) .................................................................5
Madonna v. Gaynor95 So. 3d 990 (Fla. 2d DCA 2012) ...................................................................................6
Res. Healthcare ofAm., Inc. v. McKinney940 So. 2d 1139 (Fla. 2d DCA 2006)................................................................................9
Venetian Salami Co. v. J S. Parthenais554 So. 2d 499, 503 (Fla. 1989) ...........................................................................3,4,5 6 7
Walt Disney Co. v. Nelson677 So. 2d 400, 403 (Fla. 5th DCA 1996)..........................................................................5
Woods v. Nova Cos. Belize Ltd.739 So. 2d 617, 620 (Fla. 4th DCA 1999)..........................................................................8
Statutes
Section 48.193(2).........................................................................................................................7,8
til
STATEMENT OF THE CASE AND FACTS
Petitioner filed suit against thirty-eight (38) defendants, including
Respondents, HARRIS SCHWARTZBERG; MAXWELL STOLZBERG;
HARRIS SCHWARTZBERG TRUST; STEVEN SCHWARTZBERG TRUST;
JUDITH SCHWARTZBERG TRUST; SCHWARTZBERG DESCENDANTS
TRUST; HARRIS SCHWARTZBERG 2003 TRUST; STEVEN
SCHWARTZBERG 2003 TRUST; HS MIDWEST TRUST #1, JS MIDWEST
TRUST; FAM MIDWEST TRUST; JUDITH SCHWARTZBERG 2003 TRUST;
HARRIS SCHWARTZBERG 2004 GST TRUST 1; HARRIS SCHWARTZBERG
2004 GST TRUST 2; JUDITH SCHWARTZBERG 2004 GST TRUST 1; JUDITH
SCHWARTZBERG 2004 GST TRUST 2; SCHWARTZBERG FAMILY GST
TRUST; SCHWARTZBERG 2004 DESCENDANTS TRUST; JS NATIONAL
TRUST; HS NATIONAL TRUST #1; HS NATIONAL TRUST #2; FAM
NATIONAL TRUST, in Polk County Circuit Court.
The Trust Foreign Respondents were created and operate in the State ofNew
York and are non-residents of the State of Florida. Mr. Harris Schwartzberg is a
resident of the State of New York and is a non-resident of the State of Florida. Mr.
Maxwell Stolzberg is a resident of the State of New York and is a non-resident of
the State of Florida. Ms. McCutchen was a resident at Palm Terrace of Lakeland
(the "Nursing Home") from October 1, 2008 through December 9, 2008. (the
1
"Residency"). Plaintiff alleged the Foreign Respondents were (1)
entities/individuals doing business in Florida, (2) entities/individuals that operated
the Nursing Home, (3) entities/individuals that committed tortious acts in Florida;
and (4) entities/individuals that exploited a vulnerable adult, i.e. Ms. McCutchen.
Foreign Respondents filed Motions to Dismiss Plaintiff's Complaint for
Lack of Personal Jurisdiction. In support of their Motions, the Foreign
Respondents filed two affidavits of Albert Schwartzberg, Harris Schwartzberg, and
Maxwell Stolzberg.
The Foreign Respondents' Motions to Dismiss and subsequent
Memorandum of Law explained the relationship between the Respondents and the
licensee and management company of the Nursing Home. The Foreign
Respondents have an ownership interest in the licensee and management company
of the Nursing Home. However, the Foreign Respondents do not manage, control,
operate, or consult with the licensee and management company of the Nursing
Home.
The record evidence clearly showed the Foreign Respondents did not
exercise the requisite control over the licensee and management company of the
Nursing Home to subject themselves to personal jurisdiction in Florida. Finally,
any alleged contacts the Foreign Respondents may have had with the State of
Florida individually or through its subsidiaries or affiliates were not substantial and
2
continuous, which is necessary for Florida courts to obtain personal jurisdiction
over these New York Respondents.
The trial court heard oral arguments on the Foreign Respondents' Motions to
Dismiss for Lack of Personal Jurisdiction during a limited evidentiary hearing on
April 27, 2011 required by Venetian Salami Co. v. JS. Parthenais, 554 So. 2d 499,
303 (Fla. 1989), (emphasis added). The trial court issued its Order denying
Defendants' Motion to Dismiss for Lack of Personal Jurisdiction on May 19, 2011.
A timely appeal to the Second District Court of Appeals was filed.
The Second District Court of Appeals correctly reversed and ordered the
Petitioner's suit against the Foreign Respondents dismissed. The Second District
Court of Appeals reached this same decision regarding the Foreign Respondents in
other cases. See Harris Schwartzberg, et. al v. Kim Knobloch, as Personal
Representative of the Estate of William Knobloch, Deceased, 2012 Fla. App. LEXTS
7829 (Fla. 2d DCA 2012); Harris Schwartzberg Trust, et al. v. Estate of
McCutchen, 2012 Fla. App. LEXIS 14984 (Fla. 2d DCA September 7, 2012);
Harris Schwartzberg Trust, et al. v. Estate of Walker, 2012 Fla. App. LEXIS 18056
(Fla. 2d DCA Oct. 17, 2012). Moreover, earlier this year, the First District Court
of Appeals reached this same decision regarding the Foreign Respondents. See
Harris Schwartzberg Trust, et al. v. Estate of Simoneau, 77 So. 3d 913 (Fla. 1st
3
DCA 2012). Plainti ffs in the Knobloch, McCutchen, Walker, and Simoneau cases
were represented by the same counsel in the instant matter.
SUMMARY OF THE ARGUMENT
The district court's opinion correctly applied this Court's precedent.
Petitioner incorrectly asserts there was not a limited evidentiary hearing conducted
by the trial court on February 9, 2011. The trial court did conduct a limited
evidentiary hearing, reviewing all evidence filed by both parties and hearing
argument by counsel. The trial court properly followed the procedure set forth in
Venetian Salami Co. v. J.S. Parthenais, 554 So. 2d 499, 503 (Fla. 1989).
Second, the district court's decision properly applied this Court's general
jurisdiction precedent. In fact, Petitioner had previously filed a Motion for
Rehearing with the district court regarding this exact issue. The district court
granted Petitioner's Motion for Rehearing and revised its opinion without changing
the disposition of the case, rejecting Petitioner's general jurisdiction argument.
(A. 2).
ARGUMENT
I. The district court's opinion properly applied this Court's precedentin Venetian Salami
In order to establish personal jurisdiction over a non-resident defendant, a
plaintiff must satisfy a two-pronged test. Venetian Salami Co. v. J.S. Partenais,
4
554 So.2d 499, 502 (Fla. 1989). Under the first prong, the plaintiff must satisfy
the initial burden of alleging sufficient jurisdictional facts in support of long arm
jurisdiction. Id. Under the second prong, the court must determine whether
sufficient "minimum contacts" have been demonstrated with the forum state to
satisfy constitutional due process requirements such that the exercise of personal
jurisdiction over a non-resident defendant must not "offend traditional notions of
fair play and substantial justice." Id. at 500 citing International Shoe Co. v.
Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
If the plaintiff satisfies the initial burden of alleging sufficient jurisdictional
facts, then the non-resident defendant has the burden of filing an affidavit
contesting the jurisdictional allegations contained within a complaint or raising a
contention of minimum contacts. Id. at 502. Once the non-resident defendant
meets its burden of filing the appropriate affidavit, then the burden shifts back to
the plaintiff to prove by affidavit or other sworn statement the basis for personal
jurisdiction. Id.; Walt Disney Co. v. Nelson, 677 So. 2d 400, 403 (Fla. 5th DCA
1996).
If the affidavits can be reconciled, the court is in a position to reach a
decision based upon essentially undisputed facts. Venetian Salami, 554 So. 2d at
503. However, if the affidavits cannot be harmonized, the trial court must hold a
limited evidentiary hearing in order to determine the jurisdictional question. Id.
5
On February 9, 2011, the trial court held a limited evidentiary hearing on the
various Motions to Dismiss for Lack of Personal Jurisdiction as required by
Venetian Salami. Petitioner's argument that an evidentiary hearing was never held
is disingenuous and wrong. In addition, Petitioner incorrectly argues the instant
matter is identical to the Madonna v. Gaynor, 95 So. 3d 990 (Fla. 2d DCA 2012).
In Madonna, the district court held "[t]he trial court conducted a hearing on
Mr. Madonna's motion. The transcript reflects some confusion as to whether this
hearing was required to be an evidentiary hearing. Nevertheless, it is clear that the
trial court never received testimony or evidence. The order denying the motion
contains no reasoning and does not explain how the trial court resolved the
disputed issues of fact....[a]lthough the nature of the evidentiary hearing on
personal jurisdiction contemplated by the Florida Supreme Court in Venetian
Salami is, by def'mition, to be "limited," we cannot conclude that the proceeding in
the record was sufficient to satisfy the requirement of a "limited evidentiary
hearing" to determine the issue of personal jurisdiction." Id. at 992.
In the instant matter, the district court noted "[t]he attachments to Fierro's
affidavit in this case-consisting of indirect knowledge of the Palm Terrace of
Clewiston's operations based, in part, on copies of licensures applications,
"controlling interest" affidavits, and cost reports-are nearly identical to those in
Knobloch. Although the attachments show that Schwartzberg, Stolzberg, and the
6
Trusts had an ownership interest in the Palm Terrace of Clewiston, "such
ownership, without more, is insufficient to establish personal jurisdiction over a
nonresident defendant." Knobloch, 2012 Fla. App. LEXIS 7829 at *21, 37 Fla. L.
Weekly at D1168 (citing Hilltopper Holding Corp., 955 So. 2d at 603). Thus,
Brown failed to establish any connection between Schwartzberg's, Stolzberg's, and
the Trusts' financial interests and the alleged harm committed against McCutchen
or that they had maintained sufficient minimum contacts with the state. See id. The
trial court therefore erred by ruling that it had personal jurisdiction over
Schwartzberg, Stolzberg, and the Trusts, and we reverse. On remand, the trial court
is directed to grant their motions to dismiss."
Clearly on February 9, 2011, a limited evidentiary hearing on the issue of
personal jurisdiction was held as required by Venetian Salami.
IL The district court's opinion properly applied this Court's precedenton general jurisdiction.
In Petitioner's Brief on Jurisdiction, she alleges the district court "focused
solely on the Respondents' Florida activities related to the Lakeland nursing home"
and therefore misapplied existing law. This statement is patently false.
The district court clearly stated "Section 48.193(2) provides that "[a]
defendant who is engaged in substantial and not isolated activity within this state,
whether such activity is wholly interstate, intrastate, or otherwise, is subject to the
7
jurisdiction of the courts of this state, whether or not the claim arises from that
activity." Section 48.193(2) "does not require connexity between a defendant's
activities and the cause of action." Camp Illahee Investors, Inc. v. Blackman, 870
So. 2d 80, 85 (Fla. 2d DCA 2003) (quoting Woods v. Nova Cos. Belize Ltd., 739
So. 2d 617, 620 (Fla. 4th DCA 1999)). And, "if the defendant's activities meet the
requirements of this section, the due process requirement of minimum contacts is
fulfilled." Id. (A. 6)
The district court then analyzed the "activity" of the Foreign Respondents in
the State of Florida, noting in "2007 the Schwartzberg Companies sent a letter to
the Agency for Health Care Administration (AHCA) stating, "[a]s you know, our
companies operate 17 facilities in Florida under the 'Palm Garden' and 'Palm
Terrace' trade names." The district court also reviewed the various documents
attached to the affidavit of Petitioner's expert, Victoria Fierro, CPA (these same
documents were filed with the trial court and reviewed during the evidentiary
hearing). Of note, the district court recognized that "Mr. Schwartzberg was a
member-manager of Medstar Consulting, LLC, a Delaware limited liability
company authorized to transact business in Florida.....Mr. Schwartzberg had
signed a $15,780 check to AHCA for the lease bond for another facility.." (A. 8-9)
Clearly the district court analyzed the Foreign Respondents entire "activity"
in Florida and ultimately held "[a]ppellants' only "activity" in Florida is their
8
indirect ownership interests in the nursing home's operating and management
companies and because, as discussed below, they are not engaged in the day-to-day
operations of the nursing home, we conclude that Ms. McCutchen did not establish
that the Appellants are engaged in substantial and not isolated activity in Florida.
Accordingly, Ms. McCutchen did not prove a basis for long-arm jurisdiction
against the Appellants under section 48.193(2)." (A. 15-16)
There is no conflict with other district courts, as the analysis utilized in
McCutchen has been repeatedly utilized in nursing home litigation. Greystone
Tribeca Acquisition, L.L.C. v. Ronstrom, 863 So. 2d 473 (Fla. 2d DCA 2004); Res.
Healthcare ofAm., Inc. v. McKinney, 940 So. 2d 1139 (Fla. 2d DCA 2006); Enic,
PLC v. F.F. South & Co., 870 So. 2d 888 (Fla. 5th DCA 2004); Hilltopper Holding
Corp. v. Estate of Cutchin, 955 So. 2d 598 (Fla. 2d DCA 2007); Extendicare, Inc.
v. Estate ofMcGillen, 957 So. 2d 58(Fla. 5th DCA 2007); Schwartzberg v. Estate
of Simoneau, 77 So. 3d 913, 914 (Fla. 1st DCA 2012). Specifically, mere
ownership of a subsidiary corporation by an out-of-state parent corporation, without
more, does not support a finding that long-arm jurisdiction exists. This is so even
where the parent was disclosed on state licensure filings. Extendicare v. Etstate of
McGillen, supra: see also, Greystone Tribeca Acquisitions LLC v. Rontrom, 863 So.
2d 473 (Fla. 2dDCA 2004).
9
CONCLUSION
As is shown above, there is no conflict for this Court to consider, as the
district court's analysis utilized in McCutchen has been repeatedly utilized in
nursing home litigation. For the reasons stated herein, the Foreign Respondents,
HARRIS SCHWARTZBERG; HARRIS SCHWARTZBERG TRUST; STEVEN
SCHWARTZBERG TRUST; JUDITH SCHWARTZBERG TRUST;
SCHWARTZBERG DESCENDANTS TRUST; HARRIS SCHWARTZBERG
2003 TRUST; STEVEN SCHWARTZBERG 2003 TRUST; HS MIDWEST
TRUST #1, JS MIDWEST TRUST; FAM MIDWEST TRUST; JUDITH
SCHWARTZBERG 2003 TRUST; HARRIS SCHWARTZBERG 2004 GST
TRUST 1; HARRIS SCHWARTZBERG 2004 GST TRUST 2; JUDITH
SCHWARTZBERG 2004 GST TRUST 1; JUDITH SCHWARTZBERG 2004
GST TRUST 2; SCHWARTZBERG FAMILY GST TRUST; SCHWARTZBERG
2004 DESCENDANTS TRUST; JS NATIONAL TRUST; HS NATIONAL
TRUST #1; HS NATIONAL TRUST #2; FAM NATIONAL TRUST, respectfully
request that the Court decline to exercise jurisdiction, if any such jurisdiction does
exist.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy hereof has been furnished via Email
to: Isaac Ruiz-Carus, Esq., Wilkes & McHugh, P.A., One North Dale Mabry Hwy.,
10
Suite 800, Tampa, FL 33609, [email protected];
[email protected]; [email protected]; on this day of
December, 2012.
MANCUSO & DIAS, P.A.Attorneys for Defendant5102 W. Laurel Street, Suite 700Tampa, FL 33607Phone: (813) 769-62 . 769-6281Email service: (pr a efile@ leg 1.net
BY:D TE M. SKOU LOS, ESQ.Florida Bar No.: 0782831
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing Jurisdictional Brief was typed in
Times New Roman 14 point font.
MANCUSO & DIAS, P.A.Attorney for RespondentsEmail service: (primary) [email protected] W. Laurel Street, Suite 700Tampa, FL 33607Phone: (813) 769-6280Fax: (813) 769-62
BYDANTE M. SKOURELLOS, ESQ.Florida Bar No.: 0782831
11
IN THE SUPREME COURT OF FLORIDA
THE ESTATE OF MATTIE MCCUTCHEN,by and through BETTY A. BROWN,Personal Representative,
Plaintiff/PetitionerCASE NO.: SCl2-2484
v. L.T. CASE NOS.: 2D11-2045
HARRIS SCHWARTZBERG TRUST,ET AL,
Defendants/Respondents.
APPENDIX TO RESPONDENTS' BRIEF ON JURISDICTION
Opinion of the Second District of Appeal dated June 22, 2012 in HarrisSchwartzberg, et al. v Betty A. Brown as Personal Representative ofthe Estate ofMattie McCutchen.
Dante M. Skourellos, EsquireFlorida Bar No.: [email protected] & Dias, P.A.5102 W. Laurel St., Suite 700Tampa, FL 33607(813) 769-6280(813) 769-6281 FaxAttorneys for Respondents
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARINGMOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
HARRIS SCHWARTZBERG; )HARRIS SCHWARTZBERG TRUST; )STEVEN SCHWARTZBERG TRUST; )JUDITH SCHWARTZBERG TRUST; )SCHWARTZBERG DESCENDANTS )TRUST; HARRIS SCHWARTZBERG )2003 TRUST; STEVEN SCHWARTZBERG )2003 TRUST; HS MIDWEST TRUST #1;JS MIDWEST TRUST; FAM MIDWESTTRUST: JUDITH SCHWARTZBERG 2003TRUST; HARRIS SCHWARTZBERG 2004GST TRUST 1; HARRISSCHWARTZBERG 2004 GST TRUST 2;JUDITH SCHWARTZBERG 2004 GSTTRUST 1; JUDITH SCHWARTZBERG2004 GTS TRUST 2; SCHWARTZBERGFAMILY 2004 GST TRUST;SCHWARTZBERG 2004 DECENDANTSTRUST; HS NATIONAL TRUST #1;JS NATIONAL TRUST; HS NATIONALTRUST #2; FAM NATIONAL TRUST;and MAXWELL STOLZBERG,
Appellants,
V.
BETTY A. BROWN, as PersonalRepresentative of the Estate ofMattie McCutchen, Deceased,
Appellee.
))))))))))))))))))) Case No.2D11-2045)))))))
Opinion filed June 22, 2012.
Appeal from the Circuit Court for HendryCounty; Nicholas R. Thompson, Judge.
Antonio A. Cifuentes and Daniel E. Dias ofMancuso & Dias, P.A., Tampa, forAppellants.
Isaac R. Ruiz-Carus of Wilkes & McHugh,P.A., Tampa, for Appellee.
CRENSHAW, Judge.
Harris Schwartzberg, Maxwell Stolzberg, and twenty trusts (the Trusts)
appeal the trial court's order denying their motions to dismiss for lack of personal
jurisdiction in pending nursing home litigation. Because we conclude that Betty A.
Brown, as the personal representative of the Estate of Mattie McCutchen, deceased,
failed to establish a basis for personal jurisdiction over Schwartzberg, Stolzberg, and
the Trusts, we reverse.
To obtain personal jurisdiction over a nonresident defendant, a plaintiff
must allege "'sufficient jurisdictional facts to bring the action within the ambit of (section
48.193]; and if it does, the next inquiry is whether sufficient "minimum contacts" are
demonstrated to satisfy due process requirements.' " Venetian Salami Co. v.
Parthenais, 554 So. 2d 499, 502 (Fla. 1989) (quoting Unger v. Publisher Entry Serv.,
Inc., 513 So. 2d 674, 675 (Fla. 5th DCA 1987)); see also Hilltopper Holding Corp. v.
Estate of Cutchin, 955 So. 2d 598, 601 (Fla. 2d DCA 2007). The second prong
"requires the court to determine whether the defendant has availed itself of the privilege
of doing business in Florida or has committed acts with an effect in Florida such that it
would anticipate being haled into Florida's courts." Hilltopper Holding Corp., 955 So. 2d
- 2 -
at 601. If the plaintiff sufficiently pleads personal jurisdiction, the defendant challenging
personal jurisdiction "must provide admissible evidence that refutes the essential
jurisdictional facts set forth in the plaintiff's complaint. . . . If a defendant fully refutes the
jurisdictional allegations, then the burden shifts back to the plaintiff to prove the basis for
jurisdiction." Kitroser v. Hurt, 85 So. 3d 1084, 1087 (Fla. 2012) (citing Venetian Salami
Co., 554 So. 2d at 502) (citation omitted). Our review of a trial court's ruling on a motion
to dismiss for lack of personal jurisdiction over a nonresident defendant is de novo.
Wendt v. Horowitz, 822 So. 2d 1252, 1256 (Fla. 2002); Res. Healthcare of Am., Inc. v.
McKinney, 940 So. 2d 1139, 1140 (Fla. 2d DCA 2006).
Brown filed an action against Schwartzberg, Stolzberg, and the Trusts in
November 2009, alleging that they committed several tortious acts against McCutchen
between October 1, 2008, and December 9, 2008, while she resided at a nursing home
known as the Palm Terrace of Clewiston. Schwartzberg, Stolzberg, and the Trusts
moved to dismiss the complaint against them for lack of personal jurisdiction. In support
of their motions, Schwartzberg and Stolzberg attached affidavits attesting that they were
New York residents who did not maintain an office, employ any person, have an agent
for service of process, incur or pay taxes, or control, operate, manage, or consult with
nursing homes within Florida. A collective trustee of the twenty Trusts provided a
similar affidavit, attesting that the Trusts were created and registered in New York, were
not authorized to do business in Florida, and did not maintain an office, employ any
person, have an agent for service of process, incur or pay taxes, or control, operate,
manage, or consult with any nursing homes within the state.
- 3 -
In response to these affidavits, Brown filed an opposing affidavit from
Victoria Fierro, a Certified Public Accountant specializing in health care finance. After
reviewing several public records relating to the business operations of the Palm Terrace
of Clewiston, Fierro concluded that Schwartzberg, Stolzberg, and the Trusts were
engaged in the owning, operating, and managing of the nursing home facility. Fierro
then attached these various public records in support of her affidavit. After conducting a
hearing on Schwartzberg's, Stolzberg's, and the Trusts' dismissai motions, the trial court
determined that Fierro's opposing affidavit and accompanying attachments were
sufficient to show that the parties were involved in more than just a simple ownership
interest subjecting them to personal jurisdiction. We disagree based on this court's
recent holding in Schwartzberg v. Knobloch, 37 Fla. L. Weekly D1165 (Fla. 2d DCA May
16, 2012).
Knobloch involved the same appellants as this case, and the decedent's
estate alleged substantially the same complaints against Schwartzberg, Stolzberg, and
the Trusts. Although Knobloch concerned nursing home litigation against the Palm
Terrace of Lakeland and our case concerns the Palm Terrace of Clewiston, Fierro's
attachments show that the sister facilities share the same ownership and the same
corporate structure. See Knobloch, 37 Fla. L. Weekly at D1166 (discussing the tiers of
Palm Terrace of Lakeland's organizational structure). This court examined Knobloch's
complaint, Schwartzberg's, Stolzberg's, and the Trusts' affidavits, and Fierro's affidavit
and attachments and concluded that
Ms. Knobloch established only that the Appellants haveindirect ownership interests in the nursing home's operatingand management companies. But nothing about theAppellants' financial interests in the nursing home is related
- 4 -
in any way to Ms. Knobloch's claims. Ms. Knobloch hasfailed to establish any connexity between the Appellants'financial interests in the nursing home and the alleged abusefrom which her claims arise.
lj;L at D1168. Accordingly, this court reversed the trial court's determination with
directions to grant Schwartzberg's, Stolzberg's, and the Trusts' motions to dismiss. Id.;
see also Schwartzberg v. Estate of Simoneau, 77 So. 3d 913, 914 (Fla. 1st DCA 2012)
(summarily concluding that the trial court erred in denying the appellants' motions to
dismiss for lack of personal jurisdiction). We hereby adopt this court's reasoning in
Knobloch.
Upon reviewing the record, we conclude that Brown adequately pleaded
a basis for personal jurisdiction over Schwartzberg, Stolzberg, and the Trusts in her
complaint pursuant to section 48.193, Florida Statutes (2009). See Rand v. Hallmark of
Hollywood Condo. Ass'n, 555 So. 2d 1230, 1231 (Fla. 4th DCA 1989) ("A complaint
which alleges long-arm jurisdiction by tracking the language of the statute does not
require further pleading of facts to support the exercise of jurisdiction unless
controverted by a motion to dismiss and supporting documentation tending to evidence
the jurisdictional allegations are untrue."). We similarly conclude that Schwartzberg's,
Stolzberg's, and the Trusts' affidavits fully refuted Brown's jurisdictional allegations.'
However, like in Knobloch, we hold that Brown simply failed to establish a basis for
personal jurisdiction in response to their affidavits.
The attachments to Fierro's affidavit in this case-consisting of indirect
knowledge of the Palm Terrace of Clewiston's operations based, in part, on copies of
We reach this conclusion despite several glaring scrivener's errors inSchwartzberg's, Stolzberg's, and the Trusts' affidavits.
- 5 -
licensures applications, "controlling interest" affidavits, and cost reports-are nearly
identical to those in Knobloch.2 Although the attachments show that Schwartzberg,
Stolzberg, and the Trusts had an ownership interest in the Palm Terrace of Clewiston,
"such ownership, without more, is insufficient to establish personal jurisdiction over a
nonresident defendant." Knobloch, 37 Fla. L. Weekly at D1168 (citing Hilltopper
Holdina Corp., 955 So. 2d at 603). Thus, Brown failed to establish any connection
between Schwartzberg's, Stolzberg's, and the Trusts' financial interests and the alleged
harm committed against McCutchen or that they had maintained sufficient minimum
contacts with the state. See id. The trial court therefore erred by ruling that it had
personal jurisdiction over Schwartzberg, Stolzberg, and the Trusts, and we reverse. On
remand, the trial court is directed to grant their motions to dismiss.
Reversed and remanded with directions.
VILLANTI and LaROSE, JJ., Concur.
2We have the benefit of an additional attachment; a February 2004 copy ofthe articles of organization for SA-Ciewiston, LLC. However, this attachment, like theother attachments, merely indicates that Schwartzberg, Stolzberg, and the Trusts wereindirectly involved with the operation and management of the Palm Terrace ofClewiston.
- 6 -