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.: 0782831efile@mdlegal.netMancuso & 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, iruiz-carus@wilkesmchugh.com;

tpairestaff@wilkesmchugh.com; fl@wilkesmchugh.com; 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) efile@mdlegal.net5102 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.: 0782831efile@mdlegal.netMancuso & 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.

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