IN THE SUPREME COURT OF FLORIDA 6 Case No. SC v. 2d DCA Case No. 2D L.T. Case No. 09-CA-7388 JURISDICTIONAL BRIEF OF RESPONDENTS

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1 IN THE SUPREME COURT OF FLORIDA 6 Case No. SC THE ESTATE OF EUGENE MCNEAL, ET AL., Petitioner v. 2d DCA Case No. 2D L.T. Case No. 09-CA-7388 HARRIS SCHWARTZBERG TRUST, ET AL., Respondents. / JURISDICTIONAL BRIEF OF RESPONDENTS Dante M. Skourellos, Esquire Florida Bar No.: Law Offices of Dante M. Skourellos 2002 N. Lois Avenue, Suite 610 Tampa, Florida dskourellos@henavigator.net Attorney for Respondents

2 TABLE OF CONTENTS Pays 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 this Court's precedent in Venetian Salami 4 II. The district court's opinion properly applied this Court's precedent on general jurisdiction...7 Conclusion...10 Certificate of Service Certificate of Compliance

3 TABLE OF AUTHORITIES Cases Camp 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 ofmcgillen 957 So. 2d 58(Fla. 5th DCA 2007)...9 Greystone Tribeca Acquisition, L.L.C. v. Ronstrom 863 So. 2d 473 (Fla. 2d DCA 2004)...9 Harris Schwartzberg Trust, et al. v. Estate ofmccutchen 2012 Fla. App. LEXIS (Fla. 2d DCA June 22, 2012)...3,4,9,10 Harris Schwartzberg Trust, et al. v. Estate ofsimoneau 77 So. 3d 913 (Fla. 1st DCA 2012)...3,4,9 Harris Schwartzberg Trust, et al. v. Estate of Walker 2012 Fla. App. LEXIS (Fla. 2d DCA Oct. 17, 2012)...34 Harris Schwartzberg, et. al v. Kim Knobloch 2012 Fla. App. LEXIS 7829 (Fla. 2d DCA 2012)...3,7 Hilltopper Holding Corp. v. Estate ofcutchin 955 So. 2d 598 (Fla. 2d DCA 2007)...7,9 International Shoe Co. v. Washington 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)...5 Madonna v. Gaynor 95 So. 3d 990 (Fla. 2d DCA 2012)...6 Res. Healthcare ofam., Inc. v. McKinney 940 So. 2d 1139 (Fla. 2d DCA 2006)...9 Venetian Salami Co. v. J S. Parthenais 554 So. 2d 499, 503 (Fla. 1989)...3,4,5,6,7 Walt Disney Co. v. Nelson 677 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 (2)... 7,8 Ill

4 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. Mr. McCutchen was a resident at Palm Terrace of Lakeland (the "Nursing Home") from February 2008 through April (the "Residency"). 1

5 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. Mr. 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

6 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 an evidentiary hearing on April 21, 2011 required by Venetian Salami Co. v. J.S. Parthenais, 554 So. 2d 499, 503 (Fla. 1989), (emphasis added). The trial court issued its Order denying Defendants' Motion to Dismiss for Lack of Personal Jurisdiction on June 14, 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 ofthe 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. LEXTS (Fla. 2d DCA September 7, 2012); Harris Schwartzberg Trust, et al. v. Estate of Walker, 2012 Fla. App. LEXTS (Fla. 2d DCA October 17, 2012). Moreover, in 2012, 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 DCA 3

7 2012). Plaintiffs in the Knobloch, McCutchen, McNeal, 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 an evidentiary hearing conducted by the trial court on April 21, The trial court did conduct an 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 denied Petitioner's Motion for Rehearing. ARGUMENT I. The district court's opinion properly applied this Court's precedent in 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, 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 4

8 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. On April 21, 2011, the trial court held a limited evidentiary hearing on the various Motions to Dismiss for Lack of Personal Jurisdiction as required by 5

9 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 definition, 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 Trusts had an ownership interest in the Palm Terrace of Clewiston, "such ownership, without more, is insufficient to establish personal jurisdiction over a 6

10 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 April 21, 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 precedent on 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 (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 jurisdiction of the courts of this state, whether or not the claim arises from that activity." Section (2) "does not require connexity between a defendant's 7

11 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. 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.." Clearly the district court analyzed the Foreign Respondents entire "activity" in Florida and ultimately held "[a]ppellants' only "activity" in Florida is their 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 8

12 operations of the nursing home, we conclude that Mr. McCutchen did not establish that the Appellants are engaged in substantial and not isolated activity in Florida. Accordingly, Mr. McCutchen did not prove a basis for long-arm jurisdiction against the Appellants under section (2)." 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 fmding 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. 2d DCA 2004). 9

13 CONCLUSION As is shown above, there is no conflict for this Court to consider, as the district court's analysis utilized in Walker 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 to: Isaac Ruiz-Carus, Esq., Wilkes & McHugh, P.A., One North Dale Mabry Hwy., 10

14 Suite 800, Tampa, FL 33609, on this / day of February, LAW OFFICES OF DANTE M. SKOURELLOS Attorney for Respondents 2002 N. Lois Avenue, Suite 610 Tampa, FL Phone: (813) ) service: ator.net B DANTE M. SKOURELLOS, ESQ. Florida Bar No.: CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing was typed in Times New Roman 14 point font. LAW OFFICES OF DANTE M. SKOURELLOS Attorney for Respondents 2002 N. Lois Avenue, Suite 610 Tampa, FL Phone: (813) Fax: (813) service: dskourellos henavigator.net BY: DANTE M. SKOÚllELLOS, ESQ. Florida Bar No.: