Extra Inning Dynasty Trust Answer Brief (Fla. 4th DCA)

8/10/2019 Extra Inning Dynasty Trust Answer Brief (Fla. 4th DCA)

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFOURTH DISTRICT

CASE NO. 4D11-1160LOWER CASE NO.: 10-42329 (19)

JOSEPH W. SPARVERI, JR., andKOSTIN, RUFFKESS & COMPANY,LLC,

Appellants,

v.

ANTHONY DEGENNARO, as Trusteeof the EXTRA INNING DYNASTYTRUST,

Appellee.

_______________________________/

ANSWER BRIEF OF ANTHONY DEGENNARO, AS TRUSTEE OF THE

EXTRA INNING DYNASTY TRUST

DANIEL S. WEINGER, ESQ.CONRAD & SCHERER, LLPAttorneys for Appellant

P. O. Box 14723Fort Lauderdale, FL 33302Tel: (954) 462-5500Fax: (954) 463-9244


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Table of Contents

Table of Contents ............................................................................................ ii

Table of Authorities ....................................................................................... iii

Points on Appeal ............................................................................................ vi

Preface ............................................................................................................ 1

Statement of Case and Facts ........................................................................... 2

Summary of Argument ................................................................................... 8

Argument ...................................................................................................... 11

I. Standard of Review ............................................................................ 11

II. The Trial Court Correctly Found That Appellees AllegationsSatisfy Jurisdiction Under Floridas Long-Arm Statute ........................... 11

A. Appellants Failed to Meet Their Burden of Contesting the

Jurisdictional Allegations of the Amended Complaint ......................... 12

B. Appellee Sufficiently Alleges that Appellants Committed a TortiousAct Within the State .............................................................................. 15

III. Plaintiffs Allegations Satisfy the Due Process Requirements of theUnited States Constitution ........................................................................ 27

A. Appellants Actions Satisfy the Test for Minimum Contacts .......... 27B. Floridas Assertion of Jurisdiction Over Appellants Comports withFair Play and Substantial Justice .......................................................... 33

Conclusion .................................................................................................... 38

Certificate of Service .................................................................................... 39

Certificate of Type Size and Style ................................................................ 39


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Table of Authorities

Cases

Acquadro v. Bergeron,851 So. 2d 665 (Fla. 2003) ........................................................... 12, 13, 16

Blaw-Knox Food & Chem. Equip. Corp. v. Holmes,348 So. 2d 604 (Fla. 4th DCA 1977) ........................................................ 21

Brito v. County of Palm Beach,

753 So. 2d 109 (Fla. 4th DCA 1998) ........................................................ 21

Burger King Corp. v. Rudzewicz,471 U.S. 462 (1985) ........................................................................... passim

Burger King Corp. v. Rudzewicz,724 F.2d 1505 (11th Cir. 1984) ................................................................ 31

Deloitte & Touche v. Gencor Industries, Inc.,929 So. 2d 678 (Fla. 5th DCA 2006) .................................................. 19, 26

Emerson v. Cole,847 So.2d 606 (Fla. 2d DCA 2003) .......................................................... 14

Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co.,752 So. 2d 582 (Fla. 2000) ....................................................................... 11

Gahn v. Holiday Prop. Bond, Ltd.,826 So.2d 423 (Fla. 2d DCA 2002) .......................................................... 13

Georgia Insurers Insolvency Pool v. Brewer,602 So.2d 1264 (Fla. 1992) ...................................................................... 27

Gerber Trade Fin., Inc. v. Bayou Dock Seafood Co.,917 So.2d 964 (Fla. 3d DCA 2005) .............................................. 13, 18, 28

Ginsberg v. Lennar Florida Holdings, Inc.,645 So.2d 490 (Fla. 3d DCA 1994) .......................................................... 24

Godfrey v. Neumann,373 So. 2d 920 (Fla. 1979) ................................................................. 28, 29

Harrell v. Branson,344 So. 2d 604 (Fla. 1st DCA 1977) ........................................................ 26

Hou v. United Airlines Corp.2006 WL 2884963 .................................................................................... 17


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Ileyac Shipping, Ltd. v. Riera-Gomez,899 So. 2d 1230 (Fla. 3d DCA 2005) ....................................................... 28

Indus., Inc. v. Carter,834 So. 2d 362 (Fla. 5th DCA 2003) ........................................................ 20

International Shoe Company v. Washington,326 U.S. 310 (1946) ............................................................................ 27, 28

Internet Solutions Corp. v. Marshall,

39 So.3d 1201 (Fla. 2010) ........................................................................ 17

Koock v. Sugar & Felsenthal LLP,2010 U.S. Dist. LEXIS 38004 (M.D. Fla. March 25, 2010) ..................... 19

Krilich v. Wolcott,717 So. 2d 582 (Fla. 4th DCA 1998) ........................................................ 28

Kulko v. California Superior Court,436 U.S. 84 (1978) .................................................................................... 29

Lampe v. Hoyne,652 So.2d 424 (Fla. 2d DCA 1995) .......................................................... 13

Machtinger v. Inertial Airline Servs., Inc.,937 So. 2d 730 (Fla. 3d DCA 2006) ......................................................... 20

Madara v. Hall,916 F.2d 1510 (11th Cir. 1990) ................................................................ 34

Marathon Metallic, Building Co. v. Mountain Empire Construction Co.,853 F.2d 921 (11th Cir. 1981) .................................................................. 31

Morris v. Atchity,2009 WL 463971 (C.D. Cal. Jan. 13, 2009) ............................................. 31

OSI Indus., Inc. v. Carter,834 So.2d 362 (Fla. 5th DCA 2003) ............................................. 17, 18, 20

Robinson v. Giarmarco & Bill, P.C.,74 F.3d 253 (11th Cir. 1996) .................................................................... 32

Seabra v. Int'l Specialty Imports, Inc.,869 So. 2d 732 (Fla. 4th DCA 2004) ........................................................ 11

Silver v. Levinson,648 So. 2d 240 (Fla. 4th DCA 1994) ........................................................ 32

Thorpe v. Gelbwaks,

953 So. 2d 606 (Fla. 5th DCA 2007) ........................................................ 20


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Venetian Salami Co. v. Parthenais,554 So. 2d 499 (Fla. 1989) ................................................................ passim

Walter Lorenz Surgical, Inc. v. Teague,721 So. 2d 358 (Fla. 1st DCA 1998) ........................................................ 20

Wendt v. Horowitz,822 So. 2d 1252 (Fla. 2002) ......................................................... 11, 16, 17

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) .................................................................................. 27

XL Vision, LLC. v. Holloway,856 So.2d 1063 (Fla. 5th DCA 2003) ....................................................... 13

Statutes

Fla. Stat 48.193 ................................................................................... passim

Rules

Fla. R. App. P. 9.130(a)(3)(C)(i) .................................................................... 1


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vi

Points on Appeal

WHETHER THE TRIAL COURT COMMITTED

REVERSIBLE ERROR BY FINDING PERSONAL

JURISDICTION OVER APPELLANTS UNDER

BOTH FLORIDAS LONG ARM STATUTE AND

THE DUE PROCESS CLAUSE OF THE UNITED

STATES CONSTITUTION


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Preface

This Answer Brief is submitted on behalf of ANTHONY DEGENNARO, as

Trustee of the EXTRA INNING DYNASTY TRUST, Plaintiff below.

JOSEPH W. SPARVERI, JR., and KOSTIN, RUFFKESS & COMPANY,

LLC, have appealed, pursuant to Fla. R. App. P. 9.130(a)(3)(C)(i), the non-final

order of the trial court denying their motion to dismiss for lack of personal

jurisdiction.

JOSEPH W. SPARVERI, JR., is referred to as Appellant or by his proper

name.

KOSTIN, RUFFKESS & COMPANY, LLC, is referred to as Appellant or

Kostin.

ANTHONY DEGENNARO, as Trustee of the EXTRA INNING

DYNASTY TRUST, is referred to as the Trust, Appellee, or Plaintiff.

The following symbols will be used:

I.B. ___ references are to the Initial Brief of Appellants.

App. ___ references are to the Appendix to the Initial Brief of Appellants.

Unless otherwise indicated, all emphasis is supplied by the writer.


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Statement of Case and Facts1

A. General Background:

Joseph Sparveri is a licensed certified public accountant and registered

investment advisor for Kostin, Ruffkess & Company, LLC. (App. p. 28.) For

several years Sparveri, a resident of Connecticut, and Kostin, a limited liability

company based in Connecticut, have provided a wide variety of professional

services to Carl Pavano, a resident of Florida. (App. pp. 29, 31.) Pavano is a

Major League Baseball player who frequently travels, leaving him limited time for

managing his finances. (Id.) As a result, Pavano came to rely upon Sparveri and

Kostin to perform certain critical tasks on his and his familys behalf including, but

not limited to, paying his monthly bills, tax preparation, managing assets,

performing accounting services, offering investment advice and management, and

providing other concierge-like amenities. (App. pp. 29.)

In June of 2007, Pavano entered into an agreement for the creation of the

Pavano Dynasty Trust (the Trust Agreement), for which Pavano was the

Grantor/Settlor. 2 (App. pp. 31, 58.) Pursuant to the Trust Agreement, Pavano

1Unless otherwise stated, all facts in this section are taken from the allegations of the AmendedComplaint, or the documents attached thereto, which were taken as true in the trial courtsconsideration of Appellants Renewed Motion to Dismiss.

2 The Extra Inning Dynasty Trust is the successor in interest to the Pavano Dynasty Trust.Appellee in the instant case is Anthony DeGennaro, as co-trustee of the Extra Inning DynastyTrust. For clarity purposes, because the distinction between the Extra Inning Trust and the


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appointed Sparveri, his financial advisor, as co-trustee, along with Pavanos

mother and sister. (App. pp. 28, 58.). The Trust Agreement provides that it shall

be governed by the laws of Florida. (App. p. 85.) The Trust Agreement also

provides for a method by which the Co-Trustees could delegate to any one Trustee

the right to exercise any discretionary power. (App. pp. 85, 90.) However, that

delegation could be revoked by the Co-Trustees at any time. (Id.) The Trust

Agreement further provides that the decisions of a Trustee acting with such

discretionary authority are reviewable by a court, which should consider Pavanos

intent before reversing any such decision. (App. p. 72.) Shortly after the creation

of the Trust, Sparveri and his co-trustees entered into a Delegation Agreement (the

Delegation), delegating to Sparveri the authority to undertake certain

discretionary functions until such time as the Delegation might be revoked. (App.

pp. 85, 101-03.)

B. The Banyon Investment:

In mid-2008, Sparveri first learned of an investment opportunity in Florida

through a company named Banyon 1030-32 (Banyon) that was raising capital to

purchase structured settlement proceeds at a discount. (App. p. 38.) On or about

July 18, 2008, Sparveri received copies of Banyons most recent balance sheet and

profit and loss statement showing total assets in excess of $135,000,000.00. (App.

Pavano Dynasty Trust is irrelevant to the issues presented in this Appeal, they will beconsidered as one and the same for the remainder of this Brief.


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p. 38.) At the same time, Sparveri also received a copy of a seventeen page power

point presentation prepared by Banyon entitled A High Yield Low Risk Activist

Investment Strategy. (Id.) Banyon made several material representations within

this presentation: (1) each investment is secured by a promissory note valued at not

less than 130% of the settlement face value; (2) each investment is backed by a

personal guarantee by Banyons principal; (3) the settlement is fully funded by the

putative defendant prior to investing; (4) the prefunded settlement proceeds are

escrowed in a special purpose trust account held by the putative plaintiffs attorney

as trustee; (5) the special purpose trust account has a dual signature requirement for

any withdrawal, one of which is always a Banyon representative; (6) as a means of

risk mitigation, the investor would have claw backs in Assignments that will

allow Banyon to attach assets in case of violation; and (7) as of June 1, 2008,

Banyon had funded settlements with a face value in excess of $200,000,000.00.

(App. pp. 38-39.)

Within days of receiving the Banyon marketing materials, and without the

benefit of any further due diligence investigation, Sparveri presented the Banyon

opportunity to Pavano, touting the investment as low-risk, safe, and secure. (App.

p. 39.) In addition to adopting the foregoing representations of Banyon, Sparveri

further represented to Pavano that the investment had been thoroughly vetted,

that the reputations of the principals involved were impeccable, and that the


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precautionary controls in place made the investment ultra-secure. (Id.) In

adopting, distributing, and promoting Banyons materials and representations,

Sparveri made it clear, despite never conducting any independent due diligence,

that the investment was a winner and although it seemed too good to be true, it

all checked out. (Id.)

Over the next eight months, Sparveri had multiple telephone conversations

with Pavano in which he continued to extol the virtues of the investment, re-

emphasized the level of due diligence undertaken, and stressed the profits already

made by Banyon. (App. pp. 39-40.) The majority of Sparveris representations to

Pavano were made while Pavano was in Florida. (App. p. 30.) These

representations were both over the telephone and through other means, such as

email. (App. pp. 33-34.)

Based upon Sparveris representations, between August 2008 and April

2009, Pavano authorized $7,000,000.00 to be invested into Banyon, electing to use

the Trust fund as the vehicle by which to make the investments. (App. p. 40.) As

it turns out, Banyon was actually an unregistered feeder fund responsible for

recklessly funneling millions of dollars into a billion dollar Ponzi scheme being

run by Scott Rothstein. (App. p. 30.) Contrary to Sparveris material

representations that the investment was thoroughly vetted, that the risk-

mitigation controls virtually eliminated risk, and that the deal structure was legal


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and verifiable, neither Sparveri nor Kostin performed any independent due

diligence. (App. p. 40.) In fact, Sparveris purported due diligence investigation

bore no resemblance whatsoever to the detailed, thorough, and comprehensive

investigation promised in his various representations. (Id.) Rather, Sparveri only

undertook a cursory review of Banyons marketing materials, essentially taking

Banyons representations at face value.3 (App. pp. 40-41, 43.) After the fraud was

revealed, Sparveri sent an apology e-mail to Pavano admitting his negligence and

deep sorrow that he let everyone down on this. (App. p. 45.)

Because the investment into Banyon was made through the Trust, Anthony

DeGennaro,4 as trustee, brought a lawsuit against Sparveri and Kostin alleging

breach of fiduciary duty, professional negligence, and violations of state investor

laws. (App. p. 28.) Each of the causes of action was wholly or partially based on

the allegations concerning Sparveris misrepresentations to Pavano. (App. pp. 46-

57.) In response to Appellees Amended Complaint, Sparveri and Kostin filed a

Renewed Motion to Dismiss based on lack of personal jurisdiction. (App. p. 144.)

C. Appellees Uncontested Allegations of Personal Jurisdiction:

Pursuant to the procedure outlined in Venetian Salami Co. v. Parthenais,

554 So. 2d 499 (Fla. 1989), Appellants submitted the affidavit of Joseph Sparveri

3 The specific red flags that a properly conducted due diligence investigation would haverevealed are set forth in the Amended Complaint but omitted here in that such allegations areirrelevant to deciding the personal jurisdiction issue before this Court.

4DeGennaro replaced Sparveri as trustee after the fraud was revealed.


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to contest personal jurisdiction. (App. p. 104.) Sparveri does not, however, deny

the allegations in the Amended Complaint that over an eight month period in 2008

and 2009, he directed repeated telephonic and email communications to Pavano,

while Pavano was in Florida, in which Sparveri touted the investment, forwarded

Banyon marketing materials, and reaffirmed his performance of due diligence.

(App. pp. 104-107.) Additionally, Sparveri failed to assert that he was not required

to obtain Pavanos approval before making an investment on behalf of the Trust,

nor that he ever made any investment decision without first consulting with

Pavano. (Id.) Instead, as the sole basis for contesting jurisdiction, Sparveri simply

claimed that he was physically present in Connecticut when he made the mental

decision to invest in Banyon. (App. p. 105.)

In response, Pavano filed his own affidavit, shedding further light on the

jurisdictional allegations of the Amended Complaint. (App. pp. 108-113.)

Specifically, Pavano asserts that between October 2008 and February 2009, while

in Florida during the baseball offseason, he received numerous telephone calls and

emails from Sparveri who extolled the virtues of the investment, reemphasized the

due diligence already undertaken, and made promises including, inter alia, of

unlimited FDIC insurance and a dollar for dollar personal guaranty by Banyon

principal George Levin. (App. pp. 110-11.) Pavano further alleged that Sparveri

also sent him additional documentation containing the same representations,


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including Banyon marketing and investment materials. (App. p. 111.) On some

occasions, these materials were mailed directly to Pavanos Florida home, while on

other occasions they were sent by email and received while Pavano was in Florida.

(Id.) Significantly, it was only after considering Sparveris representations and

making the decision to invest that Pavano directed Sparveri to use Trust funds to

make the investment. (App. pp. 110-11.) Finally, Pavano states in no uncertain

terms that although, based on Sparveris credentials, he named Sparveri as Trustee,

Sparveri knew that he was to consult with Pavano before making any investment

decision and in fact never made any such decision without first obtaining Pavanos

consent. (App. p. 112.) Had Sparveri acted contrary to these instructions, he

would have been removed as Co-Trustee. (Id.)

D. Statement of the Case

On February 18, 2011, the trial court conducted a hearing on Appellants

Renewed Motion to Dismiss. (App. pp. 114-143.) Shortly thereafter, on March 2,

2011, the trial court entered an order denying Appellants Renewed Motion to

Dismiss. (App. p. 144.) This appeal follows.

Summary of Argument

The trial court correctly found that personal jurisdiction over Appellants was

appropriate under both Floridas long-arm statute as well as under principles of due

process. As for personal jurisdiction under Floridas long-arm statute, Appellants


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failed to meet their burden of contesting the jurisdictional allegations of the

Amended Complaint. A defendant wishing to contest the jurisdictional allegations

of a complaint must file a supporting affidavit. If the affidavit sufficiently

challenges the jurisdictional allegations, the burden shifts to the plaintiff to rebut

the challenge by introducing an affidavit of his own. However, if the defendant

does not fully dispute the jurisdictional facts, the burden never shifts and the

motion must be denied. Critically, the test is not the merits of the underlying

claim, but the facial sufficiency of the jurisdictional allegations in the pleading.

Florida case law unequivocally provides that tortious acts that are committed

in Florida, both telephonically and electronically, satisfy the requirements of

Floridas long-arm statute. Sparveris affidavit does not deny or controvert that he

made a series of telephonic, electronic, and written misrepresentations into Florida

and directed at a Florida resident. The Amended Complaint successfully invokes

personal jurisdiction under Floridas long-arm statute based on the uncontested

allegations of tortious conduct directed at the State of Florida.

Appellees allegations also satisfy the due process requirements of the

United States Constitution. Before a defendant can be subject to personal

jurisdiction, he must have certain minimum contacts within the forum such that the

maintenance of the suit does not offend traditional notions of fair play and

substantial justice. It is well established that allegations of the commission of a


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tort in the subject jurisdiction are, in and of themselves, sufficient to establish

minimum contacts. Even if this were not the case, however, the allegations of the

Amended Complaint sufficiently show minimum contacts by Appellants because

the alleged contacts relate to the causes of action, Appellants purposefully availed

themselves of the privilege of conducting activities within Florida, and Appellants

contacts were such that they should have reasonably anticipated being haled into a

Florida court.

After a court concludes that a defendants minimum contacts with a forum

are such that he should reasonably anticipate being haled into court there, the next

step is the determination of whether exerting personal jurisdiction comports with

fair play and substantial justice. All of these additional factors support jurisdiction

in Florida, including, the burden on Appellants in defending the lawsuit; Floridas

interest in adjudicating the dispute; Appellees interest in obtaining convenient and

effective relief; the interstate judicial system's interest in obtaining the most

efficient resolution of controversies; and the shared interest of the states in

furthering fundamental substantive social policies.


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Argument

I. STANDARD OF REVIEW

The standard of review from a non-final order ruling on a motion to dismiss

for lack of personal jurisdiction is de novo. Wendt v. Horowitz, 822 So. 2d 1252,

1256 (Fla. 2002); Seabra v. Int'l Specialty Imports, Inc., 869 So. 2d 732, 733 (Fla.

4th DCA 2004).

II. THE TRIAL COURT CORRECTLY FOUND

THAT APPELLEES ALLEGATIONS SATISFY

JURISDICTION UNDER FLORIDAS LONG ARM

STATUTE

Whether a non-resident defendant is subject to personal jurisdiction in

Florida is governed by Florida Statute section 48.193, Floridas long-arm statute,

and the Due Process Clause of the United States Constitution. The Florida

Supreme Court has set forth a two-step inquiry to determine if personal jurisdiction

in Florida is proper: First, it must be determined that the complaint alleges

sufficient jurisdictional facts to bring the action within the ambit of the statute; and

if it does, the next inquiry is whether sufficient minimum contacts are

demonstrated to satisfy due process requirements. Wendt v. Horowitz, 822 So.2d

1252, 1257 (Fla. 2002) (quotingExecu-Tech Bus. Sys., Inc. v. New Oji Paper Co.,

752 So. 2d 582, 584 (Fla. 2000)). Plaintiffs allegations regarding Sparveris

conduct in the instant case satisfy both requirements.


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A. Appellants Failed to Meet Their Burden of

Contesting the Jurisdictional Allegations of the

Amended Complaint

In Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), the Court

outlined the appropriate procedure a defendant must follow when contesting

personal jurisdiction. A defendant wishing to contest the allegations of the

complaint concerning jurisdiction or to raise a contention of minimum contacts

must file affidavits in support of his position. The burden is then placed upon the

plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.

Id. at 502-03. To be legally sufficient, the defendants affidavit must contain

factual allegations which, if taken as true,show that the defendants conduct does

not subject him to jurisdiction. Acquadro v. Bergeron,851 So.2d 665, 672 (Fla.

2003). At this stage, the defendants affidavit must contest only the actual

jurisdictional facts--not the ultimate allegations of the complaint. Acquadro,851

So.2d at 669 (noting that the purpose of the evidentiary hearing on jurisdiction was

not to resolve whether the defendants committed tortious acts in the state but only

whether they committed acts that would subject them to jurisdiction if proven to be

true).

It is only after the defendant submits an affidavit that sufficiently challenges

the plaintiffs jurisdictional allegations that the burden shifts to the plaintiff to

rebut the challenge by introducing affidavits of his own. However, if the defendant


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does not fully dispute the jurisdictional facts, the burden never shifts and the

motion must be denied. See Acquadro,851 So.2d 665 (holding that because the

defendants affidavits did not deny that the telephone communication, which

was the basis of personal jurisdiction, had occurred, the trial court correctly

denied the motion to dismiss.) (emphasis added); Gerber Trade Fin., Inc. v.

Bayou Dock Seafood Co.,917 So.2d 964 (Fla. 3d DCA 2005) (holding that when

the defendants affidavit admitted that it had possession of the disputed goods but

denied that its possession was improper, the affidavit did not contest the basis for

jurisdiction and therefore the motion to dismiss should have been denied); XL

Vision, LLC. v. Holloway,856 So.2d 1063 (Fla. 5th DCA 2003) (holding that when

the defendants affidavit denied that he personally did business in Florida but did

not denythat he operated a business in Florida through an alter ego, the affidavit

did not fully contest the jurisdictional allegations and the motion to dismiss was

properly denied). See also Gahn v. Holiday Prop. Bond, Ltd.,826 So.2d 423, 427

(Fla. 2d DCA 2002) (When a foreign defendant challenges personal jurisdiction

by sworn statement, the burden of establishing jurisdiction is only shifted to the

plaintiff if the affidavit contests the factual basis of long-arm jurisdiction asserted

in the complaint.); Lampe v. Hoyne, 652 So.2d 424, 426 (Fla. 2d DCA 1995)

(noting that a plaintiff is excused from filing an opposing affidavit only when the

defendants affidavit does not sufficiently refute the jurisdictional allegations).


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In the instant case, Sparveris affidavit does not deny or controvert the most

critical jurisdictional facts upon which Floridas long-arm jurisdiction is premised;

namely, that there was a series of telephonic, electronic, and written negligent

misrepresentations made by Sparveri into this jurisdiction and directed at a Florida

resident. Appellants wholesale failure to refute these critical jurisdictional

allegations means that the burden never even shifted to Appellee to provide an

affidavit. Appellee was therefore entitled to rest on the uncontroverted allegations

in defeating the motion to dismiss. See Emerson v. Cole, 847 So.2d 606, 609 (Fla.

2d DCA 2003). With this in mind, Appellants misguided contention that the trial

court should have focused on whether the affidavit of Pavano refuted the affidavit

submitted by Sparveri puts the proverbial cart before the horse. Although

Pavanos affidavit, filed in an abundance of caution, still provides sufficient

additional evidentiary support for the jurisdictional allegations in the Amended

Complaint, Appellants failure to meet its initial burden rendered said affidavit

superfluous. In any event, as discussed infra, even if Sparveris affidavit

successfully shifted the burden, Plaintiffs allegations, combined with Pavanos

affidavit, sufficiently establish the propriety of personal jurisdiction in Florida.


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B. Appellee Sufficiently Alleges that Appellants

Committed a Tortious Act Within the State

The first prong of the test for personal jurisdiction is governed by Floridas

long-arm statute, which bestows broad jurisdiction on Florida courts. Id. Under

Floridas long-arm statute:

(1) Any person, whether or not a citizen or resident ofthis state, who personally or through an agent does anyof the acts enumerated in this subsection thereby submitshimself or herself and, if he or she is a natural person, hisor her personal representative to the jurisdiction of the

courts of this state for any cause of action arising fromthe doing of any of the following acts:

. . .

(b) Committing a tortious act within this state.

See 48.193, Fla. Stat. (Emphasis added). Although the statute provides several

methods by its plain language, allegations satisfying any of these criteria are

sufficient to establish that a defendant submitted to personal jurisdiction in Florida.

Thus, notwithstanding the assertions in Sparveris affidavit, it makes no difference

if Appellants carried on a business in Florida or have any interest in real property

in Florida.

Pursuant to 48.193(b), Appellee alleged that Sparveri committed tortious

acts in Florida by repeatedly making material representations in phone

conversations with Appellees Settlor while he was in Florida. Florida case law

unequivocally provides that tortious acts that are committed telephonically in


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Florida satisfy the requirements of 48.193(b). Because this allegation is

unchallenged in Sparveris affidavit, the Court may treat the allegations in the

Amended Complaint as admitted.

The Florida Supreme Courts decision in Wendt is directly on point. In

Wendt, the court explicitly held that a defendants physical presence in the State is

not required in order to commit a tortious act in Florida. Id. at 1260. Rather, the

tortious act can occur through the nonresident defendant's telephonic, electronic,

or written communications into Florida so long as the cause of action arises from

the communications. Id. Shortly after the decision in Wendt, the Court held that

telephonic communications could be the sole basis for personal jurisdiction under

Floridas long-arm statute. See Acquadro v. Bergeron, 851 So. 2d 665, 671 (Fla.

2003) (Since this Court has held that a tortious act can arise from an individuals

telephonic communications, see Wendt, 822 So.2d at 1260, we find that the

telephonic communications made by [Defendant] are sufficient to form the basis

for personal jurisdiction in this case).

More recently, the Court elaborated on its rationale, explaining that [t]he

determination of whether certain acts constitute communications into Florida is

straightforward when the case concerns telephonic communications, written

communications, or electronic communications in the form of e-mails or

facsimiles, because those communications are directed to reach a specific recipient


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in a specific forum; in other words, it is clear that the nonresident defendant's

communications were made into Florida. Internet Solutions Corp. v. Marshall, 39

So.3d 1201, 1208 (Fla. 2010) (citing Hou v. United Airlines Corp., 2006 WL

2884963, (M.D.Fla. Oct.10, 2006), and OSI Indus., Inc. v. Carter,834 So.2d 362

(Fla. 5th DCA 2003)).

Like the instant case, OSI involved claims of negligence through

misrepresentation. In that case, the plaintiff sued several defendants for fraudulent

and negligent misrepresentation based upon statements concerning employment

benefits that were made over a six year period (1988-1994). OSI Indus., Inc. v.

Carter,834 So.2d 362, 363 (Fla. 5th DCA 2003) One of the defendants, who was

a resident of Illinois, moved to dismiss for lack of personal jurisdiction. In support

thereof, he filed an affidavit in which he asserted that he never had any in-person

conversations with the plaintiff in Florida and that he did not recall ever having

telephone conversations with the plaintiff while the plaintiff was in Florida. Id. at

364. In response, the plaintiff filed an affidavit in which he claimed that one of the

defendants misrepresentations took place during a telephone conversation in 1994

while the plaintiff was in Florida. The Fifth District affirmed the trial courts

order, issued without conducting an evidentiary hearing, that this allegation alone

satisfied the requirements of Floridas long-arm statute under the Wendtrationale.

Id. at 367. The instant case is even more compelling as, unlike the defendant in


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OSI, Sparveri does not even deny having the phone conversations with Pavano

while he was in Florida. Moreover, Appellant in this case alleges multiple phone

conversations, emails, and traditional mail deliveries directed to Pavano in Florida,

as opposed to the one isolated conversation in OSI.

That Appellant includes other allegations concerning Sparveris breach of

duty is irrelevant to the personal jurisdiction analysis. The long- arm statute does

not require that every allegation underlying a cause of action support personal

jurisdiction, but merely the minimum threshold. See Gerber Trade Finance, Inc. v.

Bayou Dock Seafood Co, Inc., 917 So. 2d 964, 967 (Fla. 3d DCA 2005)

(recognizing that [w]hile it is true that under the general jurisdiction standard the

defendant must be involved in substantial, not isolated, and continuous contacts

within the State, . . . for specific jurisdiction, the plaintiff need only show that the

defendant's contact within the State resulted in, among several options, a tortious

act) (emphasis added). Thus, the OSI court found that one instance of tortious

conduct during a telephone conversation to a plaintiff in Florida was sufficient to

establish personal jurisdiction even though the plaintiff in that case was allegedly

the recipient of several other misrepresentations over the previous six years that

had nothing to do with Florida. Similarly, the fact that Sparveri made

misrepresentations to Pavano in the course of telephone conversations that

occurred while Pavano was in Florida is sufficient, in and of itself, to support the


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trial courts finding of personal jurisdiction, even if he committed other interrelated

acts of negligence outside of Florida. Moreover, it is these same interrelated acts

(i.e., lack of due diligence) that make the subject misrepresentations negligent to

begin with.

Appellants reliance on Koock v. Sugar & Felsenthal LLP, 2010 U.S. Dist.

LEXIS 38004 (M.D. Fla. March 25, 2010), is misplaced, as that case did not

involve a misrepresentation made specifically to the plaintiff or the plaintiffs

agent. Rather, Koock concerned the preparation of offering documents for an

investment that were prepared by the defendants and distributed nationally. Only

slightly more than one-half of one percent of the revenues collected came from

Florida. Conversely, in the instant case, Sparveris representations were made

exclusively to Appellee thorough Pavano. That the misrepresentations were made

by telephone to Pavano, rather than to the beneficiaries or Co-Trustees themselves,

is irrelevant for purposes of determining if the telephonically committed act was

tortious. See Deloitte & Touche v. Gencor Industries, Inc., 929 So. 2d 678 (Fla.

5th DCA 2006) (holding that when inquiring into whether a tortious act, such as a

misrepresentation, was directed at Florida, it makes no difference if the

misrepresentation was made to a plaintiff directly or through an intermediary).

In fact, Appellants only response to jurisdiction under 48.193(b) is the

unsupported argument that because Pavano, as the Settlor, is not himself a party,


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Sparveris misrepresentations to Pavano while Pavano was acting on behalf of the

Trust did not give rise to the Trusts causes of action as a matter of law. 5 This

argument is both legally and factually flawed.

First, Appellants argument impermissibly requires the Court to decide

whether Plaintiffs will actually prevail in proving that Sparveris

misrepresentations were negligently made. Such a procedure is wholly

inappropriate under a long-arm jurisdiction analysis. On the contrary, in ruling on

the sufficiency of allegations for purposes of long-arm jurisdiction, a court is not

permitted to determine whether a plaintiff will ultimately prevail in proving that

the defendant actually committed a tort in Florida, but rather, the court may only

examine whether the tort, as alleged,occurred in Florida. SeeThorpe v. Gelbwaks,

953 So. 2d 606, 609 (Fla. 5th DCA 2007) (citing OSI Indus., Inc. v. Carter,834

So. 2d 362, 367-68 (Fla. 5th DCA 2003); Machtinger v. Inertial Airline Servs.,

Inc., 937 So. 2d 730 (Fla. 3d DCA 2006); and Walter Lorenz Surgical, Inc. v.

Teague,721 So. 2d 358 (Fla. 1st DCA 1998)).

Specifically, although not expressly saying so in their Initial Brief,

Appellants question the element of causation. (App. pp. 117-18.)6 This requires

5Notably, Appellants cannot cite to one case in support of their argument that Florida does not

have long-arm jurisdiction pursuant to 48.193(b) under the facts alleged in the AmendedComplaint.


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the Court to examine whether Appellee will prevail on proving each element of the

tort, specifically the element of proximate cause. Appellees allegations can be

summarized as follows: 1) Appellants, through Sparveri, breached their duty of

care to the Trust by making representations to Pavano, while acting on behalf of

the Trust, concerning the validity of the Banyon investment, including making

false statements pertaining to the level and nature of Sparveris due diligence; 2)

based on Sparveris representations, Pavano authorized him to invest Trust assets

into what turned out to be a Ponzi; and 3) as a direct and proximate result, the

Trust suffered millions of dollars in damages.

As discussedsupra, Sparveris affidavit never contests the allegation that he

made numerous misrepresentations into the State of Florida. Therefore, in ruling

on the motion to dismiss for lack of personal jurisdiction, the trial court was

required to treat as a fact that Sparveri made misrepresentations directed at a

Florida resident while in the State. Whether a jury will ultimately conclude that

there is no causal connection between the representations to Pavano and the

damages to the Trust is a wholly separate issue. SeeBrito v. County of Palm

Beach, 753 So. 2d 109, 113 (Fla. 4th DCA 1998) (citing Blaw-Knox Food &

Chem. Equip. Corp. v. Holmes,348 So. 2d 604, 606 (Fla. 4th DCA 1977) for the

6 Appellants argument in this regard was made clear at the hearing below when it relied onPalsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), the landmark decision thathelped establish the concept of proximate cause.


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proposition that the issue of proximate causation is one for the jury, unless the

issue is so clear that reasonable people could not differ).

Appellants argument is factually baseless in any event. Appellants focus on

one sentence from the introduction section of the Amended Complaint which

describes the attached Delegation as giving Sparveri sole decision making

authority to, inter alia, vote as proxy upon all securities owned by the Trust, to

settle claims, lend money, pledge trust assets, and to deposit, withdraw, and invest

Trust funds in the Trusts best interests. (App. p. 29.) In reliance thereon,

Appellants make the tenuous assertion that because Sparveri had sole decision

making authority, and his decisions were actually made while he was in his office

in Connecticut, his misrepresentations to Pavano did not give rise to the cause of

action as a matter of law.

When looking at the Amended Complaint and Pavanos uncontested

affidavit in their entirety, there can be no doubt that Pavano was not only acting as

a Settlor, but also as a concerned client and agent on behalf of his wife and child,

the primary beneficiaries under the Trust. When Sparveri came upon an

investment opportunity, he would present it to Pavano and offer his advice.

Pavano would then first decide whether to make the investment and then decide the

appropriate vehicle to fund the investment. As for the Banyon investment in this

case, Pavano decided to use assets of the Trust. (App. p. 110.) Notably,


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Appellants do not deny the allegations that, as the financial and investment advisor

for Pavano, Sparveri routinely consulted with Pavano before making any

investments, whether for Pavano personally or for the Trust that he formed for the

benefit of his wife and daughter. Nor does Sparveri affirmatively assert in his

affidavit that he ever made investments without first obtaining Pavanos approval.

Nevertheless, Appellants ask the Court to look at one introductory allegation in a

vacuum in lieu of considering the uncontested actual dealings and course of

conduct of the parties as set forth both in the Amended Complaint and Pavanos

affidavit.

Taking a less myopic view, it is clear that the phrase sole decision making

authority only has the meaning suggested by Appellants if taken out of context

from the entirety of the Amended Complaint. For example, the few other instances

in the Amended Complaint where this decision making authority is referenced

elaborate not only that Sparveri was required to perform due diligence and make

investment recommendations, but that Sparveri actually had a heightened duty of

care to both Appellee and Pavano based upon his position as a confidant who, in

addition to his role as Trustee, also maintained all of Pavanos personal accounts.

(App. pp. 32, 37, 51.) Appellants likewise fail to acknowledge Pavanos

supporting affidavit, in which Pavano alleged under oath that Sparveri knew that

he was to consult with me prior to making any investment decision and Sparveri


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never made any investment decision without my prior consent and, had he acted

contrary to my instructions, I would have had him removed as co-trustee.

There can be no doubt that under the Delegation, Sparveri was the only

person with the actual ability to act upon an investment decision by signing a

check, authorizing a transfer, or the like. The following facts are equally beyond

dispute and, for that matter, uncontested: Sparveri always consulted with Pavano

before making any investment decision; Sparveri never made any investments

without Pavanos consent; and Sparveri would have been removed as Trustee if he

acted contrary to Pavanos instructions. Based on the course of conduct of the

parties, Appellants reliance on one throwaway phrase to dictate the entire issue of

personal jurisdiction is disingenuous at best. Tellingly, Sparveris letter of apology

was not sent to his successor trustee or the beneficiaries, but to Pavano personally.

At most, Appellees counsels selection of the phrase sole decision making

authority was a poor choice of words for describing the Delegation. Counsels

isolated interpretation of a document, however, has no binding effect. See

Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490, 494 (Fla. 3d DCA

1994) (recognizing that [t]he conclusions of the pleader, as to the meaning of the

exhibits attached to the complaint, are not binding on the court).

The Delegation and Trust Agreement, which are attached as exhibits to the

Amended Complaint, are wholly consistent with the entirety of Appellees


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allegations. The authority for the Delegation can be found in Article XII, Section

Q of the Trust, which expressly provides that the Delegation of authority to one

Fiduciary is revocable for any reason by the remaining Fiduciaries. Critically, the

phrase sole decision making authority is notably absent from both the Trust and

Delegation. Likewise, neither the Trust nor the Delegation contains any language

suggesting that Sparveri had carte blanche to invest in unorthodox enterprises. In

fact, the Delegation upon which Appellants rely does not even contain the terms

invest or investment. Moreover, the Trust Agreement itself shows that

Sparveris authority was anything but unbridled. Rather, the Trust Agreement

provides that the decisions of a Trustee acting with discretionary authority are

reviewable by a court, and that Pavanos intent should be considered before a court

reverses said decision. (App. p. 72.) With this in mind, Appellants implicit

argument that, even after undertaking to advise Pavano and obtain his approval,

Sparveri was free to ignore Pavanos wishes, is preposterous.

Appellants might claim that the Trust Agreement and Delegation, standing

alone, do not give rise to a duty for Sparveri to consult with Pavano before going

forward with an investment. However, taking Appellees allegations as true, a fact

finder could easily conclude that even if Sparveri did not initially have a duty to

seek Pavanos approval before making an investment on behalf of the Trust, by

affirmatively providing advice and seeking Pavanos approval, Sparveri effectively


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undertook a duty to act in a non-negligent manner. See Nicholson v. Kellin, 481

So. 2d 931, 936 (Fla. 5th DCA 1985) (recognizing that once a party undertakes to

make representations, they assume a duty to do so in a non-negligent manner).

Likewise, and as already discussed, a fact finder could conclude that Pavano was

simply the intermediary for communications with the other trustees, who retained

the right to revoke the Delegation. See Harrell v. Branson, 344 So. 2d 604, 606

(Fla. 1st DCA 1977) (It is not necessary that a direct statement be made to [a]

representee in order to give rise to the right to rely upon the statement, for it is

immaterial whether it passes through a direct or circuitous channel in reaching him,

provided it be made with the intent that it shall reach him and be acted on by the

injured party). See alsoDeloitte & Touche, supra (holding that when inquiring

into whether a tortious act, such as a misrepresentation, was directed at Florida, it

makes no difference if the misrepresentation was made to a plaintiff directly or

through an intermediary).

Because Appellees Amended Complaint meets the first prong of the

Venetian Salami test by sufficiently alleging personal jurisdiction under

48.193(b), the Court should affirm the order of the trial court denying Appellants

Renewed Motion to Dismiss on the grounds of lack of personal jurisdiction under

Floridas long-arm statute.


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III. PLAINTIFFS ALLEGATIONS SAT ISFY THE

DUE PROCESS REQUIREMENTS OF THE UNITED

STATES CONSTITUTION

Appellees allegations also satisfy the due process requirements for asserting

personal jurisdiction over Defendants. In International Shoe Company v.

Washington, 326 U.S. 310 (1946), the United States Supreme Court held that

before a defendant can be subject to personal jurisdiction, he must have certain

minimum contacts within the forum such that the maintenance of the suit does not

offend traditional notions of fair play and substantial justice. See Venetian Salami

Co.554 So. 2d at 500 (citingInternational Shoe)).

A. Appellants Actions Satisfy the Test for

Minimum Contacts

Factors that go into determining whether sufficient minimum contacts exist

include the foreseeability that the defendant's conduct will result in suit in the

forum state and the defendant's purposeful availment of the forum's privileges and

protections. Georgia Insurers Insolvency Pool v. Brewer, 602 So.2d 1264, 1268

(Fla. 1992) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)). Put

another way, a forum has jurisdiction over a defendant where that defendants

conduct in connection with the forum state is such that he should reasonably

anticipate being haled into court there. Venetian Salami, 554 So. 2d at 500

(quoting World-Wide Volkswagen Corp. v. Woodson,444 U.S. 286 (1980)).


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It is well established that allegations of the commission of a tort in Florida

are, in and of themselves, sufficient to establish minimum contacts. See Godfrey v.

Neumann, 373 So. 2d 920, 922 (Fla. 1979) (we find that by committing a tort in

Florida a nonresident establishes sufficient minimum contacts with Florida to

justify the acquisition of in personam jurisdiction over him by personally serving

him outside the state). See also Venetian Salami, 554 So. 2d at 502 (recognizing

that although many of the enumerated circumstances in section 48.193 do not,

standing alone, satisfy minimum contacts, implicit within several of the

enumerated circumstances are sufficient facts which if proven, without more,

would suffice to meet the requirements of International Shoe Co.); Ileyac

Shipping, Ltd. v. Riera-Gomez, 899 So. 2d 1230, 1232 (Fla. 3d DCA 2005)

(quoting Godfrey); Gerber Trade Finance, Inc. v. Bayou Dock Seafood Co., Inc.,

917 So. 2d 964, 967 (Fla. 3d DCA 2005) (citing Godfrey);Krilich v. Wolcott, 717

So. 2d 582, 584 (Fla. 4th DCA 1998) (same).

Appellants mistakenly suggest a rigid, step by step analysis for minimum

contacts in which each of the following prongs must be satisfied: 1) the contacts

must be related to the plaintiffs cause of action; 2) the defendant, through his

contacts, purposefully availed himself of the privilege of conducting activities

within the forum; and 3) the defendants contacts are such that he should

reasonably anticipate being haled into court in the forum. (I.B. pp. 9-10, n.19)


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The case law is clear, however, that a court should not apply a mechanical or rigid

test in ruling on a defendants minimum contacts; rather, the facts of each case

must be weighed in deciding whether personal jurisdiction would comport with fair

play and substantial justice. Venetian Salami 554 So. 2d at 501 (citing Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 485-86 (1985), and Kulko v. California

Superior Court, 436 U.S. 84, 92 (1978)). The test suggested by Appellants is

simply a list of the factors that a court should balance in examining a defendants

minimum contacts. Where a defendant has committed a tort in the State, the

factors will necessarily balance in favor of a finding of minimum contacts. See

Godfrey andVenetian Salami,supra. Taking them one at a time, the allegations in

the Amended Complaint satisfy each of the factors in any event.

1. Appellants Conduct Relates to

Plaintiffs Causes of Action

First, Appellants contacts with the State are undoubtedly related to

Plaintiffs causes of action. Appellants do not even contest as much. Sparveri

entered into an agreement with Carl Pavano, a Florida resident, by which he was to

act as an independent trustee and financial advisor for the benefit of the

beneficiaries of the Pavano Dynasty Trust. In exercising his duties under that

agreement, Sparveri routinely consulted with, and sought the approval of, Pavano

prior to making certain investments, such as those that form the basis of the

Amended Complaint. Many of these discussions occurred by telephone while


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Pavano was in Florida. During the course of these discussions, Sparveri made

material misrepresentations concerning the validity of the Banyon investments. In

addition to these phone conversations, Sparveri likewise directed numerous

misrepresentations to Pavano while he was in Florida through both electronic and

traditional mail. In so doing, Sparveri negligently breached his duties to Plaintiff.

In reliance on the misrepresentations made to Pavano while he was in Florida,

Pavano gave Sparveri his blessing to invest assets of the Trust into what turned out

to be an illegitimate scheme. None of these factual allegations are challenged in

Sparveris jurisdictional affidavit.

2. Appellants Purposefully Availed

Themselves of the Benefits and

Protections of Conducting Business in

Florida

Next, the allegations in the Amended Complaint show that Appellants

purposefully availed themselves of the privileges and benefits of conducting

business in Florida. The purposeful availment requirement is to ensure that a

defendant will not be haled into a jurisdiction as a result of random, fortuitous, or

attenuated contacts. See Burger King Corp. v. Rudzewicz,471 U.S. at 475 (1985).

Here, in addition to making misrepresentations in telephone calls with a Florida

resident while in Florida, Appellants entered into an agreement with Plaintiffs that

contains a choice of law clause providing that [t]he validity, construction and

administration of this document and any trust hereunder shall be governed by the


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laws of Florida. InBurger King, the Supreme Court held that although a choice

of law provision cannot alone establish personal jurisdiction, it does satisfy the

purposeful availment factor of the minimum contacts analysis. 471 U.S. 462 at

481-82(1985). In so holding, the Court approved of the dissent from the Eleventh

Circuit, in which Judge Johnson opined that the purposeful availment prong is

satisfied when a defendant enters into a contract that specifically provides that it

would be governed by the laws of the forum state. Burger King Corp. v.

Rudzewicz,724 F.2d 1505, 1513 (11th Cir. 1984) (Johnson, dissenting and citing

Marathon Metallic, Building Co. v. Mountain Empire Construction Co., 853 F.2d

921, 923 (11th Cir. 1981)). See also Morris v. Atchity, 2009 WL 463971 (C.D.

Cal. Jan. 13, 2009) (holding that a choice of law provision established that a

defendant purposefully availed itself of the laws and protections of California).

Accordingly, Appellants purposefully availed themselves of the benefits and

privileges of conducting business in Florida by entering into the Trust Agreement

at the heart of this case because said agreement contains a choice of law clause

identifying the laws of Florida as those governing the construction and

administration of the Trust.


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3. Appellants Conduct was Such That

They Should Have Reasonably

Anticipated Being Haled into a Florida

Court

Finally, Appellees allegations show that Appellants conduct was such that

they should have reasonably anticipated being haled into a Florida court. Of the

factors a court may consider in ruling on minimum contacts, none are more

important than whether a defendants conduct is such that he should reasonably

anticipate being haled into court. Silver v. Levinson, 648 So. 2d 240, 242-43 (Fla.

4th DCA 1994). It is important to keep in mind, however, that, as with purposeful

availment, it is the defendants activities that control this issue, rather than the

unilateral actions of a third party. See Robinson v. Giarmarco & Bill, P.C., 74

F.3d 253, 258 (11th Cir. 1996). This requirement assures that a defendant will

not be haled into a jurisdiction as a result of random, fortuitous, or attenuated

contacts. . . Id. (citingBurger King,471 U.S. at 475.) Here, Appellants contacts

with Florida were both deliberate and continuous.

As previously discussed, Sparveri entered into an agreement with Carl

Pavano, a Florida resident, by which he was to act as an independent trustee and

financial advisor for the benefit of the beneficiaries of the Pavano Dynasty Trust.

By its express terms, the administration and construction of that agreement is

controlled by Florida law. In exercising his duties under the agreement, Sparveri

routinely consulted with, and sought the approval of, Pavano, while Pavano was in


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Florida, prior to making certain investments, such as those that form the basis of

Plaintiffs Amended Complaint. These investments were offered by Banyon,

which is exclusively located in Florida. In making the underlying investments

after receiving Pavanos approval, Sparveri routinely wired money from the Trust

Assets into Banyons bank accounts in Florida. These allegations show

intentional, continuous, and direct contact with Florida that are anything but the

type of random, fortuitous, or attenuated contacts resulting from the unilateral

activities of a third party. Although Banyons presence in Florida, standing alone,

is arguably fortuitous, when considered in light of all of the other factual

allegations relating to the misrepresentations directed at Pavano while in Florida,

the only reasonable conclusion is that Defendants could reasonably foresee that

any breaches of duty arising from those misrepresentations would cause them to be

haled into a Florida court. Further evidence that Appellants should have foreseen

being haled into a Florida court is the fact that the Trust was but one of many

vehicles that Sparveri and Kostin were entrusted to manage by Florida resident

Pavano.

B. Floridas Assertion of Jurisdiction OverAppellants Comports with Fair Play and

Substantial Justice

After a court concludes that a defendants minimum contacts with a forum

are such that he should reasonably anticipate being haled into court there, the next


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step is the determination of whether exerting personal jurisdiction comports with

fair play and substantial justice. Madara v. Hall, 916 F.2d 1510, 1517 (11th Cir.

1990). The additional factors a court considers in making such a determination are

the burden on the defendant in defending the lawsuit, the forum state's interest in

adjudicating the dispute, the plaintiff's interest in obtaining convenient and

effective relief, the interstate judicial system's interest in obtaining the most

efficient resolution of controversies, and the shared interest of the states in

furthering fundamental substantive social policies. Id. Almost all of these factors

favor jurisdiction in Florida.

Appellants contention that Floridas interests are hardly discernable is

patently absurd. One of the cornerstones of the Amended Complaint is the series

of allegations that Sparveri repeatedly made tortious representations to Pavano, a

Florida resident, through the mail, telephone conversations, and emails while

Pavano was in Florida. Moreover, those representations related to a Ponzi scheme

that is likely the largest such scheme in this States history. The cases relating to

the Rothstein Ponzi are not only being closely scrutinized by the entire local legal

community, but are of such a complex nature that the Chief Judge of the Circuit

Court entered a sua sponte order directing that all cases related to the Ponzi be

heard by the same judge. For much the same reason, jurisdiction in Florida is also


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favored by the factor concerning the interstate judicial systems interest in

obtaining efficient dispute resolutions.

Appellants contend that Connecticut has a greater interest in this case

because that is where Sparveri was located when he made the decision to invest.

By that logic, if Sparveri had been traveling to California on business when he

made the decision to invest, neither Connecticut nor Florida would serve to

comport with fair play and substantial justice. Such an argument makes a mockery

of the entire minimum contacts analysis. Sparveris physical location at the

moment he decided to invest has no bearing on his tortious communications

directed to Florida and is obviously not the controlling factor. Moreover, the test is

whether the plaintiffs selection (Florida) as the forum state has an interest in

adjudicating the matter, not whether another jurisdiction (Connecticut) has a

greater interest than said selection. For the reasons already set forth, Floridas

interest in this matter is abundantly clear.

Another factor in favor of jurisdiction in Florida is Appellees interest in

obtaining efficient and effective relief. Sparveris affidavit does not support the

contention in Appellees Initial Brief that most witnesses, including Appellee

itself, are in Connecticut. Sparveri claims in his affidavit that the original

documents concerning the investment in Banyon are located in Connecticut, but

fails to explain any difficulties associated with obtaining said documents for use in


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this case, should the need arise. (App. p. 105.) In fact, a reasonable inference

from Sparveris affidavit is that he is still in possession of these documents

himself, in which case the parties should have easy access irrespective of which

forum litigates this case.

Sparveri also fails to show that Florida does not have adequate access to

material witnesses. Sparveri identifies Roland Labonte as a testifying witness, but

admits that he spends half of the year in Florida. (App. p. 106.) Sparveri also

states that three unidentified employees from his local Bank of America branch

will testify that he was in Connecticut when each investment was made. (Id.)

These witnesses have nothing to do with any contested issues in the Trusts case.

The only other witness specifically identified in the affidavit is Sparveri himself.

Appellants ignore, however, that numerous witnesses in addition to Pavano and

LaBonte are located in Florida. These witnesses include George Levin, Frank

Preve, and any other Banyon employees or agents who took part in promoting the

investment to Sparveri. Moreover, Plaintiff alleges that Sparveri failed to conduct

due diligence in Florida. Proving as much will necessarily involve the testimony

of witnesses from Florida who can shed light on what diligence Sparveri

performed, including which questions about the investment Sparveri did or did not

ask. Additionally, although it is too soon to know for sure, it might be necessary

for employees from the Florida accounting firm to testify about the documentation


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that was used in preparing the audited financial statements that were included in

Banyons Confidential Offering Memorandum.

Appellants seemingly throw away statement suggesting that the Court

consider that the Trust itself is located in Connecticut is disingenuous at best.

Although it is true that the newly named Trustee is the necessary Plaintiff on

behalf of the Trust, the case concerns Sparveris dealings with actual people as

opposed to a piece of paper creating a fictitious legal entity. Carl Pavano, an actual

person and a Florida resident, executed the Trust Agreement and was the recipient

of the repeated misrepresentations made by Sparveri. Appellee has already filed a

separate lawsuit arising from these same investments against Rothstein and his

many co-conspirators, which is currently pending in the same Circuit. Under these

circumstances, where Appellants conduct satisfies both Floridas long-arm statute

and the minimum contacts analysis, requiring Appellee to litigate this one aspect of

its claims in Connecticut, based on the tenuous connection of being the physical

location where Sparveri made a mental decision, would constitute an unnecessary

hardship.

Because Appellants had minimum contacts with Florida and exercising

jurisdiction over them in Florida comports with fair play and substantial justice, the

Court should affirm the order of the trial court denying Appellants Renewed


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Motion to Dismiss on the grounds of lack of personal jurisdiction under the United

States Constitution.

Conclusion

Based on the foregoing, this Court should affirm the trial courts order

denying Appellants Renewed Motion to Dismiss on the grounds of lack of

personal jurisdiction.

Respectfully submitted,

By:DANIEL S. WEINGER, ESQ.


45/45

Certificate of Service

I HEREBY CERTIFY that a copy of the foregoing has been furnished to

Gary H. Barnes, Gary H. Barnes, P.A., 313 W. Shore Rd., South Hero, VT 05486,

by U.S. Mail this 23rd day of May, 2011.

Certificate of Type Size and Style

The undersigned counsel certifies that the type and style used in this brief is

14 point Times New Roman.

_________________________

CONRAD & SCHERER, LLPAttorneys for AppelleeP. O. Box 14723Fort Lauderdale, FL 33302

Phone: (954) 462-5500

By:__________________________DANIEL S. WEINGERFlorida Bar No. 017290ERIC J. RAYMANFlorida Bar No.: 21947

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