IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

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


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

Appellants,

v.

ANTHONY DEGENNARO, as Trustee
of the EXTRA INNING DYNASTY
TRUST,

Appellee.
_______________________________/




ANSWER BRIEF OF ANTHONY DEGENNARO, AS TRUSTEE OF THE
EXTRA INNING DYNASTY TRUST





DANIEL S. WEINGER, ESQ.
CONRAD & SCHERER, LLP
Attorneys for Appellant
P. O. Box 14723
Fort Lauderdale, FL 33302
Tel: (954) 462-5500
Fax: (954) 463-9244
ii
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 Allegations
Satisfy 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 Tortious
Act Within the State .............................................................................. 15
III. Plaintiffs Allegations Satisfy the Due Process Requirements of the
United States Constitution ........................................................................ 27
A. Appellants Actions Satisfy the Test for Minimum Contacts .......... 27
B. Floridas Assertion of Jurisdiction Over Appellants Comports with
Fair Play and Substantial Justice .......................................................... 33
Conclusion .................................................................................................... 38
Certificate of Service .................................................................................... 39
Certificate of Type Size and Style ................................................................ 39

iii
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
iv
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
v
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

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

1
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.
2
Statement of Case and Facts
1

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

1
Unless otherwise stated, all facts in this section are taken from the allegations of the Amended
Complaint, or the documents attached thereto, which were taken as true in the trial courts
consideration 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 Dynasty
Trust. For clarity purposes, because the distinction between the Extra Inning Trust and the
3
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 be
considered as one and the same for the remainder of this Brief.
4
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
5
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
6
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 have
revealed are set forth in the Amended Complaint but omitted here in that such allegations are
irrelevant to deciding the personal jurisdiction issue before this Court.
4
DeGennaro replaced Sparveri as trustee after the fraud was revealed.
7
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,
8
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
9
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
10
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.
11
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) (quoting Execu-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.
12
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
13
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 deny that 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).
14
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.
15
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 of
this state, who personally or through an agent does any
of the acts enumerated in this subsection thereby submits
himself or herself and, if he or she is a natural person, his
or her personal representative to the jurisdiction of the
courts of this state for any cause of action arising from
the 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
16
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
17
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 Wendt rationale.
Id. at 367. The instant case is even more compelling as, unlike the defendant in
18
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
19
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,
20
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. See Thorpe 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

5
Notably, 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 Amended
Complaint.
21
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 discussed supra, 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. See Brito 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 on
Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), the landmark decision that
helped establish the concept of proximate cause.

22
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,
23
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
24
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
25
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
26
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 also Deloitte & 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.
27
III. PLAINTIFFS ALLEGATIONS SATISFY 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 (citing International 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)).
28
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)
29
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 and Venetian 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
30
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
31
laws of Florida. In Burger 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.
32
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. (citing Burger 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
33
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 Over
Appellants 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
34
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
35
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
36
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
37
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
38
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.
39
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, LLP
Attorneys for Appellee
P. O. Box 14723
Fort Lauderdale, FL 33302
Phone: (954) 462-5500




By:__________________________
DANIEL S. WEINGER
Florida Bar No. 017290
ERIC J. RAYMAN
Florida Bar No.: 21947