IN THE SUPREME COURT OF FLORIDA 9

CASE NO. SC13-332

STANLEY S. DAVIDSON,

Petitioner,

v.

LUIS M. JUEGA GARCIA,

Appellee.

On Petition For Discretionary Review Of A Decision Of TheThird District Court ofAppeal OfFlorida, Case No. 3D12-1817

PETITIONER'S JURISDICTIONAL BRIEF

LAWRENCE R. METSCH ARTHUR W. TIFFORDFBN 133162 FBN 106250THE METSCH LAW FIRM, P.A. ARTHUR W. TIFFORD, P.A.Co-Counsel for Petitioner Co-Counsel for Petitioner20801 Biscayne Blvd., Ste. 308 1385 N.W. 15* StreetAventura, FL 33180-1423 Miami, FL 33125Telephone: (305) 792-2540 Telephone: (305) 545-7822Telecopier: (305) 792-2541 Telecopier: (305) 325- 1825E-Mail: 1.metsch@metsch.com E-Mail: arthur_tifford@tiffordlaw.

com

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TABLE OF CONTENTS

Page

i Cover Page........................................................................... 1

Table Of Contents................................................................ 2

I Table Of Citations................................................................ 3

I Statement Of The Case And Of The Facts........................... 4

Summary Of Argument......................................................... 9

Argument............................................................................... 10

DISCRETIONARY SUBJECT-MATTERJURISDICTION EXISTS IN THIS CASE PURSUANTTO ARTICLE 3(b)(3), FLORIDA CONSTITUTION,

I AND RULE 9.030(a)(2)(A)(iii), FLORIDA RULES OFAPPELLATE PROCEDURE.

Conclusion............................................................................. 17

Certificate Of Service............................................................ 18

Certificate Of Compliance..................................................... 19

Appendix

TABLE OF CITATIONS

Pages

FLORIDA CONSTITUTION

Article 3(b)(3)......................................................................

FLORIDA STATUTES

I § 734.101.............................................................................

§ 734.201(3)........................................................................

I CASES

Juega v. Davidson, 105 So. 3d 575 (Fla. 3d DCA 2012)...

Nationwide Terminals, Inc. v. MC Construction Group,Inc., 964 So. 2d 705 (Fla. 3d DCA 2007)................

9, 10

14,15

6,15,16

4,5,6,7

6

FLORIDA RULES OF APPELLATE PROCEDURE

Rule 9.030(a)(2)(A)(iii)....................................................... 9, 10

I ARTICLE

Harry Lee Anstead, Gerald Kogan, Thomas D.Hall and Robert Craig Waters, The OperationsAnd Jurisdiction OfThe Supreme CourtOfFlorida, 29 Nova Law Review 431(Spring 2005)............................................................ 10,11,12,13,14

3

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ISTATEMENT OF THE CASE AND OF THE FACTS

Petitioner Stanley S. Davidson ("Davidson") adopts the Third District C urt

of Appeal of Florida's statement of the case and of the facts in Juega v. Davids n,

105 So. 3d 575 (Fla. 3d DCA 2012):

IIn 1991, Simon Davidson ("Decedent") died testate in

I Spain, and was survived by his son, Allan Davidson("Allan"), and his brother, Stanley Davidson ("Stanley").Luis M. Juega ("Juega"), a Spanish citizen and a residentofMarbella, Spain, was appointed by the Spanish court toserve as administrator of the Decedent's estate.

I Juega asserts that, at the time of his death, Decedent wasthe director of Nozomi Finance International Limited, aforeign corporation ("Nozomi Corporation"), and thatfollowing his death, Juega became the director ofNozomiCorporation, because it was an asset of the estate. In 1994,Nozomi Corporation filed suit in Miami-Dade County

I against appellees, Stanley individually, and as trustee ofthe Stanley S. Davidson Trust, seeking repayment ofa noteand mortgage foreclosure based upon a five million dollarloan made by Nozomi Corporation to Stanley before theDecedent's passing. The loan was allegedly secured by a

I mortgage on property owned by Stanley in Miami-DadeCounty.1In 1995, Juega, as administrator ofthe Decedent'sestate, joined Nozomi Corporation's suit, asserting claimsfor conversion and civil theft on behalf of the estate.

I The Spanish court eventually found Allan to be theDecedent's sole heir, and in 2003, entered an order closingthe estate. In conjunction with the closing of the estate,Juega was discharged from his duties as administrator.Following his discharge, Juega filed a fourth amendedcomplaint in the Nozomi Corporation litigation. Stanley

moved to dismiss the fourth amended complaint onmultiple bases, the most pertinent ofwhich was that Juegalacked standing to pursue the litigation after the Spanishcourt had closed the estate. Appellees, in turn, argued that

I the real party in interest was Allan since he was Decedent'ssole heir and, as such, inherited the Decedent's interest inthe underlying lawsuit. In opposition to the motion todismiss, Allan filed an affidavit in support of Juega'sstanding, which stated, in part, that Allan had ratified every

I action taken by Juega and that Juega was "acting as[Allan's] agent in prosecuting this action on [Allan's]behalf." The trial court, accepting the argument that Juegalacked standing under Rule 1.210(a) after his discharge asestate's administrator, dismissed Juega from the lawsuit.

I Juega appealed and this Court reversed the trial court'sorder of dismissal in Juega ex rel. Estate ofDavidson v.Davidson. 8 So.3d 488 (Fla. 3d DCA 2009). We held thatJuega, in his capacity as Allan's authorized agent, hadstanding to proceed as a plaintiff in the action. Id. at 490.

I Thereafter, appellees filed a verified amendedcounterclaim, which contained two counts against Juega inhis individual capacity for civil conspiracy and conversion.Juega moved to dismiss the counts against him in hisindividual capacity for lack of personal jurisdiction. Insupport of his motion to dismiss, Juega filed an affidavit

I attesting, in pertinent part, that 1) he had resided in Spainsince 1959; 2) he had never owned property in Florida; 3)at all times material to the allegations in the counterclaim,he had never personally operated, conducted, engaged in,or carried on any business in Florida; and 4) the only

I contact or dealings Juega ever had with Stanley in Floridawere in Juega's capacity as representative ofthe Decedent'sestate or as director ofNozomi Corporation. Stanley fileda memorandum in opposition to Juega's motion to dismiss,although he did not explicitly contest the facts set forth inJuega's affidavit. Stanley also argued that section

I

734.201(3), Florida Statutes, part of Florida's ProbateCode, conferred personaljurisdiction upon Juega. The trialcourt denied the motion to dismiss and this appealfollowed. We reverse.

105 So. 3d at 576-577.

Rejecting Davidson's argument that § 734.201(3), Florida Statutes, ad

abrogated the common-lawprinciple articulated in Nationwide Terminals, Inc. v. C

Construction Group, Inc., 964 So. 2d 705, 706 (Fla. 3d DCA 2007), the Th rd

IDistrict, in its December 19, 2012, decision in Case No. 3D12-1917, stated:

I Juega further argues that despite the foregoing proceduralinfirmity, the trial court erred by not dismissing him as anamed defendant in the amended counterclaim for lack ofpersonal jurisdiction. While Juega argues the lack of

I sufficient jurisdictional facts on appeal, the appelleeswholly ignore this and focus solely on section 734.201(3)to support their argument of personal jurisdiction overJuega. Section 734.201(3) provides in pertinent part:

Jurisdiction by act of foreign personal representative.-Aforeign personal representative submits personally to thejurisdiction of the courts of this state in any proceedingconcerning the estate by:

I (3) Doing any act as personal representativein this state that would have given the statejurisdiction over that person as an individual.

§ 734.201(3), Fla. Stat.

III

The parties correctly note that there is no case lawaddressing whether this statute confers jurisdiction upon adefendant such as Juega under the facts of a case such asthis. Juega correctly argues that the Probate Code is, in this

I case, inapplicable. As the Florida Supreme Court hasstated, "[t]he Florida Probate Code constitutes a unifiedstatutory scheme intended to govern all probatematters-section 731.102, Florida Statutes (2007),expressly states that the probate code 'is intended as

I unified coverage of its subject matter.' " Hill v. Davis, 70So.3d 572 (quoting § 731.102, Fla. Stat. (2007))(emphasisadded). There is simply no basis for the appellees'assertionthat by virtue ofparticipating in a civil action in capacitiesother than as an individual, Juega submitted to the

I jurisdiction of the court under the Probate Code. See alsoCrescenze v. Bothe, 4 So.3d 31, 33 (Fla. 2d DCA 2009)(addressing a different section of the Probate Code butfinding that "[i]t is clear from the language of the statuteand its place in Chapter 733 of the Probate Code thatsection 733.710(1) applies exclusively to claims againstan estate in a probate proceeding and has noapplication in a civil action to terminate a trust.")(emphasis added). Here, there was no ancillary estateopened in Florida,2 nor was Juega ever appointed a"personal representative" by the circuit court.1

i Moreover, the requirements of personal jurisdiction overJuega under Florida's Long Arm Statute are not met. See §48.193, Fla. Stat. Juega correctly argues, and the appelleesdo not dispute, that the requirements of the Long ArmStatute and Venetian Salami Co. v. Parthenais, 554 So.2d

I 499 (Fla.1989), were simply not satisfied or properly pled.

Accordingly, we reverse the trial court's denial of Juega'smotion to dismiss the two counts against him in hisindividual capacity for lack ofpersonal jurisdiction. (Boldas in original)

I105 So. 3d at 578-579.

Davidson, in Case No 3D12-1817, on December 21, 2012, moved for rehear ng

and for certification to this Court. Those motions were denied on January 25, 2013.

The Third District's mandate was issued on February 11, 2013.

Davidson, on February 13, 2013, filed with the Clerk of the Third District his

Notice Of Appeal (Mandatory Jurisdiction) to this Court. This Court, on Marcl 6,

2013, entered the following order in Case No. SC13-332:

I The notice ofappeal has been treated as a notice to invokediscretionary jurisdiction. Petitioner is allowed to andincluding March 19, 2013, in which to serve the initialbriefonjurisdiction with appendix. Respondent shall havetwenty days after service of petitioner's initial brief on

I jurisdiction in which to serve the answer brief onjurisdiction. Per this Court's Administrative Order In Re:MandatorySubmissionofElectronicCopiesofDocuments,AOSC04-84, dated September 13, 2004, counsel aredirected to transmit a copy of all briefs in an electronicformat as required by the provisions of that order.

II

III

ISUMMARY OF ARGUMENT

DISCRETIONARY SUBJECT-MATTERJURISDICTIONEXISTS IN THIS CASE PURSUANT TO ARTICLE

I 3(b)(3), FLORIDA CONSTITUTION, AND RULE9.030(a)(2)(A)(iii), FLORIDA RULES OF APPELLATEPROCEDURE.

IThis Court possesses discretionary subject-matter jurisdiction in this case

pursuant to Article 3(b)(3), Florida Constitution, as implemented by R.ile

9.030(a)(2)(A)(iii), Florida Rules ofAppellate Procedure, pertaining to decision of

I '"©°'®"'°'°°""®°'^""©"1'""'" '""©°'"©'"®®°'°°"®'''""°""1°officers".

IIIIIIIIIII

ARGUMENT

DISCRETIONARY SUBJECT-MATTERJURISDICTIONEXISTS IN THIS CASE PURSUANT TO ARTICLE3(b)(3), FLORIDA CONSTITUTION, AND RULE9.030(a)(2)(A)(iii), FLORIDA RULES OF APPELLATEPROCEDURE.

In an excellent article and essay written by Former Chief Justices Harry ee

I Anstead and Gerald Kogan, Clerk ofthe Court Thomas D. Hall and Director ofPut lic

Information and Communications Counsel ofthe Court Robert Craig Waters, entit ed

The Operation And Jurisdiction Of The Supreme Court OfFlorida, 29 Nova L rw

Review 431 (Spring, 2005), the following discussion appears:

The third basis of discretionary review jurisdiction existsI when a decision of a district court expressly affects a class

of constitutional or state officers. Again, the operativelanguage here was imported into the 1980 revisions nearlyunchanged from the pre-1980 constitution, but again withthe word "expressly" added. Commentators in 1980 notedthat the "expressness" requirement had the principlepurpose of foreclosing any review of a district courtdecision issued without opinion. The Court has adoptedthis view. In that light, the pre-1980 case law was largelyunaffected and probably remains persuasive.

Consistent with the "expressness" requirement, the Courtin 1974 held that a decision does not fall within this type ofjurisdiction unless it meets a very restrictive test; it must"directly and, in some way, exclusively affect the duties,powers, validity, formation, termination[,] or regulation ofa particular class ofconstitutional or state officers." Thus,the decision must do more than simply modify, construe, or

10

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add to the general body ofFlorida law. Ifother criteria aremet, it is not necessarily dispositive that members of avalid class were or were not litigants in the district court.The Court has said thatjurisdiction could exist even whereno class members were parties to the action, provided thedecision affects the entire class in some way "unrelated tothe specific facts of [that] case."

IIn most instances, it would appear safe to assume that the

I parties to the proceedings below are the only ones allowedto seek review in the Supreme Court of Florida, eventhough they may not be members of the "affected class."However, this has not always been true. One case, In reOrder on Prosecution of Criminal Appeals by the TenthJudicial Circuit Public Defender, was accepted eventhough review was sought by governmental agencies notactually a party in the proceedings below. In any event, thecase had very unusual facts, and some may questionwhether it was erroneously assigned to this particularsubcategory ofjurisdiction.

The case arose in 1990 when a district court entered a suasponte order prohibiting a public defender from bringingappeals arising outside his own circuit. This, of course,would require public defenders in other circuits to handletheir own appeals. Because the public defenders in othercircuits lacked adequate resources, it appeared that countygovernments would be forced to pay for court-appointedprivate lawyers in their own circuits. As a consequence,several county governments then filed a "motion forrehearing," which was summarily denied. The county

I governments then sought and obtained review in theSupreme Court of Florida, based not on their ownconstitutional status, but on the basis that the districtcourt's order affected the duties of public defenders inother counties.

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IThe act offiling the "motion for rehearing" somehow madethe county governments a "party," but this is not at allclear. This situation also could be viewed as adetermination that the counties, as affected parties, were

I granted the right to intervene, albeit not explicitly. Thesummary order of dismissal is equally consistent with theview that the district court refused to recognize the countygovernments as a party. Importantly, however, it appearsthat no one raised or argued any objections to jurisdiction

I when the matter was brought to the Supreme Court ofFlorida. It thus seems highly unlikely that the Court wascreating any form of "third-party standing."

Whatever the case, In re Order on Prosecution ofCriminalAppeals may be characterized as an exercise of the Court's"all writs" jurisdiction, which is discussed in greater detailbelow. "All writs" review previously has been allowed tobring serious governmental crises for expedited reviewwhere some factual orprocedural quirk threatens to deprivethe Court of its "ultimate jurisdiction." That situationalmost certainly existed here, where a technical lack ofstanding might have frustrated the Court's ultimate abilityto review an important case that could have been broughtto the Court by someone else or in some other form.

I Another problem in this form of jurisdiction is thedefinition of the phrase "class of constitutional or stateofficers." The Court has held that the word "class" meansthere must be more than one officer ofthe type in question,and there is no jurisdiction over a decision affecting onlya single board with multiple members where the sole

I powers affected are those ofthe board as a single entity. Insuch a situation, the entity constitutes only one "officer."The fact that an office or board is unique, would appear tomean that there is no jurisdiction. At a minimum, theremust be two or more officers or entities who separately andindependently exercise identical powers ofgovernment that

I 12

are peculiarly affected by the district court's decision.Jurisdiction would exist, for example, where a decisionaffects every board ofcounty commissioners in the state insome way peculiar to them as a class.

The Court has rejected the view that the "class"requirement applies only to constitutional officers, not tostate officers. Indeed, the Court has never clearlydistinguished the two types of officers. It is clear from the

I language of the cases that the Court considers a"constitutional officer" to include any office ofpublic trustactually created by the constitution itself. But it isapparently insufficient that the officer or entity is merelynamed in the constitution in an indirect or general way.

I The term "state officer" remains somewhat vague. Itapparently does not include purely local entities not createdby the constitution itself, but beyond that, the Court hassaid little. There has been no definitive statement that alllocal officials and entities are excluded if they fail toqualify as constitutional officers. A good argument can bemade that a "class of state officers" should include officesof trust created by statute and authorized to independentlyexercise identical powers of government as part of somelarger statewide scheme. Examples might include thegoverning boards ofFlorida's water management districts.However, this is an issue that remains undecided.

Finally, dicta theoretically might constitute a basis forexercising this type of jurisdiction. But in practice, theprerequisites for review here are so rigorous that dicta

I rarely would appear to qualify. Dicta by definition is notbinding, and a petitioner presumably would need to showsome real likelihood that the dicta could be enforcedagainst the "affected" class. A detailed and scholarly courtopinion, for example, sometimes might pose such a threat.Otherwise, there would be no actual legal effect on a class

I

ofconstitutional or state officers, and thus no discretion tohear the case. (Footnotes and citations omitted)

29 Nova Law Review at 507-510.

Footnote 448, 29 Nova Law Review at 510, is especially helpful:

The Florida Constitution juxtaposes "constitutionalofficers" with "state officers." If a constitutional office isone created by the constitution, then it is reasonable to saythat a state office is one created by statute. The "class"requirement obviously suggests that the office must existin more than one location throughout the state. Uniquelocal offices would not qualify. Finally, the rationale for

I exercising jurisdiction over a constitutional class ofofficers applies with equal force to a statutory class ofofficers; a district court opinion affecting either class couldresult in serious disruption of governmental services,requiring resolution by the state's highest court. On the

I whole, both the language of the constitution and publicpolicy considerations support jurisdiction over a statutoryclass of officers that meet the other criteria.

IThat foreign personal representatives constitute "a class" of"state officers' is

evident from the language of § 734.101, Florida Statutes, entitled Foreign perso al

representative, the text of which follows:

(1) Personal representatives who produce authenticatedcopies of probated wills or letters of administration dulyobtained in any state or territory of the United States maymaintain actions in the courts of this state.

I14

I(2) Personal representatives appointed in any state orcountry may be sued in this state concerning property inthis state and may defend actions or proceedings broughtin this state.

(3) Debtors who have not received a written demand forpayment from a personal representative or curatorappointed in this state within 90 days after appointment ofa personal representative in any other state or country, and

I whose property in Florida is subject to a mortgage or otherlien securing the debt held by the foreign personalrepresentative, may pay the foreign personal representativeafter the expiration of 90 days from the date ofappointment of the foreign personal representative.

I Thereafter, a satisfaction of the mortgage or lien executedby the foreign personal representative, with anauthenticated copy of the letters or other evidence ofauthority attached, may be recorded in the public records.The satisfaction shall be an effective discharge of themortgage or lien, irrespective ofwhether the debtor makingpayment had received a written demand before paying thedebt.

(4) Except as provided in s. 655.936, all persons indebtedto the estate of a decedent, or having possession ofpersonal property belonging to the estate, who havereceived no written demand from a personal representativeor curator appointed in this state for payment ofthe debt orthe delivery of the property are authorized to pay the debtor to deliver the personal property to the foreign personalrepresentative after the expiration of90 days from the date

I of appointment of the foreign personal representative.

This is a case of first impression concerning the judicial construction of §

I734.201(3), Florida Statutes. The Third District, in its December 19, 2012, decisi n

in Case No. 3D12-1817, notwithstanding the plain language of§ 734.201(3), Florida

Statutes, refused to apply that statute to Davidson's counterclaim against Juegasolely

on the ground that the Florida Legislature had placed that measure in the Probate

Code and not elsewhere (presumably Chapter 48, Florida Statutes, dealing vsith

"long-arm" jurisdiction in civil actions of the Florida Circuit and County Courts).

I Legal research has failed to disclose a single decision of this Court eitaer

approving or disapproving a Lower Court's refusal to apply a statute on the basis that

the statute had been placed in a particular location within the Florida Statutes.

Consequently, it is essential that this Court confirm its subject-ma ter

jurisdiction over Davidson's petition for review of the Third District's decisior in

Case No. 3D12-1817.

I

ICONCLUSION

This Court should grant Davidson's petition for review ofthe District Cou 's

decision in Case No. 3D12-1817.

ILAWRENCE R. METSCH

I FBN 133162THE METSCH LAW FIRM, P.A.Co-Counsel for Petitioner20801 Biscayne Blvd., Ste. 308Aventura, FL 33180-1423Telephone: (305) 792-2540Telecopier: (305) 792-2541E-Mail: 1.metsch@m sch o

I

Respectfully submitted,

ARTHUR W. TIFFORDFBN 106250ARTHUR W. TIFFORD, P.A.Co-Counsel for Petitioner1385 N.W. 15th StreetMiami, FL 33125Telephone: (305) 545-7822Telecopier: (305) 325- 1825E-Mail: art r_tiffor @ ford w.

co

LAWRENCE R. METSCH RTHUR W. TIFFORDFBN 133162 FBN 106250

I

III

ICERTIFICATE OF SERVICE

I hereby c that true copies of the foregoing Jurisdictional Brief were e-

mailed this day of March, 2013, to:

Juan J. Rodriguez, Esq. (jrodriguez@crgolaw.com)Ernesto M. Rubi, Esq. (erubi@crgolaw.com)David M. Levine, Esq. (dlevine@crgolaw.com)

I Carey Rodriguez Greenberg & O'Keefe, LLP1395 Brickell Avenue, Suite 700Miami, FL 33131

ILAWRENCE R. METSCH

IIIIIIIIII

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Jurisdiction Briefhas been printed in Ti s

New Roman 14-point font.

ILAWRENCE R. METSCHFBN 13March 2013

19

I

MNNMX

III

II

II

II

tDjírb Bigtritt Court of AppealState of Florida, July Term, A.D. 2012

IOpinion filed December 19, 2012.

Not final until disposition of timely filed motion for rehearing.

I No. 3D12-1817Lower Tribunal No. 94-12239

I Luis M. Juega,Appellant,

vs.

Stanley S. Davidson, Individually, and as Trustee of the Stanley S.Davidson Trust,

Appellees.

An Appeal from a non final order from the Circuit Court for Miami-DadeCounty, John W. Thornton, Jr., Judge.

ICarey Rodriguez Greenberg & O'Keefe and Juan J. Rodriguez and David lV.

I Levine and Ernesto M. Rubi, for appellant.

Tifford & Tifford and Arthur W. Tifford; Lawrence R. Metsch (Aventura ,for appellee.

I Before CORTIÑAS, FERNANDEZ and LOGUE, JJ.

I °°"''"^®''II

In 1991, Simon Davidson ("Decedent") died testate in Spain, and w s

survived by his son, Allan Davidson ("Allan"), and his brother, Stanley Davids n

("Stanley"). Luis M. Juega ("Juega"), a Spanish citizen and a resident of Marbell ,

Spain, was appointed by the Spanish court to serve as administrator of tl e

Decedent's estate.

Juega asserts that, at the time of his death, Decedent was the director f

Nozomi Finance International Limited, a foreign corporation ("Nozo i

Corporation"), and that following his death, Juega became the director of Nozo i

Corporation, because it was an asset of the estate. In 1994, Nozomi Corporatio

filed suit in Miami-Dade County against appellees, Stanley individually, and a

trustee of the Stanley S. Davidson Trust, seeking repayment of a note an

mortgage foreclosure based upon a five million dollar loan made by Nozom

Corporation to Stanley before the Decedent's passing. The loan was allegedl

secured by a mortgage on property owned by Stanley in Miami-Dade County.1 I

1995, Juega, as administrator of the Decedent's estate, joined Nozomi

Corporation's suit, asserting claims for conversion and civil theft on behalf of the

estate.

The Spanish court eventually found Allan to be the Decedent's sole heir, and

in 2003, entered an order closing the estate. In conjunction with the closing of the

Stanley argues that the note has been satisfied. Nozomi Corporation disputes thesatisfaction of the note.

2

estate, Juega was discharged from his duties as administrator. Following s

discharge, Juega filed a fourth amended complaint in the Nozomi Corporaticn

litigation. Stanley moved to dismiss the fourth amended complaint on multip e

bases, the most pertinent of which was that Juega lacked standing to pursue t e

litigation after the Spanish court had closed the estate. Appellees, in turn, argue

that the real party in interest was Allan since he was Decedent's sole heir and,

such, inherited the Decedent's interest in the underlying lawsuit. In opposition t

the motion to dismiss, Allan filed an affidavit in support of Juega's standing, whic

stated, in part, that Allan had ratified every action taken by Juega and that Juega

Iwas "acting as [Allan's] agent in prosecuting this action on [Allan's] behalf." Th

trial court, accepting the argument that Juega lacked standing under Rule 1.210(a

after his discharge as estate's administrator, dismissed Juega from the lawsuit

Juega appealed and this Court reversed the trial court's order of dismissal in Juegt

Iex rel. Estate ofDavidson v. Davidson, 8 So. 3d 488 (Fla. 3d DCA 2009). We hek

that Juega, in his capacity as Allan's authorized agent, had standing to proceed as

plaintiff in the action. Id. at 490.

Thereafter, appellees filed a verified amended counterclaim, which

contained two counts against Juega in his individual capacity for civil conspiracy

and conversion. Juega moved to dismiss the counts against him in his individual

capacity for lack of personal jurisdiction. In support of his motion to dismiss,

3

I

II

Juega filed an affidavit attesting, in pertinent part, that 1) he had resided in Spain

I since 1959; 2) he had never owned property in Florida; 3) at all times material to

the allegations in the counterclaim, he had never personally operated, conducteÔ,

I engaged in, or carried on any business in Florida; and 4) the only contact or

dealings Juega ever had with Stanley in Florida were in Juega's capacity e s

I representative of the Decedent's estate or as director of Nozomi Corporation.

Stanley filed a memorandum in opposition to Juega's motion to dismiss, although

he did not explicitly contest the facts set forth in Juega's affidavit. Stanley alsa

argued that section 734.201(3), Florida Statutes, part of Florida's Probate Code,

conferred personal jurisdiction upon Juega. The trial court denied the motion tp

dismiss and this appeal followed. We reverse.

We review the trial court's denial of the motion to dismiss for lack f

personal jurisdiction de novo. Wendt v. Horowitz, 822 So. 2d 1252, 1256 (Flt.

I 2000).

We first note that procedurally, Juega, in his individual capacity, could n(t

have been named a defendant in the amended counterclaim. There is no dispute

that Juega's participation in the underlying case was in his capacity as th:

Iadministrator of the Decedent's estate, and later as agent of Allan, as well as in his

capacity as the director of Nozomi Corporation. Juega, individually, was never 1

I named party. As we have previously held,

I 4

I

A plaintiff who brings or maintains an action solely in its capacity asthe representative of another is not an "opposing party" against whoma counterclaim might be filed. Hall v. McDonough, 216 So.2d 84, 85(Fla. 2d DCA 1968). A counterclaim cannot properly be brought ormaintained against that plaintiff in its individual capacity. Id. Accord,Fidelity-Philadelphia Trust Co. v. Ball, 208 So.2d 282 (Fla. 3d DCA1968). Moreover, Florida Rule of Civil Procedure 1.170 states that acounterclaim may only be brought against an "opposing party."

Nationwide Terminals, Inc. v. MC Constr. Grp., Inc., 964 So. 2d 705, 706 (Fla. 3

DCA 2007). Because Juega had not appeared in the underlying lawsuit in hi

individual capacity, he could not be named, in his individual capacity, as a

Defendant in the appellees' amended counterclaim. This basis alone merita

reversal.

Juega further argues that despite the foregoing procedural infirmity, the tria

court erred by not dismissing him as a named defendant in the amende

counterclaim for lack of personal jurisdiction. While Juega argues the lack o

sufficient jurisdictional facts on appeal, the appellees wholly ignore this and focu

i solely on section 734.201(3) to support their argument of personal jurisdiction ove

Juega. Section 734.201(3) provides in pertinent part:

Jurisdiction by act of foreign personal representative. - A foreignpersonal representative submits personally to the jurisdiction of thecourts of this state in any proceeding concerning the estate by:

(3) Doing any act as personal representative in this state that wouldhave given the state jurisdiction over that person as an individual.

5

II

§ 734.201(3), Fla. Stat.

I The parties correctly note that there is no case law addressing whether th s

statue confers jurisdiction upon a defendant such as Juega under the facts of a c e

such as this. Juega correctly argues that the Probate Code is, in this cas ,

inapplicable. As the Florida Supreme Court has stated, "[t]he Florida Proba e

I Code constitutes a unified statutory scheme intended to govern all proba

matters-section 731.102, Florida Statutes (2007), expressly states that th

probate code 'is intended as unified coverage of its subject matter.'" Hill v. Davi ,

70 So. 3d 582 (quoting § 731.102, Fla. Stat. (2007)) (emphasis added). There i

simply no basis for the appellees' assertion that by virtue of participating in a civi

action in capacities other than as an individual, Juega submitted to the jurisdictio

of the court under the Probate Code. See also Crescenze v. Bothe, 4 So. 3d 31, 3

(Fla. 2d DCA 2009) (addressing a different section of the Probate Code but fmdin

Ithat "[i]t is clear from the language of the statute and its place in Chapter 733 o

the Probate Code that section 733.710(1) applies exclusively to claims agains

an estate in a probate proceeding and has no application in a civil action to

terminate a trust.") (emphasis added). Here, there was no ancillary estate opened

II 6

in Florida,2 nor was Juega ever appointed a "personal representative" by the circ it

court.3

Moreover, the requirements of personal jurisdiction over Juega under

Florida's Long Arm Statute are not met. See § 48.193, Fla. Stat. Juega correctly

argues, and the appellees do not dispute, that the requirements of the Long Ann

I Statute and Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), were

simply not satisfied or properly pled.

Accordingly, we reverse the trial court's denial of Juega's motion to dismiss

the two counts against him in his individual capacity for lack of persontl

jurisdiction.

2 There is no dispute that the Decedent's estate was administered and closed i1Spain. At no point did Juega open an ancillary estate in Florida nor was h"appointed by the [circuit] court." To the contrary, as asserted by the appellees itheir opposition to the motion to dismiss:

The second action by which [Juega] personally submitted himself inhis personal capacity to the personum jurisdiction of this [c]ourt is theresult of his inaction, namely his failure to obtain ancillary letters ofadministration or to file duly certified and apostilled copies of hisletters of administration ("credentials") which any foreignrepresentative of any country or state within the United States mustpresent in order to gain standing as a personal representative to pursueany claim in the Florida court.

I 3 The Probate Code defines "foreign personal representative" as "a personarepresentative of another state or a foreign country." § 731.201(17), Fla. Stat. Thcode further defines "personal representative" as "the fiduciary appointed by thecourt to administer the estate and refers to what has been known as atadministrator, administrator cum testamento annexo, administrator de bonis non

I ancillary administrator, ancillary executor, or executor." § 731.201(28), Fla. StatFurthermore, "court" is defined in the statute as "the circuit court." § 731.201(7)Florida Statutes.

7

IReversed and remanded.

II

II

I

II

THE MKESCH LAw Funu, P.A.AVENTURA CORPORATE CENTER

2OBO I BISCAYNE BOULEVARD. SUITE 3O8

AvENTURA, FLORIDA 33 1 80-1 423

LAWRENCE R. METSCH* TELEPHONE 3O5-792-2540

*ALSO ADMITTED IN CONNECTICUT TELECOPIER 3O5-79 E-254 I

E-MAIL L.METSCH@METECH.COM

WWW.METECH.COM

March 18, 2013

VIA FEDERAL EXPRESS

Hon. Thomas D. HallClerk of the CourtSupreme Court of Florida500 South Duval StreetTallahassee, FL 32399-1927

Re: Stanley S. Davidson v. Luis M. JuegaGarcia, Case No. SC 13-332

Dear Mr. Hall:

This law firm and the law firm ofArthur W. Tifford, P.A., represent Petitioner Stanley

S. Davidson in the above styled matter.

Please accept for filing the enclosed original and five (5) copies of Petitioner'Jurisdictional Brief.

Thank you very much.

rs

Lawrence R. Metsch

EnclosuresCC: Juan J. Rodriguez, Esq.

Ernesto M. Rubi, Esq.David M. Levine, Esq.Arthur W. Tifford, Esq.