respondents' answer jurisdictional brief - Florida Supreme Court

BETTY WEINBERG, 

Vs. 

IN THE SUPREME COURT OF FLORIDA 

Petitioner, 

HARVEY JAY WEINBERG AND 

KENNETH ALAN WEINBERG, 

CASE NO. SC-06-1941 

Respondents. 

________________________________/ 

ON PETITION FOR DISCRETIONARY REVIEW OF A 

DECISION OF THE 

FOURTH DISTRICT COURT OF APPEAL OF FLORIDA 

CASE NO. 4D06-1665 

RESPONDENTS’ ANSWER JURISDICTIONAL BRIEF 

LAW OFFICES OF ADAM G. HEFFNER, P.A. 

Attorneys for Respondents 

1900 N.W. Corporate Boulevard 

Suite 301 – West Building 

Boca Raton, FL 33431 

561-241-5551 – Telephone 

561-241-5699 – Fax 

heflaw@aol.com

TABLE OF CONTENTS 

Cover Page…………………………………………………………………1 

Table of Contents………………………………………………………….2 

Table of Citations………………………………………………………….3 

Statement of the Case and Facts…………………………………………..4 

Summary of Argument…………………………………………………….5 

Argument…………………………………………………………………..6 

Conclusion………………………………………………………………….8 

Certificate of Service……………………………………………………….9 

Certificate of Compliance………………………………………………….10 

2

TABLE OF CITATIONS 

A&M Eng’g Plastics, Inc. v. Energy Saving Tech, Co., 455 So.2d 1124 

(Fla. 4 th DCA 1984)…………………………………………………………5 

Touchton v. Atlantic Coast Line Railroad Company, 155 So.2d 738 

(Fla. 3 rd DCA 1963)……………………………………………………5, 6, 7 

Weinberg v. Weinberg, 936 So.2d 707 (Fla. 4 th DCA 2006)……………..5.6 

Section 46.04 Fla. Stat……………………………………………………...6 

Section 47.011 Fla. Stat…………………………………………………….6 

Fla. R. App. P. 9.030(a)(2)(A)(iv)…………………………………………..7 

3

STATEMENT OF THE CASE AND FACTS 

Respondents accept and adopt the Statement of the Case and Facts as 

stated in Petitioner’s Jurisdictional Brief. 

4

SUMMARY OF ARGUMENT 

In Weinberg v. Weinberg, 936 So.2d 707 (Fla. 4 th DCA 2006), the 

Fourth District held that the Respondents, as non-Florida residents, were 

justified in filing suit against Petitioner in Palm Beach County, Florida, 

despite the fact that the Petitioner had relocated to Miami-Dade County, 

Florida, just prior to the date suit was filed. In relying on A & M Eng’g 

Plastics, Inc. v. Energy Saving Tech. Co., 455 So2d 1124 (Fla. 4 th DCA 

1984), the Fourth District reasoned that “It is the prerogative of the plaintiff 

to select the venue of his or her suit, and when that choice is one of the three 

statutory alternatives, it will be honored.” The appellate court specifically 

held that the Respondents chose to bring their suit in Palm Beach County, 

Florida, where the cause of action accrued. Petitioner’s reliance on the case 

of Touchton v. Atlantic Coast Line Railroad Company, 155 So. 2d 738 (Fla. 

3 rd DCA 1963) is misplaced, and the Weinberg decision is not expressly and 

directly in conflict with the Touchton decision, on the same question of law. 

5

ARGUMENT 

In its decision in Weinberg, the Fourth District held that “It is the 

prerogative of the plaintiff to select the venue of his or her suit, and when 

that choice is one of the three statutory alternatives, it will be honored.” The 

appellate court specifically held that the Respondents chose to bring their 

suit in Palm Beach County, Florida, where the cause of action accrued. The 

holding of Touchton v. Atlantic Coast Line Railroad Company, 155 So. 2d 

738 (Fla. 3 rd DCA 1963) was that “a plaintiff as a resident of the state had a 

statutory right to sue a foreign corporation in any county wherein the foreign 

corporation had an agent or other representative, and the doctrine of forum 

non conveniens could not be invoked to defeat such right, even though 

plaintiff did not reside in the county in which he chose to bring the action.” 

The Touchton decision is vastly distinguishable from the facts of the case at 

bar, in that in Touchton, the appellate court was faced with a foreign 

defendant as opposed to a resident defendant, reliance upon § 46.04 Fla. 

Stat. as opposed to Fla. Stat. 47.011, as well as the doctrine of forum non 

conveniens as opposed to strictly a statutory argument based upon § 47.011, 

Fla. Stat. Petitioner is incorrect when she states that is central issue was 

“whether a nonresident plaintiff is privileged to determine the venue of a 

civil action against a resident defendant.” § 47.011, Fla. Stat. does not 

6

make any distinctions as to the applicability of the provisions of the statute 

based upon the Plaintiff’s residence. Likewise, neither the Fourth District 

nor the Third District made such a distinction. Additionally, it is most 

interesting that the Petitioner relies exclusively on the Touchton decision in 

her attempt to invoke the discretionary jurisdiction of the Honorable Court; 

however, the Touchton decision was not raised, in her Initial Brief, 

Amended Brief, Reply Brief, at oral argument or in her Motion for 

Rehearing and Clarification. 

As this Honorable is well aware, in order to satisfy the requirements 

of Fla. R. App. P. 9.030 (a)(2)(A)(iv), the Petitioner must establish that the 

decision to be reviewed “expressly and directly conflicts with a decision of 

another district court of appeal or the supreme court on the same question of 

law”. Petitioner has failed to meet this burden and has failed to justify this 

Honorable Court extending its discretionary jurisdiction. 

7

CONCLUSION 

For the reasons stated herein, it is respectfully suggested that this 

Honorable Court deny Petitioner’s request that discretionary jurisdiction be 

granted in this cause. 

8

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that a true and correct copy of the foregoing 

has been furnished by U.S. Mail this 30th day of October, 2006 to Lawrence 

R. Metsch, Esquire, 20801 Biscayne Boulevard, Suite 307, Aventura, FL 

33180-1423; and Steven H. Shulman, Esquire, 2385 Executive Center Drive, 

Suite 360, Boca Raton, FL 33431. 

LAW OFFICES OF ADAM G. HEFFNER, P.A. 

Attorneys for Respondents 

1900 N.W. Corporate Boulevard, Suite 301-West 

Boca Raton, FL 33431 

561-241-5551 – Telephone 

561-241-5699 – Fax 

By:____________________________________ 

Adam G. Heffner, Esquire 

Florida Bar No. 438057 

9

CERTIFICATE OF COMPLIANCE 

Pursuant to Rule 9.210(b)(2), Florida Rules of Appellate Procedure 

(1977), I hereby certify that the foregoing Answer Jurisdictional Brief has 

been printed in Times New Roman 14-point font. 

____________________________________ 

Adam G. Heffner, Esquire 

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respondents' answer jurisdictional brief - Florida Supreme Court

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