       Third District Court of Appeal
                                State of Florida

                           Opinion filed January 17, 2018.
          Not final until disposition of timely filed motion for rehearing.
                                ________________

                                 No. 3D16-1820
                           Lower Tribunal No. 12-08-M
                              ________________

                The Sampson Farm Limited Partnership,
                                     Appellant,

                                         vs.

  Mark D. Parmenter, as Personal Representative of the Estate of
           Marjorie A.S. Parmenter and Individually,
                                     Appellee.


      An Appeal from the Circuit Court for Monroe County, Timothy J. Koenig,
Judge.

      Haile Shaw & Pfaffenberger, P.A., and Gary A. Woodfield and Susan B.
Yoffee (North Palm Beach), for appellant.

      The Silver Law Group, P.A., and Michael J. Healy and Robert A. Bernstein,
for appellee.


Before SUAREZ, LAGOA, and LOGUE, JJ.

      LAGOA, J.

      Appellant, The Sampson Farm Limited Partnership (“Sampson Farm”),

appeals from the trial court’s order granting Appellee, Mark D. Parmenter’s motion
for summary judgment and granting the Final Judgment Determining Purchase

Right of Partnership Interest. Because the trial court lacked personal jurisdiction

over Sampson Farm and Sampson Farm did not waive its jurisdictional objection,

we reverse the trial court’s order granting summary judgment and Final Judgment

Determining Purchase Rights of Partnership Interest, and remand to the trial court

to dismiss the Amended Petition against Sampson Farm.

1.    FACTUAL AND PROCEDURAL HISTORY

      This case involves a familial dispute over ownership of a fraction of a family

farm in Massachusetts. On April 6, 2011, Marjorie Parmenter, a Florida resident,

died intestate. At the time of her death, Marjorie Parmenter held a 0.2% limited

partnership interest in Sampson Farm, a Massachusetts limited partnership, which

owns and operates a working farm in Westport, Massachusetts.1

      Marjorie Parmenter signed the Sampson Farm Agreement of Limited

Partnership (the “Agreement”) as a limited partner. The Agreement, which has an

effective date of November 7, 2005, expressly provides that it is governed by

Massachusetts law.

      Section 10.5(a) of the Agreement provides that if, upon a partner’s death,

that partner’s interest is to pass to anyone other than either another partner or


1 At the time of her death, Marjorie Parmenter also held an undetermined
partnership interest as a beneficiary in the estate of her uncle, Wordell Sampson,
who predeceased her and whose estate was being administered in Massachusetts.

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someone in the deceased partner’s family (specifically defined in section 10.1 of

the Agreement to generally exclude spouses), Sampson Farm has an option to

purchase that partnership interest within one year of the partner’s date of death. If

Sampson Farm does not exercise its option, the Agreement grants the remaining

partners an additional thirty-day option to purchase the decedent’s interest

themselves. Finally, pursuant to section 10.5(c) of the Agreement, each partner

agreed that to the extent his or her partnership interest was to pass to anyone other

than another partner or family member, the partnership interest would be held in

the partner’s estate until the expiration of the Agreement’s option periods.

      On January 20, 2012, Mark D. Parmenter (“Parmenter”), Marjorie

Parmenter’s widower, filed a petition for probate proceedings to administer his

wife’s estate (the “Estate”), and on January 25, 2012, Parmenter was appointed

personal representative. On August 14, 2014, an Order of Discharge was entered

closing the Estate.

      On September 4, 2014, Parmenter, as former personal representative, filed a

petition to reopen the Estate pursuant to section 733.903, Florida Statutes (2014),

“solely for the purpose of doing additional procedures necessary in order to clarify

distributions.” On September 9, 2014, the trial court entered an order revoking the

previous Order of Discharge and issued Letters of Administration to Parmenter.




                                          3
        On October 8, 2014, Parmenter, both individually as beneficiary and as the

personal representative, filed an adversary petition (“the Petition”) in the probate

action for a declaratory judgment determining that he owned Marjorie’s

partnership interest in Sampson Farm because Sampson Farm failed to file a claim

against the Estate and thus lost its rights to invoke the option to purchase

Marjorie’s partnership interest. Of significance to this appeal, the Petition2 alleged

that:

                     3. Part of the assets belonging to Marjorie as
              included in the Estate of Wordell Sampson was an
              interest in Sampson Farm LLP, a limited liability
              partnership under the laws of the Commonwealth of
              Massachusetts. The Sampson Farm LLP is a partnership
              whose business enterprise is the holding [of] real
              property and operating an agriculture business thereon in
              Bristol County, Massachusetts.

        Sampson Farm moved to quash service of process and to dismiss for lack of

personal jurisdiction, challenging the lack of factual allegations providing a basis

for either personal jurisdiction under Florida’s long arm statute or minimum

contacts with Florida under federal due process requirements. The trial court

denied the motion, and Sampson Farm filed its answer and reasserted lack of

personal jurisdiction as affirmative defenses.3       The parties cross-moved for

2 Parmenter’s subsequent Amended Petition filed on October 5, 2015, did not
make any substantive changes to these jurisdictional allegations.
3 Specifically, Sampson Farm averred in both its initial answer and its answer to
the Amended Petition as follows:

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summary judgment. As part of its opposition to Parmenter’s motion for summary

judgment, Sampson Farm again asserted that the trial court lacked personal

jurisdiction over it. The trial court subsequently entered the Final Judgment in

favor of Parmenter. Regarding the question of personal jurisdiction, the trial court,

in its written order, concluded that it had “subject matter jurisdiction to adjudicate

this cause and personal jurisdiction over all of the parties to this action. Both

parties have appeared herein and have sought affirmative relief from this Court

beyond issues related to jurisdiction.”   This appeal ensued.

II.   ANALYSIS

      On appeal, Sampson Farms raises several issues. We address only one,

however, as this issue is dispositive of this appeal. Sampson Farm argues that the

trial court did not have personal jurisdiction to determine the issues raised in

Parmenter’s Petition, and further argues that the trial court erred in determining

      2. As and for its Second Affirmative Defense, this court lacks
      personal jurisdiction over Sampson Farm. This is not an in rem
      proceeding; therefore, personal jurisdiction over Sampson Farm is
      required. The Petition fails to contain any jurisdictional allegations
      over Sampson Farm, nor could it.

      3. As and for its Third Affirmative Defense, this court’s attempt to
      exercise jurisdiction over Sampson Farm violates the Florida long-arm
      statute. Section 48.193, Florida Statutes.

      4. As and for its Fourth Affirmative Defense, this court’s attempt to
      exercise jurisdiction over Sampson Farm violates the Due Process
      clause of the United States Constitution.


                                          5
that it waived its jurisdictional objection. We review de novo the issue of personal

jurisdiction over a foreign corporation. Camp Illahee Invs. Inc. v. Blackman, 870

So. 2d 80, 83 (Fla. 2d DCA 2003). We first address the trial court’s finding that

Sampson Farm sought affirmative relief from the trial court and therefore waived

any jurisdictional challenge.

      The law in Florida is well established that:

             “A defendant who timely asserts a challenge to the
             court’s jurisdiction over the person of the defendant is
             not prejudiced by participation in the trial of the suit and
             defending the matter thereafter on the merits. His
             challenge is preserved and he may obtain a review of the
             question of personal jurisdiction upon appeal should he
             suffer an adverse final judgment in the cause. . . .

             However, a timely objection to personal jurisdiction may
             nevertheless be waived. In jurisdictions which follow the
             rule that a defense on the merits is not a waiver, the
             courts have long held that a defendant who goes beyond
             matters of defense and seeks affirmative relief waives a
             previously asserted objection to the personal jurisdiction
             of the court. Thus a majority of federal courts have held
             that the filing of a permissive counterclaim is a request
             for affirmative relief which waives an objection to
             personal jurisdiction notwithstanding that the objection is
             timely made.”

             We agree with the above reasoning of the federal and
             Florida courts that adhere to its reasoning and hold that a
             defendant waives a challenge to personal jurisdiction by
             seeking affirmative relief.

Babcock v. Whatmore, 707 So. 2d 702, 704-05 (Fla. 1998) (citations omitted)

(quoting Hubbard v. Cazares, 413 So. 2d 1192, 1193 (Fla. 2d DCA 1981)


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(concluding that former husband’s motion for relief from judgments did not waive

his challenge to personal jurisdiction because it “was not a plea for affirmative

relief but rather was a defensive motion seeking to avoid the judgments”).

      As this Court concluded in Berne v. Beznos, 819 So. 2d 235 (Fla. 3d DCA

2002), “under Babcock, so long as the defending party makes a timely objection to

personal jurisdiction, the defendant may defend the case without waiving the

objection.   The court’s example of affirmative relief which would waive the

jurisdictional objection is the assertion of a permissive counterclaim.” Id. at 238

(citation omitted). As such, “if a defending party timely raises an objection to

personal jurisdiction or service of process, then that defendant may plead to the

merits and actively defend the lawsuit without waiving the objection.” Id.

      Here, Sampson Farm first raised its objection to personal jurisdiction by way

of its motion to dismiss. After the trial court denied the motion, it is undisputed

that Sampson Farm again objected to the trial court’s lack of personal jurisdiction

in its first responsive pleading.    Significantly, Sampson Farm did not seek

affirmative relief, as it only pled to the merits and actively defended itself by way

of an answer, affirmative defenses, and a motion for summary judgment.

Affirmative relief is best defined as “‘[r]elief for which defendant might maintain

an action independently of plaintiff’s claim and on which he might proceed to

recovery, although plaintiff abandoned his cause of action or failed to establish



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it.’” Heineken v. Heineken, 683 So. 2d 194, 197 (Fla. 1st DCA 1996) (quoting

Grange Ins. Ass’n v. State, 757 P.2d 933, 940 (Wash. 1988) (en banc)). We

therefore conclude that the trial court erred in finding that Sampson Farm sought

affirmative relief by actively defending the lawsuit “beyond issues related to

jurisdiction” and thereby waived its challenge to personal jurisdiction. Under

Babcock and Berne, Sampson Farm did not waive its objection to personal

jurisdiction, as neither the filing of an answer with affirmative defenses nor the

filing of a motion for summary judgment constitute affirmative relief that would

waive a challenge to personal jurisdiction.     Both the answer and motion for

summary judgment are defensive in nature. See Cumberland Software, Inc. v.

Great Am. Mortg. Corp., 507 So. 2d 794 (Fla 4th DCA 1987) (holding that the

filing of an answer and counterclaim did not waive defense for lack of personal

jurisdiction where the answer asserted lack of personal jurisdiction in affirmative

defenses and the counterclaim was compulsory).

      We now turn to the issue of whether personal jurisdiction exists over

Sampson Farm. Sampson Farm argues that the entry of final judgment in favor of

Parmenter was in error because Parmenter failed to allege any factual basis to

establish personal jurisdiction over it.

      In determining whether the trial court had personal jurisdiction over

Sampson Farm, we first look to whether the complaint alleges sufficient



                                           8
jurisdictional facts to bring Sampson Farm within the purview of Florida’s long-

arm statute. Am. Exp. Ins. Servs. Eur. Ltd. v. Duvall, 972 So. 2d 1035, 1038 (Fla.

3d DCA 2008).       The plaintiff bears the initial burden of alleging sufficient

jurisdictional facts in his or her complaint to establish the basis for the court’s

long-arm jurisdiction under section 48.193, Florida Statutes (2014). Execu-Tech

Bus. Sys., Inc. v. New Ogi Paper Co. Ltd., 752 So. 2d 582 (Fla. 2000); Venetian

Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989).     If the plaintiff meets

this hurdle, the second inquiry is whether the defendant possesses sufficient

minimum contacts with Florida to satisfy constitutional due process requirements.

Venetian Salami, 554 So. 2d at 500. This requires the court to determine whether a

non-resident defendant’s conduct in connection with Florida is such that the

defendant “should reasonably anticipate being haled into court” here. World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

      A review of the record shows that neither the Petition nor the Amended

Petition contained any allegations sufficient to establish personal jurisdiction over

Sampson Farm. Indeed, Parmenter alleges in both his Petition and Amended

Petition that Sampson Farm is a Massachusetts limited partnership whose business

is to own and operate an agricultural business in Massachusetts.4 Moreover,
4 Because both the Petition and Amended Petition failed to plead a legally

sufficient basis for long-arm jurisdiction, Sampson Farm was not required to file
affidavits or present other evidence to contest the jurisdictional issue. See
Crownover v. Masda Corp., 983 So. 2d 709, 713 (Fla. 3d DCA 2008).


                                         9
Parmenter failed to establish any factual basis for personal jurisdiction in

opposition to Sampson Farm’s motion for summary judgment.5 Parmenter instead

focuses his argument below and on appeal on the notion that Sampson Farm’s lack

of contacts with Florida are not relevant for personal jurisdiction because of the

special nature of probate. We find Parmenter’s argument unpersuasive.

      This Court is bound by prior precedent, and this Court’s opinion in Wolf

Sanitary Wiping Cloth, Inc. v. Wolf, 526 So. 2d 702 (Fla. 3d DCA 1988), receded

from on other grounds by C.A.T. LLC. v. Island Developers, Ltd., 827 So. 2d 373,

374 (Fla. 3d DCA 2002) (en banc),6 is indistinguishable from the facts of the

instant case. In Wolf, at the time of his death, Mr. Wolf owned five hundred

shares in Wolf Sanitary Wiping Cloth, Inc., a family-owned Michigan corporation.

5 Because Parmenter failed to establish a basis for the exercise of long-arm
jurisdiction under section 48.193, we need not address the issue of minimum
contacts and constitutional due process. It is clear, however, that with respect to
this second prong, the record contains no evidence that Sampson Farm has engaged
in any business in Florida, bought or sold property in Florida, or engaged in any
other contact with Florida such that Sampson Farm could reasonably expect to be
haled into court here. Indeed, the record shows that the petition was served on
Sampson Farm’s registered agent in Massachusetts. Based on the record here,
exercise of personal jurisdiction would “offend ‘traditional notions of fair play and
substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
6 In C.A.T., this Court receded from the holding in Wolf that a stockholder’s
derivative suit cannot be brought through a declaratory proceeding in a probate
proceeding. 827 So. 2d at 374. Wolf’s alternative holding that the trial court
lacked personal jurisdiction over the defendant is applicable here and remains
binding precedent.


                                         10
Id. at 703.   Mr. Wolf’s shares were subject to a stock repurchase agreement

executed in Michigan by the corporation prior to Mr. Wolf’s death. Id. Mr.

Wolf’s estate was probated in Miami-Dade County, and the personal representative

brought an action for declaratory relief requesting that the trial court construe the

rights of the estate under the terms of the repurchase agreement. Id.

      Of significance to this appeal, this Court in Wolf held, in the alternative,7

that the trial court lacked personal jurisdiction over the Michigan corporation. Id.

at 705. First, this Court noted that the company was a foreign corporation and that

there were no allegations that it had contacts sufficient to subject it to personal

jurisdiction in Florida. Id. This Court further rejected the argument that the

corporation was an “interested person” and thus subject to formal notice pursuant

to section 731.301(1), Florida Statutes (1985).8 Id. Specifically, this Court found

that section 731.301(1) was not “a shorthand method of subjecting all potential

litigants to the jurisdiction of the probate court.” Id. While recognizing that

personal representatives have a duty to marshal estate assets with dispatch, this

Court concluded that duty “does not empower a personal representative to enforce


7 “[W]here a decision rests on two or more grounds, none can be relegated to the
category of obiter dicta.” Clemons v. Flagler Hosp., Inc., 385 So. 2d 1134, 1136
n.3 (Fla. 5th DCA 1980).
8 Substantively, the 1985 and current versions of that statute are not significantly
different, although procedural portions of the 1985 statute were subsequently
removed from the statute and moved to Florida Probate Rule 5.040.

                                         11
contract rights against a foreign corporation where jurisdiction has not been

obtained.” Id. at 706.

      Moreover, it is well established—both generally, and specifically with

regard to adversary actions arising out of probate—that a pleading must make the

requisite allegations of personal jurisdiction. Galego v. Robinson, 695 So. 2d 443,

444 (Fla. 2d DCA 1997); In re Estate of Tyler, 543 So. 2d 1307, 1307-08 (Fla. 4th

DCA 1989); Wolf, 526 So. 2d at 705; see also Kountze v. Kountze, 20 So. 3d 428,

432-33 (Fla. 2d DCA 2009). Thus, even if Sampson Farm fell within the scope of

section 731.301(1)’s notice provision, Parmenter failed to provide any evidence of

Sampson Farm’s minimal contacts with Florida sufficient to meet the

constitutional due process requirements necessary to exercise personal jurisdiction

over it. Accordingly, we reverse and remand to the trial court to vacate the Final

Judgment in favor of Parmenter and dismiss the Amended Petition against

Sampson Farm for lack of personal jurisdiction.

      Reverse and remand for proceedings consistent with opinion.




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