IN THE THIRD DISTRICT COURT OF APPEAL STATE OF FLORIDA

SunTrust Bank,

Appellant,

v.

DCA Case No.: 3D09-19~2 ~1

L.T. Case No.: 09-140a$.[;~A 0~09)

Appellees.

Electronic Wireless Corp. and Fabian Pesantes,

----------------------------_./

f'v L'l N

REPLY BRIEF OF APPELLANT, SUNTRUST BANK

ON APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

Jeffrey T. Kuntz Roland E. Schwartz GRA YROBlNSON, P .A.

401 E. Las Olas Boulevard, Suite 1850 FOli Lauderdale, FL 33301

Telephone: 954.761.8111ITelecopier: 954.761.8112

and

John M. Brennan GRAyRoBlNSON, P.A.

301 East Pine Street, Suite 1400 Orlando, FL 32801

Telephone: 407.843.8800ITelecopier: 407.244.5690

Attorneys for Appellant

TABLE OF CONTENTS

TABLE OF CONTENTS '" i

TABLE OF AUTHORITIES ii

1. Introduction 1

II. Argument 2

A. Form 1.091 Does Not Require The Address Of The Clerk of Court 2

B. Electronic Wireless Was Properly Served 2

C. The Spanish and French Language Information Sheets Were Provided to

Pesantes 4

D. The Order Under Review Is An Appealable Non-Final Order 4

III. Conclusion 7

CERTIFICATE OF COMPLIANCE 8

CERTIFICATE OF SERVICE 9

TABLE OF AUTHORITIES

Cases

Barnett Bank of Martin County v. RGA Dev. Co., 606 So. 2d 1258 (Fla. 4th DCA

1992) 6

Bell v. Real Estate Florida Commercial Int'[ Inc., 995 So. 2d 1029 (Fla. 4th DCA

2008) 3

Chapman v. Sheffield, 750 So. 2d 140 (Fla. 1 st DCA 2000) 5

Dance v. Tatum, 629 So. 2d 127, 129 (Fla. 1993) 6

Fisher v. Int'l Longshoremen's Ass'n, 827 So. 2d 1096 (Fla. 1st DCA 2002) .......... 5

Fla. Nat. Bank v. Halphen, 641 So. 2d 495 (Fla. 3d DCA 1994) 3

Koniver Stern Group v. Layfield, 811 So. 2d 812 (Fla. 3d DCA 2002) 2, 3

Polk County v. Sojka, 702 So. 2d 1243 (Fla. 1997) 6

RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002 (Fla. 3d DCA 1993) 5

Re-Employment Services, Ltd. v. National Loan Acquisitions Co., 969 So. 2d 467

(Fla. 5th DCA 2007) , 5

Slomowitz v. Walker, 429 SO.2d 797, 798-799 (Fla. 4th DCA 1983) 3

Soles v. Soles, 536 So. 2d 367 (Fla. 1st DCA 1988) 6

Telf Corp. v. Gomez, 671 So. 2d 818 (Fla. 3d DCA 1996) 3

Statutes

Section 48.081, Florida Statutes 3

Rules

Form 1.902, Florida Rules of Civil Procedure 2,4

Rule 9. 130(a)(3)(C)(i), Florida Rules of Civil Procedure 5, 7

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I. Introduction

SunTrust presented the trial court with a verified return of service and summons for each defendant and no evidence was presented to refute either. The Appellees' Answer Brief fails to sufficiently address any of the issues raised in Sun'Irust's Initial Brief. The Appellees merely raise arguments, often without reference to any authority, without addressing or even referencing Sun'Trust's Initial Brief nor the authority contained therein. Therefore, the trial court's order quashing service of process should be quashed.

The Appellees arguments can be separated into two groups. The corporate Appellee, Electronic Wireless, argues that "there are two issues" with the service of process, See Answer Brief at pg. 3. According to Electronic Wireless, the issues with the service of process are (I) the alleged failure to state where the clerk of court for the trial court was located; and (2) Pes antes is not identified as to what capacity he has at the corporate Appellee/Defendant, Electronic Wireless. Id. at pg. 4-5. As to the individual Appellee, Fabian Pesantes, in addition to joining the argument relating to the address of the clerk of court, Mr. Pes antes argues that the process did not contain the "Spanish and Creole returns" allegedly mandated by "form 1.9020" Id. at pg. 5. The final argument is made by both Appellees wherein they again attempt to argue SunTrust cannot maintain this appeal based upon the trial court's inclusion in the order under review a provision allowing SunTrust to

1

agam serve the defendants. These arguments fail and the trial court's order

quashing service of process should be reversed.

ll. Argument

A. Form 1.091 Does Not Require The Address Of The Clerk of Court

As they did in the trial court, the Appellees' both argue the summonses

served upon Electronic Wireless and Pesantes were deficient based upon the

alleged failure to state "where the clerk of the court is to file a response." See

Answer Brief at pg. 4.1 The Appellees' completely ignore the fact that Form

1.091, Florida Rules of Civil Procedure does not require or include the address of

the clerk of court. Therefore, the issue raised by the Appellees' is meaningless. It

is simply not a requirement that the summonses include the address of the clerk of

court and cannot justify quashing service of process.

B. Electronic Wireless Was Properly Served

Electronic Wireless argues that "it is not what is in the court file, but what is

required to be served," Id. at pg. 5. However, Electronic Wireless is proceeding

without the benefit of any evidence to rely upon and "[a] simple denial of service

does not constitute clear and convincing evidence." Koniver Stern Group v.

Layfield, 811 So. 2d 812 (Fla. 3d DCA 2002). A "process server's return of

service on a defendant which is regular on its face is presumed to be valid absent

1 It appears the Appellees' still focus on only one summons despite the fact that each Appellee was served with a different summons.

2

clear and convincing evidence presented to the contrary." Telf Corp. v. Gomez, 671 So. 2d 818 (Fla. 3d DCA 1996) citing Fla. Nat. Bank v. Halphen, 641 So. 2d 495 (Fla. 3d DCA 1994); Koniver Stern Group v. Layfield, 811 So. 2d 812 (Fla. 3d DCA 2002); see also Bell v. Real Estate Florida Commercial Int'! Inc., 995 So. 2d 1029 (Fla. 4th DCA 2008). Further, evidence must be presented to corroborate the defendant's denial of service." Slomowitz v. Walker, 429 So.2d 797, 798-799 (Fla. 4th DCA 1983) (emphasis added).

There are two separate reasons to uphold the service of process on Electronic Wireless and that require reversal of the order below. First, the unrefuted Verified Return of Service clearly states that service was made upon Electronic Wireless at 11 :40am by serving Andres Cardona, an individual authorized to accept service of process on behalf of Electronic Wireless. [App. 10 at 64-65]. Having failed to present any evidence to refute this statement, service is valid. Second, the summons reflects service was made upon Andres Cardona, an employee of Electronic Wireless at 11:40 am on February 23, 2009. [App. 3 at 8-9]. Similarly, there was no evidence presented to refute this statement and service is valid pursuant to section 48.081, Florida Statutes.

Electronic Wireless failed to present any evidence below and, therefore, failed to establish any basis for quashing the service of process.

3

C. The Spanish and French Language Information Sheets Were Provided

to Pes antes

In his Answer Brief, Pesantes again argues SunTrust failed to provide the

"Spanish and Creole" information sheet. See Answer Brief at pg. 5. However, no

attempt is made to refute the arguments raised in SunTrust's Initial Brief. First,

there is in fact no Spanish and Creole Language Information Sheet required by

Form 1.902, Florida Rules of Civil Procedure. Instead, Form 1.902 requires a

Spanish and French Language Information Sheet. The second flaw to Pesantes

argument, and perhaps the fatal flaw, is that the record reflects SunTrust did

provide the Spanish and French Language Information Sheet to Pesantes. [App. 7

at 29]. The process server filed his Verified Return of Service providing service of

the summons as issued by the clerk of court was effectuated. Id. Pesantes failed to

offer any evidence to refute this statement and, therefore, Pesantes argument fails.

D. The Order Under Review Is An Appealable Non-Final Order

The Appellees argue that the trial court's inclusion in the order under review

of a provision allowing SunTrust an additional one-hundred and twenty (120) days

to serve the Appellees precludes Sun'Irust from appealing the trial court's order.

They argue that by again attempting to serve the Appellees, SunTrust has benefited

from the order and the Sun'Irust's "acceptance of benefits requires dismissal or

affirmance." See Answer Brief at pg. 6. This exact argument was raised in

Appellees' "Motion to Dismiss" and rejected by a panel of this Court on August

4

31, 2009. The same arguments that precluded the Appellees from prevailing on the motion to dismiss preclude the argument from prevailing here.

Rule 9.130(a)(3)(C)(i) gives this Court jurisdiction over "those interlocutory orders that determine issues involving service of process or the applicability of the long arm statute." Fisher v. Int'l Longshoremen's Ass 'n, 827 So. 2d 1096, 1097 (Fla. 1 st DCA 2002). "It is, of course, true that an order quashing service of process is an appealable non-final order." RD & G Leasing, Inc. v. Stebnicki, 626

So. 2d 1002, 1003 (Fla. 3d DCA 1993) (noting that an appeal under Rule 9.130

"justiflies] an interlocutory appeal as a matter of right"). See also Re-Employment Services, Ltd. v. National Loan Acquisitions Co., 969 So. 2d 467, 470 (Fla. 5th DCA 2007); Chapman v. Sheffield, 750 So. 2d 140, 142 (Fla. 1st DCA 2000).

Finally, as is acknowledged in the Appellees' "Answer Brief," the Appellees have yet to take a position as to "whether the new service is effective or not." See Answer Brief at pg. 6. SunTrust has not benefited from anything within the trial court's order and the first action taken by the Appellees' in the trial court since the "new service" is to seek an enlargement of time to respond to the complaint.' Even if the Appellees did file an answer to the complaint, this Court's jurisdiction would not be divested for a number of reasons. Most importantly, nothing done in the trial court can divest this Court of jurisdiction. See Soles v. Soles, 536 So. 2d 367

2 See Exhibit A to "SunTrust Bank's Response in Opposition To Motion To Dismiss Appeal." 5

(Fla. 1 st DCA 1988). But see, Barnett Bank of Martin County v. RGA Dev. Co., 606 So. 2d 1258, 1260 (Fla. 4th DCA 1992). As to the merits, the Appellees could answer the complaint while maintaining an objection to service of process as an affirmative defense.

Therefore, the Issue is anything but resolved in the trial court and the Appellees are using both the trial court and this Court to further delay the inevitable judgment that will be entered against them. Otherwise, the Appellees would be able to indefinitely delay the proceedings below by continually delaying the trial court proceeding and allowing, albeit not in good faith, SunTrust additional time to serve the Appellees.

Further, the Appellees' citation to the supreme court's holding in Dance v.

Tatum , 629 So. 2d 127, 129 (Fla. 1993) is misplaced and Tatum is entirely inapplicable. In Tatum, the supreme court noted "Both parties agree that when a party recovers a judgment and accepts the benefits thereof, he is, on appeal, estopped to seek a reversal of that judgment." ld. at 129. SunTrust is neither appealing a judgment nor did it accept the benefits of the order under review. The Appellees' citation to Polk County v. Sofka, 702 So. 2d 1243 (Fla. 1997) is equally misplaced. Like Tatum, Sofka involved a final judgment. In Sojka, the supreme COUlt held that the district court was without jurisdiction to decide the issues presented "because, having requested and received a new trial, the County is

6

deemed to have waived its right immediately to seek appellate review of rulings made prior to, or during, the previous trial." Id. at 1244-1245. In Sojka the parties attempted to execute to grant the district court jurisdiction it did not otherwise have. Id. In this appeal of a non-final order, the Court has jurisdiction pursuant to Rule 9.l30(a)(3)(C)(i) and nothing was done -or could be done- to divest this Court of that jurisdiction.

III. Conclusion

The trial court erred as a matter of law when it entered its order quashing service of process on both Electronic Wireless and Pesantes and, therefore, the order should be reversed.

7

CERTIFICATE OF COMPLIANCE

WE HEREBY CERTIFY that this brief complies with the font requirements

of Rule 9.210 of the Florida Rules of Appellate Procedure and the foregoing brief

is Times New Roman, fourteen point, proportionately spaced.

GRAyROBINSON, P.A. Attorneys for SunTrust Bank

401 E. Las Olas Boulevard, Suite 1850 Fort Lauderdale, FL 33301 954.761.8111

Jeffrey T. Kuntz Florida Bar No. 26345 Roland E. Schwartz

Florida Bar No. 712078

and

John M. Brennan Florida Bar No. 0297951 GRAyRoBlNSON, P.A.

301 East Pine Street, Suite 1400 Orlando, FL 32801 407.843.8800

407.244.5690 - fax

8

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on Wednesday, September 30, 2009, a true

and correct copy of the foregoing was furnished via hand delivery to Ainslee R.

Ferdie, Esquire, Attorneys for Defendants by special appearance, Ferdie and

Lones, Chartered, 717 Ponce de Leon Blvd., Suite #223, Coral Gables, Florida

33134.

GRA YROBINSON, P .A. Attorneys for SunTrust Bank

401 E. Las Olas Boulevard, Suite 1850 Fort Lauderdale, FL 33301 954.761.8111

954.76\~- fax

By: /?c

Jeffrey T. Kuntz Florida Bar No. 26345 Roland E. Schwartz Florida Bar No. 712078

and

John M. Brennan Florida Bar No. 0297951 GRA YROBINSON, P .A.

301 East Pine Street, Suite 1400 Orlando, FL 32801 407.843.8800

407.244.5690 - fax

II 2764936 vi

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