IN THE THIRD DISTRICT COURT OF APPEAL STATE OF FLORIDA

SunTrust Bank,

Appellant,

v.

DCA Case No.:

L.T. Case No.: 09-14005 CA 01 (09)

Electronic Wireless Corp. and Fabian Pesantes,

Appellees.

__________________________ ~I

INITIAL 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 GRAYRoBINSON, P.A.

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

Telephone: 954.761.8111ITelecopier: 954.761.8112

and

John M. Brennan GRAYRoBINSON, P.A.

301 East Pine Street, Suite 1400 Orlando, FL 32801

Telephone: 407.843.8800/Telecopier:-407.244.5690

AH rneys for Appellant

TABLE OF CONTENTS

TABLE OF CONTENTS i

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT 1

STATEMENT OF THE CASE AND OF THE FACTS 1

STANDARD OF REVIEW 5

SUMMARY OF ARGUMENT 6

ARGUMENT 7

1. A Return of Service is Presumed Valid Unless Clear and Convincing

Evidence is Presented to the Contrary 7

II. Sun Trust Complied with Each Requirement Raised by Electronic Wireless

and Pesantes 8

1. The Spanish and French Language Information Sheet Were Provided to

Pesantes 9

ii. Service on Electronic Wireless Was Made on an Employee of Electronic

Wireless' Between the Hours of 10:00am and 12:00pm 10

iii. The Verified Return of Service was Made By the Person Who Effectuated

Service 13

iv. The Verified Return of Service and the Summons Included the Process

Server's Identification Number. 14

v. The Summons Included the Address to Serve a Responsive Pleading. There is no Requirement that the Summons Include the Clerks Address ........ 14

CONCLUSION 15

CFR TIFICATE OF COMPLIANCE 16

CERTIFICATE OF SER'lICE 17

TABLE OF AUTHORITIES

Cases

Alvarado v. Cisneros, 919 So.2d 585 (Fla. 3d DCA 2006) 10

Beckley v. Best Restorations, Inc., --- So.3d ----, 4D09-249, 2009 WL 1531811 at

* 1 (Fla. 4th DCA June 3, 2009) 9

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

2008) 11

Fla. Nat. Bank v. Halphen, 641 So. 2d 495 (Fla. 3d DCA 1994) 11, 16

Koniver Stern Group v. Layfield, 811 So. 2d 812 (Fla. 3d DCA 2002) 11

Lazo v. Bill Swad Leasing Co., 548 So.2d 1194 (Fla. 4th DCA 1989) 16

McIntosh v. Wibbeler, 106 So.2d 195 (Fla. 1958) 11

Mecca Multimedia, Inc. v. Kurzbard, 954 So.2d 1179 (Fla. 3d DCA 2007) ~ 10

. 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) 10

Richardson v. Albury, 505 So. 2d 521 (Fla. 2d DCA 1987) 15

S.T.R. Industries, Inc. v. Hidalgo Corp., 832 So.2d 262 (Fla. 3d DCA 2002) 15

Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983) 12

Stebnickiv. Wolfson, 584 So. 2d 117 (Fla. 3d DCA 1991) 12

Telf Corp. v. Gomez, 671 So. 2d 818 (Fla. 3d DCA 1996) 11, 17

Statutes

Section 48.081, Florida Statutes - 15

Section 48.091, Florida Statutes 15

ii

Other Authorities

Form 1.091, Florida Rules of Civil Procedure : 19

Form 1.902, Florida Rules of Civil Procedure 6, 13

Rules

Rule 1.070(b), Florida Rules of Civil Procedure 11, 18

Rule 1.900(a), Florida Rules of Civil Procedure 13

. Rule 9.130(a)(3)(C)(i), Florida Rules of Appellate Procedure 5, 9

iii

PRELIMINARY STATEl\ffiNT

SunTrust Bank, the Appellant and Plaintiff below, will be referenced as

"Sun'Irust." The Appellees' and Defendants' below, Electronic Wireless

Corporation and Fabian Pesantes will be referenced as the "Appellees" or

individually as "Electronic Wireless" and "Pesantes." References to documents

contained in the Appendix for the Initial Brief of Appellant will be referenced by

"App." followed by the tab number and page number(s), e.g. [App. _ at~.

STATEMENT OF THE CASE AND OF THE FACTS

This appeal of a non-final order concerns the trial court's entry of an order

quashing service of process on Electronic Wireless and Pesantes. This Court has

jurisdiction pursuant to Rule 9.130(a)(3)(C)(i), Florida Rules of Appellate

Procedure. 1

The essential facts are straightforward and undisputed. On February 20,

2009, SunTrust filed a three count complaint in the Circuit Court in and for Miami-

Dade County, Florida. [App. 9 at 32-63].2 By its Complaint, SunTrust seeks to

recover funds lent to the Electronic Wireless pursuant to a "Commercial Note"

[App. 9 at 40-57] and guaranteed by Pesantes pursuant to an "Unconditional

Guaranty." [App. 9 at 58-60]. Notably, the Commercial Note states "This Note

lRD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002 (Fla. 3d DCA 1993) ("It is, of course, true that an order quashing service of process is an appealable non-final order.").

2 At the hearing in the trial court, SunTrust provided a copy of the docket maintained by the CL'I'k of Court. [Api' 5 at 24-25].

1

shall be governed by the Laws of Florida and, unless applicable law provides

otherwise, in the event of any legal proceeding arising out of or related to this

Note, the Bon-ower consents to the jurisdiction and venue of any court located in

Florida." [App. 9 at 42].

Also on February 20, 2009, a "Civil Cover Sheet" was filed with the trial

court [App. 6 at 26] and two separate summonses were issued by the Clerk of

Court. [App. 7 at 27-29 & 8 at 30-31]. Both summonses reflect they were issued

by "Deputy Clerk Marais Hernandez" and indicate a number 0246 next the name

of the deputy clerk. [App. 7 at 28 & 8 at 31]. The first summons was issued for

service upon Electronic Wireless. [App. 8 at 30-31]. As contained within the trial

court's court file, that first summons was two pages. [App. 8 at 30-31]. The

second summons was issued for service upon Fabian Pesantes, an individual.

[App. 7 at 27-29]. As contained within the trial court's court file, the second

summons was three pages and directed service be made upon Fabian Pes antes in

his individual capacity. [App. 7 at 27-29]. The third page of the summons issued

for Pesantes contained the Spanish and French language information suggested by

Form 1.902, Florida Rules of Civil Procedure.' [App. 7 at 29].

3 Pesantes argued the summons was required to contain Spanish and Creole language information, however, the comments to FODn 1.902, Florida Rules of Ci vil Procedure state: "The f0D11 for personal service on natural persons contains Spanish and French versions of the English text to ensure effective notice on all Floridians. In the event of space problems in the summons f01111, the committee recommends that the non-English portions be placed on the reverse side of the sum11111:'S," (emphasis ad.ied).

2

On February 23, 2009, three days after its issuance, the first summons was served upon Electronic Wireless. [App. 3 at 8-9]. On March 2~ 2009, the process server filed his Verified Return of Service with the trial court. [App. 10 at 64-65]. The Verified Return of Service was signed "under penalty of perjury" and in the presence of a Notary Public. [App. 10 at 64]. The document states that Enrique Pintado, a certified process server in Miami-Dade County with an identification number of 1241, served Electronic Wireless at 11:40 am on February 23, 2009. [App, 10 at 64]. Further, the document provides that service was made by serving a "true copy of the Summons, Complaint. & Exhibits" upon "Fabian Pesantes, as registered agent, by serving Andres Cardona, as authorized to accept service for [the] registered agent." [App. lfrat 64]. Additionally, the process server stated in his affidavit that "the date and hour of service [were] endorsed thereon .. .in compliance with State Statutes." [App. 10 at 64].

On March 3, 2009, Pesantes was served with the second summons and on March 9, 2009~ the process server filed his Verified Return of Service for service on Pesantes. [App. 11 at 67-68]. The process server's Verified Return of Service for the Pesantes summons states that Enrique Pintado, a certified process server in Miami-Dade County with an identification number of 1241, served Fabian Pesantes on March 2, 2009 at 5: 15 pm. [App. 11 at 67-6 8f This affidavit was signed by the process server in the presence of a notary public and states "I

3

substitute served this Summons, Complaint & Exhibits on Juliana Pesantes as

spouse of the named defendant." [App. 11 at 67-68].

On March 12, 2009, Electronic Wireless and Pesantes made a special

appearance and filed their Motion to Quash. [App.3 at 6-9]. The Motion to Quash

contained five paragraphs which are copied below:

1. Attached is a copy of summons.

2. The process is ambiguous as an attempt to service two parties in a single process.

3. The required Spanish and Creole information are not attached for individual service.

4. Fails to state where original response is to be made by direct address.

5. The return fails to have been properly completed by person making service as required by law.

[App.3 at 6]. On July 13,2009, a hearing was held in the trial court on the Motion

to Quash. [App. 4 at 10-23].4 At the hearing, Electronic Wireless and Eslectronic

Wireless raised the issues contained in the Motion to Quash and added one

additional argument. The additional argument raised by Electronic Wireless and

Pes antes was that "[ w]e agree the return reflects the service but the summons also

does not show the process server's number." [App.4 at 13].

-

4 Prior to the hearing on the Motion to Quash, SunTrust filed copies of the process server's Verified Retum of Service for both Electronic Wireless and Pesantes. [App, 12J. However, the filing was duplicative as the original signed documents were already contained within the court file.

4

In response to the myriad of arguments raised by Electronic Wireless and Pesantes, SunTrust proved: the appellees only attached to the their Motion to Quash the corporate summons issued by the Clerk of Court [App. 4 at 5-6]; there were two separate summonses and two separate services of process [App. 4 at 5-6]; the required Spanish and French language information was in fact attached to the summons served upon Pesantes [App. 4 at 6]; the summonses stated where the response was to be served [App. 4 at 6]; the return was, in fact, completed by the person making service [App. 4 at 6]; and the summons and Verified Return of Service contained the process server's identification number. [App. 4 at 7-8].

Although each argument raised by Electronic Wireless and Pes antes was refuted, the trial COUlt stated "Lees get it done so there's no question about it. So I'm going to grant your motion to quash the service." [App. 4 at 21]. Thereafter, the trial court entered its Order on July 13, 2009. [App. 2 at 5]. On July 14,2009, Sun'Irust filed its Notice of Appeal [App. 1 at 1-4] and invoked this Court's jurisdiction pursuant to Rule 9.l30(a)(3)(C)(i), Florida Rules of Appellate Procedure.

STANDARD OF REVIEW

A trial court's order determining whether service of process was legally sufficient is subject to de novo review. Beckley v. Best Restorations, Inc., --- So.3d ----, 4D09-249, 2009 WL 1531811 at ';'1 (Fla. 4th DCA June 3, 2009) citing Mecca

5

Multimedia, Inc. v. Kurzbard, 954 So.2d 1179 (Fla. 3d DCA 2007) citing Alvarado v. Cisneros, 919 So.2d 585 (Fla. 3d DCA 2006) ("We review the trial court's order which denied the defendants' motion to quash service of process de novo."); see also Re-Employment Services, Ltd. v. National Loan Acquisitions Co., 969 So.2d 467 (Fla. 5th DCA 2007).

SUlVIMARY OF ARGUMENT-

The trial court erred as a matter of law when it quashed the service of process on both Electronic Wireless and Pesantes. SunTrust's Verified Returns of Service are presumed valid. Not only did Electronic Wireless and Pesantes fail to present clear and convincing _ evidence, they failed to present any evidence to overcome their high burden.

In support of its argument that service of process should be quashed, the appellees concocted a hodgepodge of both actual and fictional requirements. However, as to the actual requirements, SunTrust duly complied with each of the challenges raised by Electronic Wireless and Pesantes.

As to each challenge, SunTrust fully complied with the requirements as provided by Florida law. Thus, the trial court's order quashing service of process should be reversed and the action remanded for the entry of an order validating the service of process nunc pro tunc to the date stated on the subject Verified Returns of Service.

6

ARGUl\1ENT

I. A Return of Service is Presumed Valid Unless Clear and Convincing Evidence is Presented to the Contrary.

This Court has consistently held that "a process server's return of service on

a defendant which is regular on its face is presumed to be valid absent 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'l Inc., 995 So. 2d 1029 (Fla.

4th DCA 2008). Further, "[a] simple denial of service does not constitute clear

and convincing evidence." Koniver Stern Group, 811 So. 2d at 812 citing Telf

Corp., 671 So. 2d at 819. In the trial court, Electronic Wireless and Pesantes failed

to meet their burden required to overcome the Verified Returns of Service. See,

e.g., Mcintosh v. Wibbeler, 106 So. 2d 195, 196 (Fla. 1958).5

Electronic Wireless and Pesantes did not even attempt to challenge either

Verified Return of Service other than by mere "simple denials" by counsel and,

therefore, the service is presumed to be proper. Through both Verified Returns of

Service, SunTrust met its burden and established the initial proof that service was

properly made and the burden then shifted to Electronic Wireless and Pes antes to

5 While there are competent and uncontested Verified Returns of Service in this case, Rule I, 070(b), Florida Rules of Ci vil Procedure provides that service shall not be invalidated even if a Veri fied Ru urn of Service is »ever even filed.

7

demonstrate otherwise by clear and convincing evidence. Stebnicki v. Wolfson,

584 So. 2d 117 (Fla. 3d DCA 1991). Electronic Wireless and Pesantes failed to

meet their burden and establish "by clear and convincing evidence" that service

was improper. Id. Therefore, the trial court's Order should be reversed.

II. Sun'Trust Complied with Each Requirement Raised by Electronic Wireless and Pes antes.

"To permit a defendant to impeach a summons by simply denying service

would create chaos in the judicial system. Therefore, 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). Electronic Wireless

and Pesantes relied solely on the uncorroborated statements of counsel to attack the

subject summonses and Verified Returns of Service and clearly failed to meet the

high burden imposed upon them. Therefore, the trial court's Order should be

reversed without even requiring an analysis of the specific arguments raised.

As an initial matter, in their Motion to Quash, Electronic Wireless and

Pesantesattached only the summons directed at Electronic Wireless. [App. 3 at 8-

9]. Therefore, it would seem clear that only Electronic Wireless was contesting

issues relating to the summons. Nevertheless, at the hearing on the Motion to

Quash, Pesantes apparently believed it sufficient to challenge the summons served

upon Electronic Wireless in order to attempt to invalidate the service upon

icsantes. Furth:r, many of th; arguments raised by Electronic Wireless 31:-1/or

8

Pesantes are refuted by the text on the face of the process server's Verified Return

of Service and neither Electronic Wireless nor Pesantes proffered any contrary

evidence nor sought to do so to contest the Verified Return of Service. Below,

SunTrust will address each of the particular arguments raised by Electronic

Wireless and/or Pesantes to establish why the trial court erred as a matter of law.

i. The Spanish and French Language Information Sheet Were Provided to Pes antes

Rule 1.900(a), Florida Rules of Civil Procedure states "[t]he following forms

of process, notice of lis pendens, and notice of action are sufficient. Variations

from the forms do not void process or notices that are otherwise sufficient."

(emphasis added). Notwithstanding the fact that variation is permitted, SunTrust

used the language contained with Form 1.902, Florida Rules of Civil Procedure in

preparing the summons to be issued to Pesantes.

Ignoring SunTrust's use of the form summons approved by the Florida

Supreme Court and relying upon the summons served upon Electronic Wireless

[App. 3 at 8-9], Pesantes argued in the trial court that SunTrust failed to include

Spanish and Creole language information in the summons served on him. [App. at

5-6]. For the purposes of this brief, SunTrust assumes Pesantes is referring to the

Spanish and French language information suggested by FonTI 1.902. The flaw in

Pesantes argument is the facts that the summons issued by the Clerk of Court

clearly .ncluded the Spanish and Fr. .. nch language i.iformation. [.' np. 7 at 29].

The process server stated under the penalties of perjury in the Verified Return of

Service that "I substitute served this Summons, Complaint & Exhibits on Juliana

Pesantes as spouse of the named defendant." [App. 11 at 66-67]. Therefore, the

burden shifts to Pesantes to refute the evidence stated in the affidavit that the

summons was served.

Pes antes did not put forth any evidence, let alone clear and convincing

evidence, to refute the fact that the summons contained within the trial court's file

was served nor to refute the statement in the process server's Verified RetUlTI of

Service. There is absolutely nothing to contradict the process server's affidavit

that he served the "summons." In fact, the only statement to the contrary is a

statement by counsel for Pesantes which refers to the entirely different sunnnons

served upon Electronic Wireless. By failing to offer, attempt to offer, or even

allege improprieties with the sununons served upon him, Pesantes failed to refute

the evidence that the Spanish and French language information were provided."

ii. Service on Electronic Wireless Was Made on an Employee of Electronic Wireless' Between the Hours of lO:OOam and 12:00pm

The second issue relates to Electronic Wireless, however, since Electronic

Wireless failed to present any actual evidence to refute the summons and Verified

Return of Service, it is not entirely clear what it is challenging. Regardless, the

6 The Spanish and French language information was clearly provided. Therefore, the Court need not address the Ia- .. :t that failure to povide same would not invalidate service of process.

10

summons and Verified Return of Service establish proper service and remain

uncontested with actual (or any) evidence.

"Sections 48.081 and 48.091 provide the exclusive means of effecting

service on an active corporation, and these provisions must be strictly construed."

Richardson v. Albury, 505 So. 2d 521, 522 (Fla. 2d DCA 1987). Section

48.091(2), Florida Statutes requires that:

Every corporation shall keep the registered office open from 10 a.m. to 12 noon each day except Saturdays, Sundays, and legal holidays, and shall keep one or more registered agents on whom process may be served at the office during these hours. The corporation shall keep a sign posted in the office in some conspicuous place designating the name of the corporation and the name of its registered agent on whom process may be served.

Unlike the stricter requirements of Section 48.081(1), Florida Statutes, "Section

48.081(3) allows alternative service on any employee at the corporation's place of

business if the corporation has failed to designate a registered agent pursuant to

section 48.091." ST.R. Industries, Inc. v. Hidalgo C01p., 832 So.2d 262,264 (Fla.

3d DCA 2002).

In this case, Electronic Wireless failed to present any evidence or affidavit to

refute the information contained within the Verified Return of Service or the

summons. The summons reflects service was made upon an employee of

Electronic \Vireless at 11 :40 am on February 23, 2009. [App. 3 at 8-9]. The

Verified Return of Service reflects that service was made upon "Fabian Pesantes,

11

as registered agent, by serving Andres Cardona, as authorized to accept service for

[the] registered agent" at 11:40 am on February 23, 2009. [App. 10 at 64-65].

There is a "high burden of proof' required to overcome the presumption of

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

and Electronic Wireless clearly failed to meet its burden. Electronic Wireless

"cannot impeach a summons by simply denying service, but must present 'clear

and convincing evidence' to corroborate his denial of service." ld. citing Lazo v.

Bill Swad Leasing Co., 548 So.2d 1194, 1195 (Fla. 4th DCA 1989). In Lazo, the

Fourth District stated that:

Clear and convincing evidence requires that the witnesses to a fact be credible; the facts testified to must be distinctly remembered; the details must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts in issue.

Lazo, 548 So. 2d at 1195. Not only was the evidence presented by Electronic

Wireless in this case not clear and convincing, it was non-existent. 7 When the

party seeking to quash service of process fails to present clear and convincing

evidence, the trial COUli errs in granting the motion. ld. Therefore, the trial court

erred in granting the Motion to Quash.

7 At the hearing on the Motion to Quash, Electronic Wireless argued the Verified Return of Service stated service occurred at 9:00am. [App. 4 at 4]. The Verified Retum of Service and the summons clearly indicate service occurred at 11 :40am. [App.3 at 8-9]. The Verified Return of Service states it was received by the process server at 9:00am on February 23, 2009. [App. 10 at 64-65J. However, it then states that service was made at 11 :40am on February 23, 2009. [App. 10 at 64-65]. SunTrust assumes this argument, which was presumably created during the hearing, was .nade in error.

12

The Verified Return of Service clearly states that service was made upon

Electronic Wireless at 11 :40am by serving an individual authorized to accept

service of process on behalf of Electronic Wireless. [App. 10 at 64-65].· Further)

the summons attached to the Motion to Quash indicates service was made on

Electronic Wireless at 11:40am on February 23, 2009 by serving an employee of

Electronic Wireless at the address of the registered agent and corporate offices of

Electronic Wireless. The presumptively valid documents were not refuted at all

and are therefore valid.

ill. The Verified Return of Service was Made By the Person Who Effectuated Service.

The next alleged issue raised by Electronic Wireless and Pesantes in the trial

COUlt was the alleged failure of the person who effectuated service to be the person

who filed a return of service. This argument is presumably based upon Section

4821, Florida Statutes and is entirely without. merit. Each Verified Return of

Service is signed under the penalties of perjury before a Notary Public and states

"I" served the respective defendant. [App. 10 & 11]. The unrefuted Verified

Return of Service is presumed valid unless controverted by the defendant with

clear and convincing evidence. Telf C011). v. Gomez, 671 So. 2d 818 (Fla. 3d DCA

1996). Further, while not relevant here, Rule 1.070(b), Florida Rule of Civil

Procedure provides that the failure to file such an affidavit of service does not

invalidate the service, In this case, there is no evidence to con.rovert the Verified

13

Return of Service and, therefore, the notarized affidavit stating the process server

and the person signing the Verified Return of Service were the same must be

accepted as valid.

iv. The Verified Return of Service and the Summons Included the Process Server's Identification Number.

At the hearing on the Motion to Quash, Electronic Wireless and Pesantes

argued that the summons did not include the identification number of the process server. 8 [App. 4 at 6-7]. They did not, however, provide any basis for which such

a requirement would be imposed. Regardless, both the Verified Return of Service

and the summons include this information and provide "CPS No. 1241" as the

identification number for the process server. [App. 3 & 10 at 8-9 & 64-65]. The

identification number was clearly provided which renders the objection clearly

erroneous.

v. The Summons Included the Address to Serve a Responsive Pleading.

There is no Requirement that the Summons Include the Clerks Address.

In its Motion to Quash, Electronic Wireless and Pesantes argued the

summonses "fail to state where original response it to be made by direct address."

[App. 3 at 6]. However, the summonses each clearly provide the address of

GrayRobinson, P.A. for a responsive pleading to be served. [App. 7 & 8]. At the

8 Again, both Electronic Wireless and Pesantes were referring to the summons served upon Electronic Wireless.

9 Again, boh Appellees rely upon the one sunu.tons.

14

hearing on the Motion to Quash, Electronic Wireless and Pesantes stated "so that you address the right thing. Its not your address that we're complaining about. It's the lack of the clerk's address in the summons. No indication of where the original should be filed." [App. 4 at 14]. However, there is no requirement that the address of the Clerk of Court be included on the summons in the Florida Statute, the Florida Rules of Civil Procedure or the Forms provided in the Florida Rules of

. Civil Procedure. The' summons used by SunTrust was an exact replica of the summons provided by Form 1.091, Florida Rules of Civil Procedure, which does not . require or include the address of the Clerk of Court. Therefore, the "complaint" by Electronic Wireless and Pes antes is irrelevant to whether the issue before the Court.

CONCLUSION

SunTrust properly served Electronic Wireless and Pes antes. The trial court erred as a matter of law when it quashed the service of process upon Electronic Wireless and Pesantes. Through the summons and Verified Returns of Service, Sun'Irust met its initial burden. Moreoever, Sun'Irust's Verified Returns of Service are presumptively valid. Electronic Wireless and Pesantes failed to present the requisite clear and convincing evidence to quash the summons and Verified Returns of Service. Therefore, the trial court's order should be reversed.

15

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.

ORAyROBINSON, P.A. Attorneys for Sun'Trust Bank

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

By:----!r7~'-f--+--+_-+_---I

T. Kuntz

. lorida Bar No. 26345

Roland E. Schwartz

Florida Bar No. 712078

and

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

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

407.244.5690 - fax

16

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on Thursday, July 16,2009, 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.

GRAyROBlNSON, P.A. Attorneys for SunTrust Bank

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

-fax

BY:------.q...~;£-L)_~-----::r~--

J7 T.Kun~

VIonda Bar No. 26345 tRoland 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

1# 2621511 vi

17