IN THE THIRD DISTRICT COURT OF APPEAL STATE OF FLORIDA

Sun Trust Bank

Appellant

DCA CASE No: 3D09-1952

L.T. Case No: 09-14005 CAOI (09)

v.

Electronic Wireless Corp., and Fabian Pesantes

Appellees

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APPELLEE'S ANSWER BRIEF

FERDIE AND LONES, CHARTERED Attorney for Appellee

717 Ponce de Leon Boulevard, Suite 223 Coral Gables, Fl. 33134

Tel: (305) 445-3557; Fax: (305) 441-6401 lawoffice@ferdieandlones.com

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED P ARTIES................................. IV

TABLE OF CITATIONS.................................................................. V

SlJMM"ARY OF ARGUIvIENT......................................................... 1

ARGUIvIENT - APPELLANT'S POINTS........................................ 2

I A Return of Service is Presumed Valid Unless Clear

and Convincing Evidence is Presented to the Contrary.

II Sun Trust Complied with each Requirement Raised by Electronic Wireless and Pesantes.

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

ii. Service on Electronic Wireless was Made on an Employee of Electronic Wireless Between the Hours of 10:00a.m. and 12:0pp.m.

111. The Verified Return of Service was Made by the Person who Effectuated Service.

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

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

vi. Appellant's Acceptance ofBenefits............................................. 6

CONCLU·SION :............................................... 8

CERTIFICATE OF MAILING .

CERTIFICATE OF FONT............................................................................ 9

11

CERTIFICATE OF INTERESTED PARTIES

Ferdie and Lones, Chartered (Appellee's counsel)

GrayRobinson, P.A. (Appellant's counsel)

Hon. Thomas Wilson, Jr. (Circuit Judge)

Electronic Wireless Corp. Fabian Pesantes (Appellee/Defendant)

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TABLE OF CITATIONS

Dance v. Tatum.

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

Mecca Multimedia, Inc. v. Andrew Kurzbard,

954 So.2d 1179 (Fla. 3d DCA 2007)..... 5

Montano v. Montano,

472 So.2d 1377 (Fla. 3d DCA 1985).............................................. 3

Polk County v. Sotka,

702 So.2d 1243 (Fla. 1997), reh.denied, 22 Fla. Law

Weekly, 5529 (Dec. 17, 1997).......................................................... 7

Re- Employment Services, Ltd and aSK Services, Inc. v. National Loan Acquisitions Company, etc.

969 So. 2d 467, 471 (Fla. 5th DCA 2007)....... 4

S. T.R. Industries, Inc. V. Hidalgo Corp.,

832 So.2d 262 (Fla. 3d DCA 2002)...... 4

Statutes

Section 48.081, Florida Statutes...................................................... 5

Other Authorities

Fla. Rules of Civil Procedure 1.070................................................ 5

Fla. Rules of Civil Procedure 1.090..... 6

Fla. Rules of Civil Procedure Form 1.9020..................................... 5

IV

SUMMARY OF ARGUMENT

While a return has a presumption of service, such rule is inapplicable if the return is incomplete or not regular on the face.

Irregularity of process both as to capacity of party and status to serve, failure to state where response is to be filed when asking for copy to Ft. Lauderdale, constitutes a failure of the requirement of strict construction of process and of service.

Irregularity of service justifies motion to quash.

Acceptance of the order's benefits precludes appeal. Saying you can't have your cake and eat it at the same time, applies to interlocutory appeals as well.

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ARGUMENT

Appellant's Points

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

II Sun Trust Complied with each Requirement Raised by Electronic Wireless and Pesantes.

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

ii. Service on Electronic Wireless was Made on an Employee of Electronic Wireless Between the Hours of 10:00a.m. and 12:00p.m.

iii. The Verified Return of Service was Made by the Person who Effec.tuated Service.

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

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

References to Appellant's Appendix will be (A:-)

Thecases cited by Appellant are largely inapplicable and deal with defaults.

Appellee agrees that a return creates a presumption of correctness but only as to

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the matters regularly cited. This presumption, like all evidentiary presumptions

can and should be overcome in proper cases. See Montano v. Montano, 472 So.2d

1377 (Fla. 3d DCA 1985). Visitor to apartment not proper recipient of service.

There are two issues. The first is the process itself. If the summons is

defective or incomplete, it may be quashed even if the defective pleading was

properly served. The second, if the service was defective or insufficient, and the

Appellee failed to provide an amended return or affidavit or otherwise create an

issue, the motion to quash service is proper.

The test is due process under constitutional requirement in order to give the

court in personam jurisdiction.

In the end the Court may examine the meager record presented and see if the

Trial Court was erroneous and whether any purported error was" invited" by

Appellee.

The motion to quash process and service of process was at tab 3,

Appellant's Appendix. (See A: tab 3, page 008). The process provided in part as

to the corporation.

"Electronic Wireless Corp. By Serving Fabian Pesantes'

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The summons did not list where the clerk of the court is to file a response. 1

nor does it direct the service other than "by serving, Fabian Pesantes". Pesantes is

not identified as to what capacity i.e. officer, employee, registered agent or

individual as named in caption.' Despite his argument, the return itself did not cite

which statute the service was attempted under, did not recite whether the alleged

person served was an officer or employee of Electronic Wireless Corp. or of

Fabian Pesantes or some other entity at the same location, or even an employee

and not a visitor. The return is thus irregular and appellant cited cases that clearly

hold that irregular returns carry no presumption nor does irregular process.

The courts require strict construction of, and compliance with the provisions

of statutes governing service of process. Re- Employment Services, Ltd. and GSK

Services, Inc. v, National Loan Acquisitions Company, etc., 969 So.2d 467, 471

(Fla. 5th DCA 2007). The case further notes that if the return is defective on its

face, it cannot be relied upon as evidence that the service of process was valid.

As Judge Ramirez pointed out in S.T.R. Industries, Inc. v. Hidalgo Corp.,

IThe ambiguity is compounded by requiring a copy to be mailed to Ft. Lauderdale, implying the Clerk of the COUli is Broward County.

2 White it is probably not important there are two Fabian Pesantes, father and son. It is a matter of public record (outside the court proceedings) that Fabian Pesantes, the son, was registered agent of Electronic Wireless Corp. But the plaintiff did not invoke the evidence code provision relating to "judicial notice".

4

,

832 So.2d 262 (Fla. 3rd DCA 2002), "Section 48.081 Fla.Stat .... govems service of

process on corporation and must be strictly complied with" in quashing service.

Se also Mecca Multimedia, Inc. v. Andre Kurzbard, 954 So.2d 1179 (Fla. 3d DCA

2007).

Florida Rules of Civil Procedure 1.070 makes certain requirements that

were lacking. As to the individual form 1.9020 requires Spanish and Creole

returns.

It is not what is in the court file, but what is required to be served. The

attorney's statement may not correct it, and the return of service makes no mention

of Spanish or Creole. It is fundamental the original summons is not served but is

for return of service. Even if the original had Spanish and Creole, it does not

follow such were attached to the copy. It is the copy as well as the requirements

of server's duties to place certain information on the copy.

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APPELLEE'S POINT VI APPELLANT'S ACCEPTANCE OF BENEFITS REQUIRES DISMISSAL OR AFFIRMANCE.

The appeal is inappropriate since Appellant accepted the benefits of the

Order and since Fla. Rules of Civil Procedure 1.090 grants 120 days to make

service or action is dismissible. This time may be extended by the court.

However, such ordinarily must be requested before the 120 days run out. Although

120 days had long passed, the court gives plaintiff additional time to serve. The

plaintiff accepted this benefit and promptly attempted service of alias summons.

Whether the new service is effective or not, is not before this court and such

process and service will stand on its own but it is undisputed that plaintiff took

advantage of the court's order and, therefore, the appeal-was both frivolous and a

waste of the court's time.

The general rule precludes an appeal of an order where Appellant has

accepted the benefits under the order. Dance v. Tatum,629 So.2d 127,129 (Fla.

1993).

While there are exceptions, i.e. severable matters of more than one kind, and

(2) where Appellant is entitled at a minimum to the amount awarded, both are

inapplicable here. Here the issues were not separate and severable. See and

compare Polk County v. Sofka, 702 So.2d 1243 (Fla. 1997), reh. denied, 22 Fla.

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Law Weekly, 5529 (Dec. 17, 1997).

F or the above reasons, the court should decline the appeal and dismiss it as Appellant's cost. To do otherwise is to make voidable any subsequent service since the trial court would lack jurisdiction to extend the time.

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CONCLUSION

The appeal should be dismissed or appeal denied and the trial court's order

affirmed and Appellee be awarded their costs and attorney's fees.

FERDIE AND LONES, CHARTERED Attorneys for Appellees

717 Ponce de Leon Boulevard, Suite 223 Coral Gables, Fl. 33134

Tel: (305) 445-3557; Fax: (305) 441-6401

By: ~~<,!}~

AINSLEE R. FERDIE Fla. Bar #024273

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CERTIFICATE OF MAILING

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this Ji.}JJ.ay of September 2009 to: Jeffrey T. Kuntz, Roland E. Schwartz,

GrayRobinson, P.A., 401 E. Las Olas Boulevard, Suite 1850, Ft. Lauderdale, FI.

33301 and John M. Brennan, GrayRobinson, P.A., 301 East Pine Street, Suite

1400, Orlando, Fl. 32801, Attorneys for Appellants.

FERDIE AND LONES, CHARTERED Attorneys for Appellees

717 Ponce de Leon Boulevard, Suite 223 Coral Gables, FI. 33134

Tel: (305) 445-3557; Fax: (305) 441-6401

~~/9-~

By:

AINSLEE R. FERDIE

Fla. Bar #024Z73

CERTIFICATE OF COMPLIANCE

I hereby certify that this briefwas prepared in Times New Roman 14-Point

Font.

n - (J. ~ ~ { (){ I :~

BY: __ ~ \_~ _

AINSLEE R. FERDIE

Fla. Bar #024273

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