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IN THE THIRD DISTRICT COURT OF APPEAL STATE OF FLORIDA

SunTrust Bank,

Appellant,

Appellees.

DCA Case No.: 3D09-1952

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

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Electronic Wireless Corp. and Fabian Pesantes,

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SUNTRUST BANK'S RESPONSE IN ~~

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OPPOSITION TO MOTION TO DISMISS APPEAL'

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Appellant, SunTrust Bank ("SunTrustn), by and through its undersigned

counsel and pursuant to Rules 9.130 and 9.300, Florida Rules of Appellate

Procedure, and other applicable law, files this Response in Opposition to

Appellee's Motion to Dismiss Appeal. For the reasons stated herein, the

Appellee's Motion to Dismiss Appeal should be denied and the Appellee's should

be ordered to file their Answer Brief on an expedited basis:

Procedural Background

On July IS, 2009, Sun'Irust's Notice of Appeal was docketed by the Clerk of

Court and on 'July 16, 2009, SunTrust's Initial Brief was docketed. On July 29,

2009, the Appellee's filed their Motion for Extension of Time to file their Answer

Brief which was granted by the Clerk of Court one day later. The extension

1

provided Appellees with an additional thirty (30) days to file their answer brief or

until September 5, 2009.

The Motion for Extension stated that an attempt to contact counsel for

Sun'Irust to confer about the extension had been made, however, no response had

been received. The Motion for Extension did not indicate that counsel for the

Appellees, in violation of the spirit of Rule 9.300, Florida Rules of Appellate

Procedure, made only one (1) attempt to contact counsel for Sun'Trust and the

attempt was made the same afternoon the Motion for Extension was filed. The

Fifth District has explained the requirements imposed by Rule 9.300 as follows:

An allegation that a lawyer has complied with rule 9.300 by relying on a staff person's statement that he or she spoke to another lawyer's secretary is simply not adequate to comply with the personal obligation imposed on lawyers by the rules. Rule 9.300 requires some actual contact with opposing counsel. That was missing here. Apparently, neither the lawyer nor the paralegal spoke with opposing counsel. We realize that, in a rush, it may be difficult to contact opposing counsel, or opposing counsel may not return calls. In such case it would be far better to allege that an attempt to contact was made, but failed after due diligence. Further, to avoid this kind of triple-hearsay buck passing between staff persons, illustrated by this case, some sort of acknowledgement of the contact should be made. The modern era of technology provides creative lawyers with a feast of such opportunities, including e-mail, voice mail, fax machines, and other devices. These can be employed to confirm oral communications and avoid misunderstandings, if written confirmation cannot be timely obtained.

2

Merritt v. Promo Graphics, Inc., 679 So. 2d 1277 (Fla. 5th DCA 1996). Clearly,

the one phone call the same afternoon a motion for extension is filed fails to

comply with Rule 9.300.

On August 1 7, 2009, the Appellees filed their Motion to Dismiss Appeal.

The one page motion lacks citation to any applicable authority and is a further

attempt to delay the inevitable judgment that will be entered against them.

The Motion to Dismiss Should Be Denied

Subsequent to its filing of the Notice of Appeal and Initial Brief in this

Court, SunTrust again attempted service on the defendants below. However, as of

the date of this filing, the defendants below have not acknowledged service to be

effective nor have they responded to the Complaint. In fact, the Appellee's below

filed a "Motion to Enlarge Time" in the trial COUlt.1 Within the Motion to Enlarge

Time, the defendants below request until September 25, 2009 to respond to the

"last purported service."

The Motion to Dismiss Appeal argues that the service below constitutes "at

least invited error and an inconsistent position." See Motion to Dismiss at en 4.

The position is asserted without a single citation to any authority. The position

taken by the Appellees is simply incorrect. The trial court entered an order

quashing service of process, which is an appealable non-final order pursuant to

1 The Motion to Enlarge Time filed in the trial court is incorporated by reference and attached hereto at Exhibit "A."

3

Rule 9.l30(a)(3)(C)(i), Florida Rules of Appellate Procedure. 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) (emphasis supplied).

As this Court has held, f1[i]t is, of course, true that an order quashing service

of process is an appealable non-final order. tI RD & G Leasing, Inc. v. Stebnicki,

626 So. 2d 1002, 1003 (Fla. 3d DCA 1993). See also Re-Employment Services,

Ltd. v. National Loan Acquisitions Co., 969 So. 2d 467, 470 (Fla. 5th 2007);

Chapman v. Sheffield, 750 So. 2d 140, 142 (Fla. 1st DCA 2000).

Further, the Appellee's have not responded to the "last purported service"

but have requested the trial court provide them an additional month to respond to

the last "purported service." Therefore, the issue is anything but resolved in the

trial court and the Appellee's are using both the trial court and this COUli to further

delay the inevitable judgment.' Otherwise, the Appellee's would be able to

indefinitely delay the proceedings below by continually delaying the trial court

proceeding.

2 It is unclear whether the trial GaUlt could ever do anything to divest this COUli of jurisdiction over a timely filed and authorized appeal of a non-final order. See Soles v. Soles, 536 So. 2d 367 (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).

4

Conclusion

The order quashing service of process is an appealeable non-final order.

Therefore, the Motion to Dismiss Appeal should be denied and the Appellee's

should be ordered to file their Answer B11ef on an expedited basis.

Respectfully submitted on Monday, August 24,2009.

GRAYROBINSON, P.A. Attorneys for SunTrust Bank

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

954.761.8112 - fax

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

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CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on Monday, August 24, 2009, a true and

correct copy of the foregoing was furnished via U.S Mail to Ainslee R. Ferdie,

Esquire, Attorneys for Appellees, 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 954.76l.8111

954.76l.8112 - fax

By: IJI~

/ JI:/frey T. Kuntz Flonda 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

112694331 vi

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IN THE CIRCUIT COURT OF THE 1 fIll JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION CASE NO: 09-14005 CA 01

Division 9

SUNTRUST BANK, A GEORGIA CORPORATION

Plaintiff

VS.

ELECTRONiC WIRELESS CORP., a Florida corporation; and FABIAN PESANTES, individually

Defendants

/

MOTION TO ENLARGE TIME

COMES NOW, the defendant, and move to enlarge time and say:

1. Plaintiff has pursuant to July 22, 2009 order, attempted re-servlce on defendants.

2. Defendants' attorney has received same on August 14, 2009, but will be at a

Veteran's convention from August 17-23, 2009, and is otherwise scheduled August 24, 25, has actions on briefs in District Court of Appeals 2nd and 3rd, and

is scheduled to be in Tampa, September 10-1"1; 2009 including Florida Bar.

activities.

WHEREFORE, defendants move to enlarge time to respond to last purported

service until September 25, 2009.

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

1

Exhibit "A"

[JJ/

thisR day of August, 2009 to: John M. Brennan, Esq., Jeffrey T. Kuntz, Gray

Robinson, P.A., 401 E. Las Olas, Suite 1850, Fort Lauderdale, Florida 33301; attorneys

for plaintiff, SunTrust Bank.

FERDIE AND LONES, CHARTERED Attorney for Electronic Wireless Corp.,& Fabian Pesantes

717 Ponce de Leon Blvd., Suite #223 Coral Gables, Florida 33134

~:I: 30ZU:axeu

AINSLEE R. FERDIE F.B. NO: 024273

2

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