You are on page 1of 28

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CASE NO. 4D13-7
LOWER CASE NO.: 12-02716


ANGELIKA CHRISTAL AGUIAR
DREW

v.

CONSERVATOR OF GUMA
AGUIAR
_______________________________/




ANSWER BRIEF OF JAMIE AGUIAR




WILLIAM R. SCHERER
Florida Bar No. 169454
ALBERT L. FREVOLA, JR.
Florida Bar No. 857416
DANIEL S. WEINGER
Florida Bar No. 172900
Attorneys for Appellee
P. O. Box 14723
Fort Lauderdale, FL 33302
Tel: (954) 462-5500
Fax: (954) 463-9244


ii
Table of Contents
Table of Contents ............................................................................................ ii
Table of Authorities ....................................................................................... iii
Points on Appeal ............................................................................................ iv
Preface ............................................................................................................ 1
Statement of Case and Facts ........................................................................... 2
A. General Background .......................................................................... 2
B. Appellant Rejects the Conservators Initial Attempts to Advise her
of the Issues Concerning the Israeli Properties ....................................... 3
C. Appellant is Served with the Summons and Petitioner ...................... 4
D. Statement of the Case ........................................................................ 5
Summary of Argument ................................................................................... 7
Argument ........................................................................................................ 9
I. Standard of Review ............................................................................... 9
II. The Trial Court Correctly Found That Service was Proper as a
Matter of Law ............................................................................................. 9
A. Appellant has Failed to Rebut the Presumption of Valid Service
Contained Within the Return of Service ................................................. 9
B. Even if Evasion is a Prerequisite to the Method of Delivery
Employed, Appellants Affidavit Cannot be the Sole Basis to Support a
Finding that She was not Evading Service of Process .......................... 17
Conclusion .................................................................................................... 20
Certificate of Service .................................................................................... 22
Certificate of Type Size and Style ................................................................ 22

iii
Table of Authorities
Cases
Carone v. Millennium Settlements, Inc.,
84 So. 3d 1141 (Fla. 4th DCA 2012) .......................................................... 9
Emmer v. Brucato,
813 So. 2d 264 (Fla. 5th DCA 2002) .......................................................... 9
Haney v. Olin Corp.,
245 So. 2d 671 (Fla. 4th DCA 1971) ................................................. passim
Hernandez v. State Farm Mut. Auto. Ins. Co.,
32 So. 3d 695 (Fla. 4th DCA 2010) ............................................................ 9
Liberman v. Commercial National Bank,
256 So. 2d 63 (Fla. 4th DCA 1971) .............................................. 12, 15, 16
Olin Corp. v. Haney,
245 So. 2d 669 (Fla. 4th DCA 1971) ................................................. passim
Rokeach v. Glickstein,
718 So. 2d 831 (Fla. 4th DCA 1998) ...................................... 13, 14, 15, 16
United States v. Bryan,
339 U.S. 323 (1950) ............................................................................ 15, 16
VHS Acquisition Subsidiary No. 7, Inc. v. MSS Consulting Services, Inc.,
2012 WL 5907064 (M.D. Fla. 2012) report and recommendation adopted,
2012 WL 5921202 (M.D. Fla. 2012) ............................................ 14, 15, 16
Statutes
Fla. Stat. 48.031 ................................................................................... 10, 13
Fla. Stat. 101.64 .......................................................................................... 19
Rules
Fla. R. App. P. 9.130(a)(3)(C)(i) .................................................................... 1

iv
Points on Appeal
WHETHER SERVICE OF PROCESS WAS
PROPERLY DELIVERED TO APPELLANT AS A
MATTER OF LAW

1
Preface
This Answer Brief is submitted on behalf of JAMIE AGUIAR, Petitioner
below.
ANGELIKA CHRISTAL AGUIAR DREW has appealed, pursuant to Fla.
R. App. P. 9.130(a)(3)(C)(i), the non-final order of the trial court denying her
Motion to Quash Service of Process.
ANGELIKA CHRISTAL AGUIAR DREW is referred to as Appellant or by
her proper name.
JAMIE AGUIAR is referred to as Appellee or by her proper name.
The following symbols will be used:
I.B. ___ references are to the Initial Brief of Appellant.
App. ___ references are to the Appendix to the Initial Brief of Appellant.
App. 2 ___ references are to the Appendix to the Answer Brief of Appellee.
Unless otherwise indicated, all emphasis is supplied by the writer.
2
Statement of Case and Facts
A. General Background
This case arises from the tragic disappearance of Guma Aguiar, husband to
Appellee Jamie Aguiar and father to their four young children. Guma Aguiar was
last seen at his home by his childrens nanny at approximately 7:00 p.m. on June
19, 2012. (App. Tab 3, pg. 1.) Shortly after his disappearance, the probate court
established a conservatorship to protect Mr. Aguiars property interests. (App. Tab
3.) On July 10, 2012, the court appointed two Conservators to look after those
interests: 1) Thomas Panza, Esq. as Conservator over Guma Aguiars assets and 2)
John P. Seiler, Esq. as Conservator Ad Litem over several pending litigation
matters involving Mr. Aguiar. (App. Tabs 3; 4.)
Guma Aguiar owns several properties in Israel which are the subject of a
Petition for Recognition of a Resulting Trust Over Guma Aguiars Israeli
Properties that was filed by Jamie Aguiar on August 2, 2012. (App. Tab 7.)
Conservator Thomas Panza has joined in the resulting trust Petition. In that
Petition, the Conservator and Jamie Aguiar allege that although some of the Israeli
properties are currently titled in the names of other individuals, Guma Aguiar made
the initial payment for the properties, took out the mortgages on the properties,
continues paying the mortgages on the properties, finances the maintenance of the
properties, and took out a life insurance policy for the continued payment of the
3
mortgages on the properties in the event of his death. (App. Tab 7, pp. 2-3.) The
individual in whose names these properties were titled include Guma Aguiars
mother, Ellen Aguiar, and his sisters, Adrianna Aguiar and Appellant Angelika
Aguiar. (Id.)
B. Appellant Rejects the Conservators Initial
Attempts to Advise her of the Issues Concerning
the Israeli Properties
Appellant was informed that the Conservator was asserting Gumas
equitable rights in the Israeli properties titled in her name well before the filing of
the Petition for Resulting Trust. (App. 2, Tab 1, Exhibit C.) In fact, on July 27,
2012, the Conservator sent Appellant a letter via e-mail explaining his position and
informing Appellant that on August 3, 2012, the trial court would be hearing initial
arguments from those who claimed an interest in the Israel properties. (Id.) Rather
than directly inform the court of her intention to assert ownership over the
properties titled in her name, Appellant, after waiting over two weeks, informally
claimed in an e-mail to Mr. Panza that she was on vacation and would only
communicate through an attorney. (App. 2, Tab 1, Exhibit D.) Appellant did
not, however, provide the name of any attorney to receive said communications.
(Id.) Appellant admitted, however, that she was well aware of the various issues
being litigated because she had been receiving informal notice of all of the filings
in the Conservatorship proceeding on a daily basis. (Id.) Effecting formal service
4
of process on Appellant and her sister, Adrianna, has proven exceedingly difficult.
1

(App. Tabs 10-13; 20.)
C. Appellant is Served with the Summons and
Petitioner
On four separate occasions between August 7-9, 2012, a process server
unsuccessfully attempted to serve Appellant at her New York residence. (App.
Tab 20.) Each time, the doorman to Appellants building refused to call up to her
apartment, claiming that she was gone for the summer. (Id.) Finally, over a month
after the Petition was filed, Angelika was served with the Summons and the
Petition. (App. Tabs 10-13.) Angelika does not dispute the facts surrounding
service contained in the return of service, but simply claims that the return of
service was not facially sufficient under Florida law based on the following facts
presented therein: (App. Tab 17.)
Two process servers identified Angelika leaving her Manhattan apartment
building where she lives with her husband. She got into a black Lexus SUV
belonging to her husband. (App. Tabs 12-13.) One of the process servers
approached the Lexus and saw Angelika sitting in the backseat on the drivers side.
(Id.) The drivers side window was open. (Id.) The process server asked if the

1
As of the time of filing this brief, Adrianna Aguiar has continued to evade service of process
despite the expenditure of thousands of dollars worth of resources, including the hiring of
private investigators, to ascertain her whereabouts.
5
woman was Angelika, to which the woman in the backseat replied Yes. (App.
Tab 12.) The driver, later identified as Angelikas husband, closed the window
and sped off, running through two red lights in the middle of Manhattan. (App.
Tabs 12-13.) The process servers were able to run after the Lexus and catch up
when the car got stuck in traffic. (Id.) One of the process servers then placed the
Summons and Petition in the door handle of the car while the other process server
placed a second copy on the windshield in plain view of the cars occupants. (Id.)
Both process servers then announced out loud that Angelika had been personally
served. (Id.)
D. Statement of the Case
On November 2, 2012, Appellant filed a Motion to Quash Service of Process
and/or Motion to Dismiss for Lack of Personal Jurisdiction the Petition for
Recognition of a Resulting Trust Over Guma Aguiars Israeli Property. (App. Tab
16.) Appellant has since conceded personal jurisdiction under Floridas long-arm
statute for purposes of this proceeding. (App. Tab 23.)
In support of her Motion to Quash Service of Process, Appellant filed an
affidavit in which she admits to the version of events described in the return of
service, but claims that it was not her intent to evade service of process. (App. Tab
17.) In the affidavit, Appellant first asserts that she initially responded to the first
process servers inquiry to her identity because she thought he was a maintenance
6
man from her building, but later claims that she was very suspicious of the process
servers motives because of the publicity surrounding the case and because she had
been the subject of surveillance by her uncle stemming from other litigation
involving the Aguiar family. (Id.) Appellant and her husband now claim to have
relocated to the Netherlands. (Id.)
After two hearings on the issue, on December 4, 2012, the trial court entered
an order denying the Motion to Quash Service of Process. (App. Tab 25.) This
appeal follows. (App. Tab 26.)
7
Summary of Argument
Rather than appear before the trial court to argue her case, Appellant
deliberately evaded service of process on the Petition for Resulting Trust, which
concerns an issue that she had admittedly been aware of for over three months by
the time she filed her Motion to Quash. It is undisputed that after numerous failed
attempts, process servers cornered Appellant in a car on the streets of Manhattan
and finally served her with the Petition and Summons. Despite Appellants pattern
of evading service for more than a month and the fact that she fled from the
process servers at the time she was served, she now asks this Court to ignore the
thousands of dollars expended on serving her by rewarding her evasive tactics and
quashing service of process based on an affidavit that defies credibility and is
legally insufficient to rebut the presumption of proper service in any event.
Specifically, Appellant admits that she was both present and aware that, after
unsuccessfully fleeing from the process servers, the Petition and Summons were
placed on the door handle and windshield of the car in which she was traveling, at
which time the process servers announced that she was being served. These
undisputed facts, set forth in the affidavit of service, create a presumption of valid
service that is only bolstered by the admissions in Appellants own affidavit.
Because Appellee obtained a valid return of service here, Appellant bore the
8
burden of presenting clear and convincing evidence that service was improper.
She unquestionably failed to meet this burden.
Appellant admits evading service of process, but simply claims that the
evasion was unknowing. According to Appellant, therefore, this case does not fall
within the so-called evasion exception set forth in multiple cases from this Court
and relied upon by the trial court. Simply put, the binding cases relied upon by the
trial court do not create a litmus test for certain types of service based upon a
finding of intent to evade, but rather focus on the more pertinent issue of whether
delivery of service was effectuated in a manner consistent with the express terms
of Florida Statutes section 48.031, thereby satisfying due process concerns related
to the recipients rights to receive notice of the compliant. Moreover, the
undisputed facts would fall within Appellants evasion exception even if that
were the rule, which it is not.
Finally, should the Court find that Appellants affidavit sufficiently rebuts
the factual basis supporting service of process set forth in the return of service
based upon her claims that she did not intend to evade service of process, the Court
should remand the case to allow for additional discovery based upon the omissions
and factual inconsistencies within Appellants affidavit that are so significant as to
cast serious doubt on any claims that Appellant has been doing anything but
intentionally evading service in this case.
9
Argument
I. STANDARD OF REVIEW
The standard of review from a non-final order ruling on a motion to quash
service of process is de novo. See Carone v. Millennium Settlements, Inc., 84 So.
3d 1141, 1143 (Fla. 4th DCA 2012) (citing Hernandez v. State Farm Mut. Auto.
Ins. Co., 32 So. 3d 695, 698 (Fla. 4th DCA 2010)).
II. THE TRIAL COURT CORRECTLY FOUND
THAT SERVICE WAS PROPER AS A MATTER OF
LAW
A. Appellant has Failed to Rebut the Presumption
of Valid Service Contained Within the Return of
Service
While the burden of proving the validity of service of process is on the
[plaintiff], the parties seeking to invoke the jurisdiction of the court, a return of
service, which is regular on its face, is presumed valid unless clear and convincing
evidence is presented to the contrary. Emmer v. Brucato, 813 So. 2d 264, 265-66
(Fla. 5th DCA 2002). When determining whether there is proper service on a
person located in another state, the court begins its analysis with Florida Statutes
section 48.194(1), which provides that service of process of persons outside of
this state must occur in the same manner as service within the state by any officer
authorized to serve process in the state where the person is served.
10
Under Florida law, personal service of process is accomplished in one of two
ways: either by by delivering a copy of it to the person to be served, or by
leaving them at the persons usual place of abode with any person residing therein
who is 15 years of age or older and informing the person of their contents. Fla.
Stat. 48.031(1)(a). Critically, delivery to a person does not require placing a
copy of the summons and complaint in the persons hand or even physically on the
person. See Haney v. Olin Corp., 245 So. 2d 671, 673 (Fla. 4th DCA 1971).
In Olin Corp. v. Haney, 245 So. 2d 669 (Fla. 4th DCA 1971), this Court
reversed the trial courts order quashing service of process on a woman who
evaded service in much the same way as Appellant. Id. at 670. There, the sheriff
went to Haneys home to serve a summons and compliant. Id. When Haney saw
the sheriff and realized she was about to be served she ran into her house, yelled
No, No! and shut the door. Id. The sheriff read the summons through the door,
then left the summons and complaint on the doorstep. Id. The court held that the
defendant was personally served:
It is our opinion that the deputy sheriff made a sufficient
delivery of the papers to Mrs. Haney to effect valid
service of process by personal delivery. Normally, where
service is to be made by personal delivery the papers
must be delivered into the hand or onto the person of the
one to be served. Where, however, the person to be
served flees from the presence of the process server in a
deliberate attempt to avoid service of process, the
delivery requirement ofsection 48.031may be
satisfied if the process server leaves the papers at a place
11
from which such person can easily retrieve them and
takes reasonable steps to call such delivery to the
attention of the person to be served.
Olin, 245 So.2d at 670. In the related case of Haney v. Olin Corp., 245 So. 2d 671,
673 (Fla. 4th DCA 1971), the Court went on to agree that although there was a
time where hand delivery was necessary to effectuate personal service, delivery
does not require that the copy of summons and complaint be placed in the
defendant's hand, nor, for that matter, that the defendant be even physically
touched with the suit papers. Id. at 673 (emphasis added). More important than
whether the person to be served is physically touched by the suit papers is whether
the court can have confidence that the person to be served received notice of the
suit consistent with due process principles.
The real purpose of the service of summons is to give
proper notice to the defendant in the case that he is
answerable to the claim of plaintiff. The major purpose
of the constitutional provision which guarantees due
process is to make certain that when a person is sued he
has notice of the suit and an opportunity to defend. It is
our view that this purpose is fulfilled and the statutory
requirement of delivery met by the facts of this case. An
officer's reasonable attempt to effect personal service of
process upon a person in his own home, when the person
reasonably should know the officer's identity and
purpose, cannot be frustrated by the simple expedient of
the person closing the front door in the officer's face and
wilfully refusing to accept service of process, very much
as a child playing a game of tag might gain instantaneous
immunity by calling King's X.
Id (citations omitted).
12
Both Olin and Haney are consistent with this Courts earlier opinion in
Liberman v. Commercial National Bank, 256 So. 2d 63 (Fla. 4th DCA 1971),
where the defendant, seeing the process server approach him, ran into his house
and closed the door. Id. The deputy left copies of the papers in the mailbox at the
home, drove around the block, and witnessed the defendant going to the mailbox to
retrieve the papers. Id. Relying on Olin, the Court affirmed the trial courts order
denying the defendants motion to quash, holding that this was good service under
the circumstances. Id.
Appellant claims that Haney, Olin, and Liberman are distinguishable
because they concern service at the defendants residences. Appellant also takes
issue with the Liberman Courts comment that the circumstances described therein
approach the outer limits of service of process. Appellants analysis misses the
forest for the trees. The Liberman Court was not referring to the outer limits of
someone trying to evade service of process, nor that the rationale would only be
applicable to service at a residence. Rather, when read in context it is clear that the
outer limits described by the Liberman court refers to the fact of the process server
leaving the summons and taking steps to ensure (in that case by hiding nearby) that
the defendant retrieved the summons, thereby not running afoul of the policy of
guaranteeing delivery so that a defendant is actually put on notice of the case
against them. Had the process server left sooner, the case would have fallen
13
beyond the outer limits of service of process because he could not have confirmed
either delivery to the person or to someone over fifteen years of age residing at that
persons usual place of abode. In the case sub judice, Appellant acknowledges that
the process servers placed the summons in her plain sight while simultaneously
announcing that she had been served.
Appellants rationale also ignores that the primary distinction between
service at ones residence and service elsewhere is not the method of delivery, but
merely on whom service may be delivered. At a defendants place of abode,
delivery can either be made on the defendant or on any person residing therein
who is 15 years of age or older and informing the person of their contents. Fla.
Stat. 48.031(1)(a). Thus, in Rokeach v. Glickstein, 718 So. 2d 831 (Fla. 4th DCA
1998), a case strikingly similar to the instant case, service was proper when made
outside the residence of the defendant by placing the summons and complaint
against the window of a car being driven by someone other than the defendant. Id.
at 832. After the process server held the papers up to the car for approximately
four or five seconds, the driver, who also resided at the defendants place of abode,
pulled away. Under these facts, this Court found that service was proper even
though the process server never placed the service papers in anyones hands.
Appellants suggestion that holding the service papers up to the window only
constituted delivery in that case because it was done outside the defendants home
14
defies logic. The only reason the location of delivering service of process in that
particular manner is relevant is because the service was being made on someone
other than defendant, who is only permitted to be served at the defendants place of
abode. Unlike Rokeach, Appellant was in the automobile when the process servers
identified themselves and placed the service papers in her plain view. Because a
defendant/respondent need not be at their place of residence when being served, it
makes no difference that she happened to be a block or two away from her home
when service of process was effectuated. In fact, the instant case provides greater
confidence that service was consistent with due process principles because
Appellant herself was present when the service papers were left on the windshield
and door handle to her husbands car as opposed to a co-resident in a car that
happened to be outside of her house.
Similarly, in VHS Acquisition Subsidiary No. 7, Inc. v. MSS Consulting
Services, Inc., 2012 WL 5907064 (M.D. Fla. 2012) report and recommendation
adopted, 2012 WL 5921202 (M.D. Fla. 2012), the process servers affidavit
showed that when first attempting service at the defendants home, a woman who
opened the door informed him that she was a family member who was staying, but
not living, there, and the defendant was out of town for a couple of weeks. Id. at
*2. During a second attempt some two weeks later, a man opened the door and
told the process server that the defendant was still out of town. Id. Three weeks
15
later, the process server served a man seated in a car registered to the defendant in
the driveway of the residence. The process server told the man that he was serving
him with legal papers, and the man refused to take them and began shouting
obscenities. A woman in the front passenger seat got out of the car and threw the
legal documents on the ground. The process server picked up the legal documents
and inserted them into the handle of the front door of the residence as the man
drove away. The defendant claimed that the man who was served was not him, but
someone else who had been living at the residence. Id.
Relying on Rokeach, the court found that service was proper whether the
man in the car was another person living at the defendants residence or the
defendant himself, in no small part because the defendant had not and could not
credibly claim that he lacked notice of the suit. Id. at *3. What all of these cases
have in common is the relatively straight forward principle that, irrespective of
where it occurs, delivery does not require placing the service papers directly in a
persons hands so long as the recipient qualifies as someone who is permitted to be
served under 48.031.
Haney, Olin, Liberman, Rokeach, and VHS are not aberrations, but are
consistent with well-settled law that delivery of service should not be a game of
hide and seek. See United States v. Bryan, 339 U.S. 323 (1950). In Bryan, the
Court decried willful evasion of service, holding that every person has certain
16
minimum duties and obligations which are necessary concessions in the public
interest in the order operation of legislative and judicial machinery. Id.
Accepting service is one of those duties. In this regard, the Court recognized that
to permit individuals to deliberately avoid service would emasculate the power of
the courts and is contrary to the public interest:
A subpoena has never been treated as an invitation to a
game of here and hounds, in which the witness must
testify only if cornered at the end of the chase. If that
were the case, then, indeed, the great power of
testimonial compulsion, so necessary to the effective
functioning of courts and legislatures, would be a nullity.
Id. at 331.
Using Haney, Olin, Liberman, Rokeach, VHS, and Bryan as guideposts,
service on Appellant was clearly proper. The process servers were unsuccessful in
their efforts to serve Appellant for over one month before finally spotting her and
her husband leaving their apartment building. As soon as Appellant and her
husband realized she was going to be served, they drove off. The papers were left
on the windshield and the door handle of their SUV clearer, more obvious, and
far more secure than leaving the papers on a doorstep (Olin/Haney), in a mailbox
(Liberman), or with someone other than Appellant who just so happens to reside
with her (Rokeach/VHS). In fact, Appellant now admits that she could see the
paper through the windshield and was aware that she was being served.
17
Accordingly, as a matter of law the trial court correctly denied Appellants motion
to quash service of process.
B. Even if Evasion is a Prerequisite to the Method
of Delivery Employed, Appellants Affidavit
Cannot be the Sole Basis to Support a Finding that
She was not Evading Service of Process
Even if evasion is a prerequisite to the method of delivery in this case, the
return of non-service and return of service is valid on its face where Appellant fled
from the process servers who had already been unsuccessful in their efforts to
serve Appellant for a full month. Many of Appellants arguments depend upon
accepting as gospel her claim that she was on vacation since the time service was
first attempted on August 7, 2012. As a threshold matter, the undersigned is
unaware of any vacation exception that permits evasive behavior by claiming to
have simply taken an extended trip, thereby making personal service impossible.
More importantly, neither the process servers nor the court is required to believe
that Appellant was on vacation for the entire month of August simply because the
doorman was instructed to say as much. That Appellant claims that she was on
vacation in her affidavit is no more availing.
Appellant makes the sweeping claim that she was on vacation for the
summer, but offers no additional details such as where she was staying or the exact
dates she was out of town, including when she first returned. When combining this
18
lack of specifics with the many inconsistencies within, and calculated omissions
from, Appellants affidavit, it is impossible to do anything but question the
veracity of Appellants entire statement. One example of an inconsistency by
Appellant is her explanation for why she fled the process servers. Appellant first
claims that although she did not recognize the process server, she thought he was a
maintenance man. Later, Appellant claims that she was always on guard when it
came to strangers as a result of the publicity surrounding her brothers
disappearance and the prior surveillance she suffered at the hands of her uncle. If
Appellant was so concerned about publicity or the previous surveillance tactics of
her uncle, however, why was her initial thought that the process server, whom she
did not recognize, was a harmless maintenance man?
The most damaging evidence to Appellants credibility, however, comes
from her material omissions related to the issue of personal jurisdiction, which she
abandoned shortly after her shocking lack of candor came to light. Pursuant to her
affidavit, Appellant ceased being a Florida resident at the end of 2011. (App. Tab
17.) In response to this claim, Appellee presented in the trial court unrebutted
evidence that since the end of 2011, Appellant accepted a new Florida voters
identification card, voted absentee in Floridas January 31, 2012 presidential
preference primary election, and voted by absentee ballot in Floridas November 6,
2012 election, which ironically was held the day after she filed her motion to
19
dismiss for lack of personal jurisdiction. (App. 2, Tab 1, Exhibits B, E.) In casting
her absentee ballot for the January 31, 2012 and November 6, 2012 elections,
Appellant signed an oath swearing that she is a qualified and registered voter of
Broward County, Florida. 101.64, Fla. Stat. In so doing, Appellant swore that
she is a resident of the State of Florida, which is wholly contrary to the claim in her
affidavit. Furthermore, Appellant failed to note that she maintains a Florida
mailing address, a Florida drivers license, and co-owns a car with her husband that
is registered in Florida. (App. Tab 17.) It was only after these omissions came to
light that, rather than respond to discovery on the matter, Appellant conceded
personal jurisdiction in this case under Floridas long-arm statute. The material
omissions themselves, however, still remain part of the record in this case and
obviate any argument that the remainder of Appellants affidavit can be taken at
face value.
Finally, Appellants behavior as a witness in this case belies her claim that
she was innocently on vacation without any knowledge of the efforts being made
to sever her in this case. Specifically, both Appellant and her husband ignored a
subpoena for their depositions in this case, at which time service could have been
perfected on the off chance that it did not meet the requirements of Florida law.
On September 7, 2012, both Appellant and her husband were properly served with
subpoenas duces tecum for their depositions to take place on October 1, 2012.
20
(App. 2., Tabs 2-3.) These depositions are critical to demonstrating Guma
Aguiars intent with respect to the Israeli properties at issue. Both Appellant and
her husband failed to appear for their depositions, resulting in a New York court
issuing an Order to Show Cause. (App. 2, Tab 4.)
2
This failure to appear,
combined with the inconsistencies and omissions from Appellants affidavit as
outlined above, at the very least create issues of fact as to whether Appellant was
intentionally evading service of process when she fled from the process servers.
Accordingly, even if Appellant is correct that the method of delivery employed in
this case is only valid for an evading recipient, the Court should not quash service
of process, but remand to the trial court so that Appellee may take additional
discovery on this matter.
Conclusion
Based on the foregoing, this Court should affirm the trial courts order
denying Appellants Motion to Quash or, alternatively, remand this case for
additional discovery on the issue of whether Appellant was knowingly evading
service of process at the time she was served.



2
Because the results from that hearing were never presented to the trial court, it would be
inappropriate to disclose them here in the absence of a formal request by the Court.
21
Respectfully submitted,

By:
DANIEL S. WEINGER, ESQ.
22
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished via electronic service to all counsel on the attached Mailing List on this
24th day of January, 2013.
Certificate of Type Size and Style
The undersigned counsel certifies that the type and style used in this brief is
14 point Times New Roman.
_________________________

CONRAD & SCHERER, LLP
Attorneys for Appellee
P. O. Box 14723
Fort Lauderdale, FL 33302
Phone: (954) 462-5500

By:__________________________
WILLIAM R. SCHERER
Florida Bar No. 169454
wrs@conradscherer.com
ALBERT L. FREVOLA, JR.
Florida Bar No. 857416
afrevola@conradscherer.com
DANIEL S. WEINGER
Florida Bar No. 172900
dweinger@conradscherer.com

Email Service:
wrspleadings@conradscherer.com
eservice@conradscherer.com
alfpleadings@conradscherer.com
dswpleadings@conradscherer.com
23
SERVICE LIST

Harley S. Tropin, Esq.
Tucker Ronzetti, Esq.
Kozyak, Tropin & Throckmorton, P.A.
2525 Ponce de Leon, 9th Floor
Miami, FL 33134
Tel: 305-372-1800
Fax: 305-372-3508
hst@kttlaw.com
tr@kttlaw.com
sf@kttlaw.com
mia@kttlaw.com
flt@kttlaw.com

Jannai Aguiar
3009 North Palm Aire Drive
Pompano Beach, FL 33069
jannaiaguiar@aol.com

Adriana Aguiar
400 East 67
th
Street, #9F
New York, N.Y. 10065
adriana0821@aol.com



Glenn E. Goldstein, Esq.
James R. George, Esq.
Greenberg Traurig
401 East Las Olas Boulevard, Suite 2000
Fort Lauderdale, FL 33301
Tel: (954)768-8205
Fax: (954)765-1477
goldsteing@gtlaw.com
georgej@gtlaw.com
geistc@gtlaw.com
FLService@gtlaw.com



Coffey Burlington, P.L.
Counsel for Conservator of Guma
Aguiar
Office in the Grove, Penthouse
2699 South Bayshore Drive
Miami, FL 33l33
Tel: 305-858-2900
Fax: 305-858-5261
dzack@coffeyburlington.com
lwisman@coffeyburlington.com
service@coffeyburlington.com

Justin Corey Drew
400 East 67
th
Street, #9F
New York, N.Y. 10065
jcoreydrew@aol.com

Kenneth R. Mikos, Esq.
2780 East Oakland Park Boulevard
Fort Lauderdale, FL 33306
Tel: 954-566-7200
Fax: 954-566-1568
Kmikos@bellsouth.net

Sigrid S. McCawley, Esq.
Boies, Schiller & Flexner, LLP
401 East Las Olas Boulevard, Suite 1200
Fort Lauderdale, FL 33301
Tel: 954-356-0011 ext. 4223
Fax: 954-356-0022
Smccawley@BSFLLP.com







24
Paul B. McCawley, Esq.
401 East Las Olas Boulevard
Suite 2000
Fort Lauderdale, FL 33301
McCawleyP@GTLaw.com
shellengers@gtlaw.com
FLService@gtlaw.com


Thomas F. Panza, Esq.
Jodi N. Cohen, Esq.
Panza, Maurer & Maynard, P.A.
Bank of America Building, Third Floor
3600 North Federal Highway
Fort Lauderdale, FL 33308
Tel: 954-390-0100
Fax: 954-390-7991
tpanza@panzamaurer.com
JNCohen@panzamaurer.com

George S. LeMieux, Esq.
Robert B. Judd, Esq.
Heather C. Costanzo, Esq.
Gunster, Yoakley & Stewart, P.A.
Las Olas Centre
450 East Las Olas Boulevard, Suite 1400
Fort Lauderdale, FL 33301
Tel: 954-462-2000
Fax: 954-523-1722
glemieux@gunster.com
rjudd@gunster.com
hcostanzo@gunster.com


Brian Joseph Stack, Esq.
Denise B. Crockett, Esq.
Gregory N. Anderson, Esq.
Stack Fernandez Anderson & Harris, P.A.
1200 Brickell Ave, Suite-950
Miami, FL 33131
Tel: 305-371-0001 ext12
Fax: 305-371-0002
bstack@stackfernandez.com
mwolf@ stackfernandez.com
dcrockett@ stackfernandez.com
acabrera@ stackfernandez.com


John P. Seiler, Esq.
Seiler, Sautter, Zaden, Rimes & Weihe
2850 North Andrews Avenue
Wilton Manors, FL 33111
Tel: 954-568-7000
Fax: 954-568-2152
jseiler@sszrlaw.com