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

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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 Conservator’s 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, Appellant’s 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  

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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

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Points on Appeal

WHETHER SERVICE OF PROCESS WAS PROPERLY DELIVERED TO APPELLANT AS A MATTER OF LAW

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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.

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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 children’s 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. Aguiar’s 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 Aguiar’s 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 Aguiar’s 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

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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 Aguiar’s

mother, Ellen Aguiar, and his sisters, Adrianna Aguiar and Appellant Angelika

Aguiar. (Id.)

B. Appellant Rejects the Conservator’s Initial Attempts to Advise her of the Issues Concerning the Israeli Properties

Appellant was informed that the Conservator was asserting Guma’s

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

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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 Appellant’s 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 driver’s side.

(Id.) The driver’s 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.

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woman was Angelika, to which the woman in the backseat replied “Yes.” (App.

Tab 12.) The driver, later identified as Angelika’s 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 car’s 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 Aguiar’s Israeli Property. (App. Tab

16.) Appellant has since conceded personal jurisdiction under Florida’s 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

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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.)

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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 Appellant’s 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 Appellant’s own affidavit.

Because Appellee obtained a valid return of service here, Appellant bore the

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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 recipient’s rights to receive notice of the compliant. Moreover, the

undisputed facts would fall within Appellant’s “evasion exception” even if that

were the rule, which it is not.

Finally, should the Court find that Appellant’s 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 Appellant’s 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.

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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.”

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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 person’s “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 person’s 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 court’s 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 Haney’s 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 of…section 48.031…may be satisfied if the process server leaves the papers at a place

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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).

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Both Olin and Haney are consistent with this Court’s 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 court’s order

denying the defendant’s 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 Court’s comment that the circumstances described therein

“approach the outer limits” of service of process. Appellant’s 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

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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

person’s 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.

Appellant’s rationale also ignores that the primary distinction between

service at one’s residence and service elsewhere is not the method of delivery, but

merely on whom service may be delivered. At a defendant’s 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 defendant’s 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 anyone’s hands.

Appellant’s suggestion that holding the service papers up to the window only

constituted delivery in that case because it was done outside the defendant’s home

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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 defendant’s 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 husband’s 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 server’s affidavit

showed that when first attempting service at the defendant’s 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

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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 defendant’s 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

person’s 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

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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.

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Accordingly, as a matter of law the trial court correctly denied Appellant’s motion

to quash service of process.

B. Even if Evasion is a Prerequisite to the Method of Delivery Employed, Appellant’s 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 Appellant’s 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

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lack of specifics with the many inconsistencies within, and calculated omissions

from, Appellant’s affidavit, it is impossible to do anything but question the

veracity of Appellant’s 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 brother’s

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 Appellant’s 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 voter’s

identification card, voted absentee in Florida’s January 31, 2012 presidential

preference primary election, and voted by absentee ballot in Florida’s November 6,

2012 election, which ironically was held the day after she filed her motion to

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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 driver’s 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 Florida’s 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 Appellant’s affidavit can be taken at

face value.

Finally, Appellant’s 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.

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(App. 2., Tabs 2-3.) These depositions are critical to demonstrating Guma

Aguiar’s 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 Appellant’s 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 court’s order

denying Appellant’s 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.

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Respectfully submitted, By: DANIEL S. WEINGER, ESQ.

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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

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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 67th 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 67th 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

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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