DISTRICT COURT OF APPEAL THIRD DISTRICT OF FLORIDA

CASE NO.: 17-1604

TRIAL COURT CASE NO.: 16-025189 CA

LUIZ QUEIROZ, KARINE QUEIROZ, and SOHO BAY RESTAURANT, LLC

Appellants,

vs.

BENTLEY BAY RETAIL LLC

Appellee.

Appellants’ Reply Brief Appeal of Orders Denying Motion to Quash Service and Entering Sanctions

FROM THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN

AND FOR MIAMI-DADE COUNTY, FLORIDA

BERNHARD LAW FIRM PLLC Counsel for Appellants 333 SE 2nd Avenue, Suite 2000 Miami, Florida 33131 Telephone: 786-871-3349 Fax: 786-871-3301 Email: abernhard@bernhardlawfirm.com /s/ Andrew J. Bernhard Andrew J. Bernhard, Esq. Fla. Bar No. 84031

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TABLE OF CONTENTS TABLE OF CITATIONS ......................................................................................... ii ARGUMENTS IN RESPONSE AND REBUTTAL ................................................ 1 I. Appellee fails to address that the non-resident witness immunity

rule prevented vesting of personal jurisdiction over Brazilian officers Luiz Queiroz and Karine Queiroz ................................................. 1

a. Appellee fails to make accurate and meaningful distinctions

from Murphy & Jordan, confirming immunity applies here .......... 1

b. Appellee fails to recognize that immunity applies even in the same lawsuit with the same persons, under Murphy & Jordan, Higgins, Cordoba, Mallin, and Keveloh .............................. 3

c. Appellee concedes that the immunity rule’s policy and all

other case law support immunity here ............................................. 5 d. Appellee fails to cite any precedent for its erroneous

positions on immunity, while misstating the rule and record ........ 7 e. Appellee fails to cite any precedent for its erroneous

position on corporate appearances, while misstating the rule and record ......................................................................................... 11

f. Appellee’s digression on long-arm jurisdiction is irrelevant

to the non-resident witness immunity rule ..................................... 13 CONCLUSION ....................................................................................................... 15

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TABLE OF CITATIONS

Adams v. Aetna Cas. & Sur. Co., 574 So. 2d 1142, 1153 (Fla. 1st DCA 1991) ............................................................ 2 Adelman Steel Corp. v. Winter, 610 So. 2d 494, 503 (Fla. 1st DCA 1992) ................................................................ 2 Alvarado v. Cisneros, 919 So. 2d 585, 587 (Fla. 3d DCA 2006) ............................................................. 8, 9 Am. Baseball Cap, Inc. v. Duzinski, 308 So. 2d 639, 641 (Fla. 1st DCA 1975) ................................................................ 4 Am. Exp. Ins. Servs. Europe Ltd. v. Duvall, 972 So. 2d 1035, 1041 (Fla. 3d DCA 2008) ............................................................. 8 Buckingham Estates Homeowners Ass’n, Inc. v. Metcalf, 207 So. 3d 966, 967 (Fla. 5th DCA 2016) ................................................................ 8 Carriage Hills Condo. Inc. v. JBH Roofing and Constructors, Inc., 109 So. 3d 329, 334–38 (Fla. 4th DCA 2013) ........................................................ 11 Chamberlain v. State, 881 So. 2d 1087, 1103 (Fla. 2004) ............................................................................ 5 Cordoba v. Cordoba, 393 So. 2d 589, 590–92 (Fla. 4th DCA 1981) ................................................. passim Dep’t of Rev. v. Martin, 65 So. 3d 603, 604 (Fla. 5th DCA 2011) .................................................................. 7 Dep’t of Rev. ex rel. Gauthier v. Hoover, 40 So. 3d 99, 102 (Fla. 5th DCA 2010) .................................................................... 8 Francini v. Int’l Marble Trades, Inc., 546 So. 2d 777, 777–78 (Fla. 3d DCA 1989) .................................................. passim

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Higgins v. Garcia, 522 So. 2d 95, 96 (Fla. 3d DCA 1988) ............................................................. 3, 4, 6 In re Marriage of Gonzalez, 584 So. 2d 179, 180 (Fla. 3d DCA 1991) ........................................................... 5, 11 Keveloh v. Carter, 699 So. 2d 285, 288 (Fla. 5th DCA 1997) ....................................................... passim Lawson v. Benson, 136 So. 2d 353, 353 (Fla. 3d DCA 1962) ................................................................. 6 Lee v. Stevens of Fla., Inc., 578 So. 2d 867, 868 (Fla. 2d DCA 1991) ........................................................... 6, 10 Lienard v. DeWitt, 153 So. 2d 302, 304 (Fla. 1963) ................................................................................ 7 Mallin v. Sunshine Kitchens, Inc., 314 So. 2d 203, 204 (Fla. 3d DCA 1975) ......................................................... 3, 4, 6 Mendoza v. State, 87 So. 3d 644, 663 and n.16 (Fla. 2011) ................................................................... 5 Munsell v. Bludworth, 474 So. 2d 1286, 1288–87 (Fla. 4th DCA 1985) ................................................ 6, 10 Murphy & Jordan, Inc., v. Ins. Co. of N. Am., 278 So. 2d 296, 296–97 (Fla. 3d DCA 1973) .................................................. passim Plantation-Simon Inc. v. Bahloul, 596 So. 2d 1159, 1161 (Fla. 4th DCA 1992) .......................................................... 11 Pomerantz v. Hollowell, 502 So. 2d 1314, 1314 (Fla. 3d DCA 1987) ............................................................. 6 Shaw v. Jain, 914 So. 2d 458, 461 (Fla. 1st DCA 2005) ................................................................ 2

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Shere v. State, 742 So. 2d 215, 217 n. 6 (Fla. 1999) ......................................................................... 5 Shurman v. Atlantic Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001) .......................................................................... 6, 13 State ex rel. Ivey v. Cir. Ct. of Eleventh Jud. Cir., 51 So. 2d 792, 793–94 (Fla. 1951) ...................................................................... 7, 10 Stettner v. Richardson, 143 So. 3d 987, 987 (Fla. 3d DCA 2014) ................................................................. 6 Weaver v. Weaver, 95 So. 3d 1029, 1030 (Fla. 2d DCA 2012) ............................................................... 5 West Stuart Acreage, Inc. v. Hannett, 427 So. 2d 323, 323 (Fla. 4th DCA 1983) .............................................................. 11 WM Specialty Mortg., LLC v. Salomon, 889 So. 2d 922, 922 (Fla. 4th DCA 2004) ................................................................. 9 Florida Rule of Civil Procedure 1.310(b)(6) ..................................................... 11, 12

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ARGUMENTS IN RESPONSE AND REBUTTAL

I. Appellee fails to address that the non-resident witness immunity rule prevented vesting of personal jurisdiction over Brazilian officers Luiz Queiroz and Karine Queiroz

a. Appellee fails to make accurate and meaningful distinctions from

Murphy & Jordan, confirming immunity applies here

It remains true that this Court’s per curiam decision in Murphy & Jordan,

Inc., v. Insurance Company of North America, 278 So. 2d 296 (Fla. 3d DCA 1973),

is factually on-point, controlling, and dispositive that the services of summonses on

Luiz Queiroz and Karine Queiroz should be quashed under the non-resident

witness immunity rule. 278 So. 2d at 297 (holding where co-

defendants/nonresidents were deposed as officers of co-defendant corporation, they

were immune from process on causes against them personally in the same case,).

It remains true that the facts and posture in Murphy & Jordan are the same

as here. As in Murphy, Appellee filed a complaint against a Florida company

(Soho Bay) and its non-resident owners and corporate officers (Luiz Queiroz and

Karine Queiroz). App. 1; Murphy at 296–97. As in Murphy, Appellee did not serve

the officers with summonses at their residences, but served process on the Florida

company (Soho Bay) through its agent (manager Max Heindl). App. 381–86;

Murphy at 296. As in Murphy, Appellee then served notices of deposition to the

Florida company (Soho Bay) for deposition of its officers (Luiz Queiroz and

Karine Queiroz), despite lack of service of process on them personally. App. 495–

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509 and 381–86; Murphy at 296. As in Murphy, when the officers arrived for

depositions, Appellee served them with summonses on the personal causes of

action in the same lawsuit. App. 387–90; Murphy at 296.

There could hardly be a more indistinguishable set of facts and procedural

posture. This is dispositive. Because Murphy & Jordan condemns Appellee’s

improper service of process, Appellee seeks to invent distinctions where there are

none.1 Yet, there is no mention whatsoever of long-arm jurisdiction or minimum

contacts in Murphy & Jordan—it is irrelevant to the question of immunity from

service of process. Likewise, despite Appellee’s misstatement, the company served

in Murphy & Jordan was a Florida company (M. & J., Inc. of Fla.) and the officers

were served through deposition on that Florida company, just as it was here.2

Appellee should well know that it is impermissible to go behind the facts

stated in an appellate opinion to find a basis for distinguishing or limiting its

intended holding. Shaw v. Jain, 914 So. 2d 458, 461 (Fla. 1st DCA 2005) (“It is

elementary that the holding in an appellate decision is limited to the actual facts

recited in the opinion.”); Adams v. Aetna Cas. & Sur. Co., 574 So. 2d 1142, 1153

(Fla. 1st DCA 1991) (same); Adelman Steel Corp. v. Winter, 610 So. 2d 494, 503

1 See Answer Brief Argument, subheading I and *14 (“Unlike in Murphy, . . .”). 2 Answer Brief at *14; cf. Murphy at 296 (“plaintiffs renoticed the depositions of Thomas Jordan, as president of Murphy & Jordan, Inc., a Florida corporation, and William Murphy, as secretary of Murphy & Jordan, Inc., a Florida corporation”).

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(Fla. 1st DCA 1992) (“[i]t is impermissible . . . to go behind the facts stated in an

opinion to find a basis for distinguishing or limiting its intended holding.”).

Thus, this Court should disregard Appellee’s misstatements and confirm that

Luiz Queiroz and Karine Queiroz were immune from service at their depositions.

As such, the trial court lacked personal jurisdiction over Luiz Queiroz and Karine

Queiroz to enter the June 21st orders against them. See Keveloh v. Carter, 699 So.

2d 285, 288 (Fla. 5th DCA 1997) (“Florida never acquired personal jurisdiction

over [defendant]. She was immune from service of process while attending these

court proceedings”). This Court should therefore reverse the June 21st orders on

motions to quash and sanction, and remand to quash process.

b. Appellee fails to recognize that immunity applies even in the same lawsuit with the same persons, under Murphy & Jordan, Higgins, Cordoba, Mallin, and Keveloh

The non-resident witness immunity rule applies even where the defendant is

served while appearing in the same lawsuit in which he is also sued, but in

different causes of action or in different capacities or roles. Higgins v. Garcia, 522

So. 2d 95, 96 (Fla. 3d DCA 1988) (immunity on breach/fraud claims at deposition

for co-defendant company on same claims in same case); Murphy & Jordan at 297

(immunity on personal causes while attending deposition on causes against

company in same suit); Mallin v. Sunshine Kitchens, Inc., 314 So. 2d 203, 204

(Fla. 3d DCA 1975) (immunity at settlement conference on same claims in same

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suit); Cordoba v. Cordoba, 393 So. 2d 589, 591 (Fla. 4th DCA 1981) (immunity

on Count I while appearing on Count II/IV in same suit); Keveloh at 288

(immunity when appearing in Florida to contest jurisdiction in the same lawsuit).

Appellee fails to address Higgins, Cordoba, Mallin, Murphy & Jordan, and

Keveloh when arguing that an exception to immunity should apply, and thus

Appellee must have conceded as to their applicability and their dispositive effect

here. Am. Baseball Cap, Inc. v. Duzinski, 308 So. 2d 639, 641 (Fla. 1st DCA 1975)

(“the presentation of new points by appellees does not excuse failure to respond to

points raised and argued in appellant’s brief.”).

As these appellate decisions show, the question is not whether the persons

served are also defendants in the same lawsuit, but whether the persons served

were appearing in the exact same capacity for the exact same cause of action,

purpose, and role. Higgins at 96; Murphy & Jordan at 297; Mallin at 204; Cordoba

at 591; Keveloh at 288. This is the complete identity required to impose the limited

exception to the non-resident witness immunity rule. Francini v. Int’l Marble

Trades, Inc., 546 So. 2d 777 n.1 (Fla. 3d DCA 1989) (total identity required).

Here, Luiz Queiroz and Karine Queiroz appeared in their corporate officer

capacity on Counts I and III (breach of lease and escrow declaration) against Soho

Bay and Katz Barron, while specifically contesting appearance and personal

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jurisdiction on Count II (breach of guaranty).3 Because Luiz Queiroz and Karine

Queiroz appeared in different capacities, on different causes of action, for different

purposes, while contesting personal jurisdiction, the non-resident witness

immunity rule applies. Thus, this Court should reverse the June 21st orders for lack

of jurisdiction and remand with directions to quash process and service of process.

c. Appellee concedes that the immunity rule’s policy and all other case law support immunity here

A party abandons any challenge on appeal where it does not address an issue

or claim in the body of argument in its appellate brief. See Mendoza v. State, 87

So. 3d 644, 663 and n.16 (Fla. 2011) (party abandoned claim by omission);

Chamberlain v. State, 881 So. 2d 1087, 1103 (Fla. 2004) (where a party fails to

advance an argument, the appellate court concludes the issue abandoned); Shere v.

State, 742 So. 2d 215, 217 n. 6 (Fla. 1999) (finding that issues raised in appellate

brief which contain no argument are deemed abandoned); Weaver v. Weaver, 95

So. 3d 1029, 1030 (Fla. 2d DCA 2012) (issue abandoned where not hit in brief).

Here, Appellee has failed to address the policy and significant case law

supporting immunity and raised in this appeal.4 Thus, Appellee concedes, these

decisions confirm immunity. See In re Marriage of Gonzalez, 584 So. 2d 179, 180 3 App. 1 (complaint), App. 135 at TR. 18, ln. 15–19 (“Trial Court: only in their capacity as officers”), App. 138 (“Karine Queiroz and Luiz Queiroz shall appear for deposition in their corporate capacity”), App. 145 at ¶ 4 (“We preserve . . . do not consent to jurisdiction.”), App. 387–90 (services on Count II). 4 Initial Brief at *8–10 (subsections I(b) and I(c)).

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(Fla. 3d DCA 1991) (nonresident officer immunity); Francini, 546 So. 2d at 777–

78 (London officer immunity); Higgins, 522 So. 2d at 96 (officer immunity).5

Appellee likewise concedes that immunity should be upheld here to preserve

the policy and purpose of the immunity rule, to prevent the chilling effect on non-

resident depositions and faith in the trial courts.6 Appellee concedes we should

avoid deterring witnesses and parties from coming forward for fear of being served

with process on different claims or in different capacities, which would occur here

if immunity were not upheld. Munsell v. Bludworth, 474 So. 2d 1286, 1288 (Fla.

4th DCA 1985) (policy); Cordoba at 591 (policy); Lee at 868 (policy).

Appellee concedes that the need to prevent fear of service at deposition is

compounded by the need to strictly comply with all service of process rules. See

Shurman v. Atlantic Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001) (policy);

Stettner v. Richardson, 143 So. 3d 987, 990 (Fla. 3d DCA 2014) (policy).

Here, it remains true that denial of Luiz Queiroz and Karine Queiroz’s

immunity runs afoul of the policy and purpose of the non-resident witness

immunity rule and the policy of strict enforcement on those attempting service of

process. The alternative harsh entry into the judicial system is unreasonable and

5 See also Pomerantz v. Hollowell, 502 So. 2d 1314, 1314 (Fla. 3d DCA 1987); Mallin at 204; Lawson v. Benson, 136 So. 2d 353, 353 (Fla. 3d DCA 1962); Cordoba at 590–92 (immunity on Count I, appearing on II/IV); Keveloh, 699 So. 2d at 288; Lee v. Stevens of Fla., Inc., 578 So. 2d 867, 868 (Fla. 2d DCA 1991). 6 Initial Brief at *9–10 (subsection I(c) on policy and purpose).

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fearsome. Appellee concedes that failing to uphold immunity here will cause

witnesses to avoid coming in for fear of service. Appellee concedes this is bad

precedent and a bad message—the result the immunity rule is designed to avoid.

Thus, this Court should reverse the June 21st orders and remand to quash process.

d. Appellee fails to cite any precedent for its erroneous positions on immunity, while misstating the rule and record

Appellee simply fails to cite any case law supporting its interpretation of

immunity. In fact, all of the case law cited throughout this appeal controverts

Appellee’s arguments while supporting Luiz Queiroz and Karine Queiroz’s

immunity. Appellee only notes Francini, in which this Court upheld immunity.

Francini, 546 So. 2d at n. 1 (clarifying Lienard, 153 So. 2d 302 “significantly

narrowed the exception to the immunity rule as broadly stated in [State ex rel. Ivey

v. Cir. Ct. of Eleventh Jud. Cir., 51 So. 2d 792, 793–94 (Fla. 1951)]”).

Similarly, there is no case law or record supporting Appellee’s errant

footnote 3 on superseding orders.7 Florida law and the record contradict Appellee’s

interpretation of the trial court’s deposition orders—one order is on corporate

capacity, the other order is on location, and thus neither supersedes the other. See,

e.g., Dep’t of Rev. v. Martin, 65 So. 3d 603, 604 (Fla. 5th DCA 2011) (order not

7 Answer Brief at *17 n.3; cf. App. 138 (ordered “in their corporate capacity”) and App. 165 (ordered “in the nearest metropolitan city.”).

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superseding, but to enforce); Dep’t of Rev. ex rel. Gauthier v. Hoover, 40 So. 3d

99, 102 (Fla. 5th DCA 2010) (order not superseding, did not change prior duties).

There is no case law supporting Appellee’s errant footnote 2 on the

challenge to jurisdiction and sanctions. Florida law and the record contradict

Appellee’s misinterpretations, as failure to perform proper service of process

prevents vesting of personal jurisdiction.8 Keveloh at 288 (“Florida never acquired

personal jurisdiction over [defendant]. She was immune from service of process

[under the immunity rule] while attending these court proceedings”); see also Am.

Exp. Ins. Servs. Europe Ltd. v. Duvall, 972 So. 2d 1035, 1041 (Fla. 3d DCA 2008)

(attending deposition did not waive objection to jurisdiction).

Appellee fails to recognize that the challenge to personal jurisdiction for

improper service or process applies to all orders directed at Luiz Queiroz and

Karine Queiroz, including the sanctions order, as the trial court lacked jurisdiction

over them as persons. Alvarado v. Cisneros, 919 So. 2d 585, 587 (Fla. 3d DCA

2006) (orders void without proper service of process, for lack of personal

jurisdiction); Buckingham Estates Homeowners Ass’n, Inc. v. Metcalf, 207 So. 3d

966, 967 (Fla. 5th DCA 2016) (no jurisdiction to enter sanctions where parties not 8 All Soho Bay’s filings below objected to personal jurisdiction on Luiz Queiroz and Karine Queiroz. App. 100 at n.1; App. 143 at n.2; App. 168 at n.9; App. 199 at n.33; App. 315 at n.41; App. 395 at n.1; App. 410 at n.3. Luiz Queiroz and Karine Queiroz likewise specifically objected to jurisdiction. App. 145 at ¶ 4 (“We preserve all rights, objections, and defenses in this lawsuit and do not consent to jurisdiction.”); Initial Brief at *6 and 10 (challenge sanctions order).

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properly before the court); WM Specialty Mortg., LLC v. Salomon, 889 So. 2d 922,

922 (Fla. 4th DCA 2004) (no jurisdiction to enter order imposing discovery

sanctions, where parties not properly before the court).

Contrary to Appellee’s misstatements, the trial court improperly exercised

personal jurisdiction to order Luiz Queiroz and Karine Queiroz to pay for

Appellee’s time scheduling Soho Bay’s depositions.9 Although Soho Bay has

ample grounds to challenge the stated rationale for sanctions,10 an expansive

discussion is unnecessary here because the trial court lacked jurisdiction to enter

orders against Luiz Queiroz and Karine Queiroz personally for purported discovery

violations by Soho Bay. Alvarado at 587; Metcalf at 967; Salomon at 922.

9App. 264 (Appellee’s Motion for Sanctions requesting sanctions for the “time and resources to resolve the issue” of travel for depositions); App. 270 (Motion for Sanctions requesting “reasonable expenses and attorneys’ fees incurred in scheduling Defendants’ depositions and preparing this motion”); App. 476 (June 21st order granting Appellee’s motion for sanctions). 10 The trial court entered this discovery sanction order over objection and despite lack of personal jurisdiction, because the trial court determined that the need to obtain special government permissions for travel from Brazil to the U.S. for depositions were “administrative matters,” not “immigration hurdles.” App. 435 at TR. 20, ln. 19–20 (“Trial Court: That is not immigration. That is administrative matters.”). The trial court did not recognize the distinction between the officers’ ease of travel for tourism and the difficulty for them as Brazilians to travel for U.S. deposition, which is prohibited by the Brazil Ministry of Justice and the U.S. State Department. App. 433–445; App. 166–83; App. 184–263; App. 305–80. Soho Bay provided testimony and authority contravening the trial court’s interpretation and objected to the amount of misinformation swirling through the proceedings below. App 391–415. There was no perjury mention or finding whatsoever as to Karine Queiroz and insufficient grounds to sanction her. No allegations were made specifically as to Luiz Queiroz and there is no basis to sanction Luiz Queiroz at all.

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There is no case law supporting Appellee’s misinterpretation of the limited

exception to the non-resident witness immunity rule. Appellee mistakenly relies on

outdated, invalid case law as to the immunity exception. See Answer Brief at *15

(relying on obsolete standard in State ex rel. Ivey v. Cir. Ct. of 11th Jud. Cir.).

However, as this Court held in Francini v. Int’l Marble Trades, Inc., the Florida

Supreme Court significantly narrowed the only exception to immunity, requiring

complete identity of parties (appear in same role/capacity) and identity of causes of

action (appear on same count). Francini, 546 So. 2d 777 n.1 (Fla. 3d DCA 1989).

There is no case law supporting Appellee’s representation of policies behind

the non-resident witness immunity rule. In fact, the immunity rule specifically puts

the goal of incentivizing voluntary appearance of witnesses/parties through

immunity protection above any single plaintiff’s desire to serve summonses on

witnesses when they appear to testify. Munsell v. Bludworth, 474 So. 2d 1286,

1288 (Fla. 4th DCA 1985) (policy); Cordoba v. Cordoba, 393 So. 2d 589, 591

(Fla. 4th DCA 1981) (policy); Lee v. Stevens, 578 So. 2d at 868 (policy).

Given that Appellee fails to cite any precedent or other legal support for its

erroneous positions on immunity, while misstating the record and the rules, the

Court should uphold immunity and reverse for lack of personal jurisdiction here.

Thus, the Court should reverse the June 21st orders and remand with instructions to

quash process and service of process.

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e. Appellee fails to cite any precedent for its erroneous position on corporate appearances, while misstating the rule and record

There is no case law supporting Appellee’s erroneous position on corporate

appearances at deposition, as already addressed in the Reply to Appellee’s

Response Pages 7 to 9.11 Appellee still fails to recognize that there are at least two

types of corporate witnesses: (1) the Rule 1.310(b)(6) corporate representative

appearing to testify vicariously on the corporation’s knowledge; and (2) a

corporate officer witness appearing to testify from his individual personal

knowledge as to corporate affairs, but not as the corporate representative. Carriage

Hills Condo. Inc. v. JBH Roofing and Constructors, Inc., 109 So. 3d 329, 334–38

(Fla. 4th DCA 2013) (distinguishing corporate witnesses); see also Plantation-

Simon Inc. v. Bahloul, 596 So. 2d 1159, 1161 (Fla. 4th DCA 1992) (same).

Appellee still fails to recognize that these are distinct from appearing as a

defendant to testify on one’s own personal liability. Id.; West Stuart Acreage, Inc.

v. Hannett, 427 So. 2d 323, 323 (Fla. 4th DCA 1983) (president could not be

required to appear for deposition on claims against him personally where not

served summons); In re Marriage of Gonzalez, 584 So. 2d 179, 180 (Fla. 3d DCA

1991) (officer immune when appearing to testify on corporate co-defendant).

Appellee still fails to recognize that Florida law and the full record make

plain that Luiz Queiroz and Karine Queiroz appeared as corporate officers only. 11 App. 477 (Reply to Appellee’s Response to Pages 7 to 9, incorporated herein).

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Appellee served notices of deposition on Soho Bay for three corporate witnesses:

(i) the Rule 1.310(b)(6) corporate representative (Max Heindl); (ii) officer Luiz

Queiroz; and (iii) officer Karine Queiroz.12 All three came on May 19th.13

When Appellee attempted to coerce Luiz Queiroz and Karine Queiroz to

vicariously testify as the Rule 1.310(b)(6) corporate representative on Soho Bay’s

knowledge, rather than as regular corporate officer witnesses, Soho Bay objected:

APPELLEE: Do you understand that you’re here as a corporate representative of Soho Bay Restaurant?

SOHO BAY COUNSEL: Object to form. She was not listed as a corporate representative of Soho Bay Restaurant. For the record, we designated the manager of Soho, Maximilian Heindl, as the corporate representative and the opposing counsel decided to take notice and to serve depositions of the officers . . . I will have you call the Judge . . . You’re trying to modify the deposition to a corporate representative deposition . . .14

Nothing more. The trial court confirmed their corporate-only appearance:

TRIAL COURT: They have to appear only in their capacity as officers. And any questions in reference to their personal liability, they don’t have to respond. Only in their capacity as officers.15

The trial court ordered that immunity was preserved for the depositions.16 Soho

Bay’s objections did not to waive the non-resident witness immunity issue or the

12 App. 495–509 (notices of deposition). 13 App. 120 at TR. 3, ln. 24–TR. 4, ln. 4 (“We’ve designated a corporate representative . . . it’s Max Heindl”); App. 512 and 520 (“present: Max Heindl”). 14 App. 514 at TR. 10, ln. 14–TR. 13, ln. 21 (Karine Queiroz deposition). 15 App. 135 at TR. 18, ln. 16–22 (emphasis added); App. 138 (3/23 order). 16 Id. (Trial Court: “if any attempt is made to serve process on them while they’re here, we’ll have the arguments [on immunity].”).

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witnesses’ corporate-capacity appearance.17 Appellee already conceded and agreed

to this.18 Appellee confirmed in writing that the officers’ appearance at deposition

was “without waiving the nonresident witness immunity rule argument of

course.” 19 Appellee’s obfuscation of this is improper. Immunity applies.

f. Appellee’s digression on long-arm jurisdiction is irrelevant to the non-resident witness immunity rule

It should be beyond peradventure that a trial court’s jurisdiction over a

person does not vest until the plaintiff performs a valid, perfect, and non-immune

service of process. Shurman, 795 So. 2d at 953 (fundamental purpose of service of

process is to vest jurisdiction); Klinger v. Milton Holding Co., 136 Fla. 50, 61 (Fla.

1938) (no jurisdiction over person of defendant for defective service, any court

action against him is without authority of law); Ingenieria Y Exportacion De

17 Every one of Soho Bay’s filings preserved the objection to jurisdiction. App. 100 at n.1; App. 143 at n.2; App. 145 at ¶ 4; App. 168 at n.9; App. 199 at n.33; App. 315 at n.41; App. 395 at n.1; App. 410 at n.3; App. 408 (Soho Bay reply and objections “as more than officer[s]”). 18 Id.; App. 154 and 164 (Appellee emails agreeing to preserve immunity); App. 129 at TR. 12, ln. 18–20 (“let’s assume that there’s simply a case against the corporate defendant;”); App. 122 at TR. 5, ln. 5–7 (“it’s not on behalf of the individuals, it’s through the defendant entity”); App. 134 at TR. 17, ln. 25–TR. 16, ln. 2 (“this has nothing to do with the individual claims against these defendants.”). 19 App. 154 (Appellee: “please let us know if you will be accepting service on their behalf in their individual capacity (without waiving the nonresident immunity rule argument of course).”); App. 164 (Appellee: “obviously if you [accept] on their behalf that would be without waiving arguments regarding the [imm]unity issue [raised] today and a reservation of all those rights.”).

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Tecnologia S.L. v. Freytech, Inc., 210 So. 3d 211, 212 (Fla. 3d DCA 2016) (strict

compliance with service of process required to acquire jurisdiction over person).

It should also be beyond peradventure that vesting of personal jurisdiction

through proper and non-immune service of process is distinct from the possibility

of long-arm jurisdiction under Florida Statutes § 48.193—both long-arm

jurisdiction and personal jurisdiction through proper and non-immune service of

process are required to confer and vest jurisdiction over a non-resident’s person.

Gulf Atlantic Transp. Co. v. Offshore Tugs, Inc., 740 F. Supp. 823 (M.D. Fla.

1990) (jurisdiction not acquired over nonresidents under Fla. Stat. § 48.193 where

not personally served summonses); Bedford Computer Corp. v. Graphic Press,

Inc., 484 So. 2d 1225, 1227 (Fla. 1986) (personal service on nonresident was only

way to obtain in personam judgment, despite long-arm jurisdiction and actual

notice); Drury v. Nat’l Auto Lenders, Inc., 83 So. 3d 951, 952–53 (Fla. 3d DCA

2012) (service by publication for personal guaranty is not statutorily authorized).

Because the non-resident witness immunity rule invalidated Appellee’s

service of summonses, the trial court’s jurisdiction did not vest over Luiz Queiroz

and Karine Queiroz personally. See supra; Ingenieria at 213 (J. Salter joining).

Because Appellee’s digression on long-arm jurisdiction and minimum contacts is

irrelevant to vesting of personal jurisdiction through non-immune service of

process, the Court should ignore it. Because the non-resident witness immunity

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rule and its policy against chilling witness attendance are unaffected by Appellee’s

digression, this Court should reverse the June 21st orders for lack of personal

jurisdiction and remand with instructions to quash process.

CONCLUSION

Because it remains true that this Court should uphold the non-resident

witness immunity rule to prevent a chilling effect on non-resident attendance at

Florida depositions and other proceedings, as required by on-point and controlling

case law, this Court should uphold the immunity rule here by reversing the June

21st orders for lack of personal jurisdiction and remanding with directions to quash

process and service of process on Luiz Queiroz and Karine Queiroz.

Respectfully submitted, /s/ Andrew J. Bernhard, Esq. Andrew J. Bernhard, Esq. Florida Bar No. 84031 BERNHARD LAW FIRM PLLC 333 SE 2 Ave., Ste. 2000, Miami, FL 33131 Phone: 786.871.3349 E-mail: abernhard@bernhardlawfirm.com

CERTIFICATE OF SERVICE

I CERTIFY that, in accordance with Fla. R. Jud. Admin. 2.516, a copy of

this document was served by email and U.S. mail on September 5, 2017, to: Javier A. Lopez, Esq., 2525 Ponce de Leon Blvd., Ste. 900, Coral Gables, FL 33134, jal@kttlaw.com

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CERTIFICATE OF COMPLIANCE

I CERTIFY that the foregoing document is in compliance with the Rule’s font requirements [Times New Roman 14].