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Filing # 92116164 E-Filed 07/05/2019 10:07:45 AM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
VINCENZO DEPAU,
Plaintiff, CIVIL DIVISION
ve
CASE NO. 2017-018931-CA-01
MICHAEL STERN, et. al.
Defendants.
OPPOSITION TO DEFENDANT COLLEGE
HEALTH II GP, INC.’S MOTION TO REHEARING
The Plaintiff Vincenzo DePau hereby complies with this Court’s June 26, 2019 sua sponte
Order to explain why Defendant College Health II G.P., Inc.’s (“College Health”) Motion for
Rehearing should be denied.
I. THE MOTION SHOULD BE STRICKEN
As discussed below, College Health has presented no evidence that it now complies with
its registered agent obligations or that it paid the appropriate penalty for its failure to do so. Fla.
Stat. § 607.0501(5). Thus, it is still statutorily precluded from taking action in this court and its
motions for rehearing should be stricken.
Il. INTRODUCTION AND SUMMARY
The Court already allotted a morning for evidentiary proceedings so College Health could
explain why the default against it should be vacated. Demonstrating its full contempt for the
Court’s limited resources, College Health didn’t bother to present a single shred of evidence,
whether through live witnesses or otherwise. To the contrary, College Health’s lawyer, who is also
a fact witness because he threatened a process server and made him fear for his life, admitted he
did not object to the process server’s sworn attempts at service. College Health’s registered agent
Page 1 of 12and officer ignored a subpoena to appear to the hearing altogether. To the contrary, the Plaintiff
fully respected the Court’s sua sponte initiative to allow a full vetting of College Health’s request.
The Plaintiff's lawyers appeared and so did his process server, who was ready to present live
testimony subject to cross examination (tellingly, College Health chose not to elicit any testimony
from the process server).
Now, College Health wants the Court to allocate more of its scarce resources away from
worthy litigants so it can rerun this charade. In support, it submitted affidavits directly rebutting
the representations it already made to this tribunal.’ But these affidavits and their moving papers
do nothing to address College Health’ failure to comply with the registered agent act, that its
lawyer threatened an officer of the court, present no relevant facts, its failure to file a responsive
pleading, and present no new facts to support a rehearing. Finally, College Health’s papers don’t
present any actual defense, meritorious or otherwise, to the allegations in the Plaintiff's complaint.
Ill. RELEVANT FACTS
The relevant facts are set out in more detail in the Plaintiff's June 2, 2019 Opposition to
Defendant College Health’s Motion to Vacate Default. While familiarity with those facts is likely,
they are summarized and supplemented here.
a. Service of Process
Initially, the Plaintiff's process server, Christopher Mas, arrived at College Health’s
principal office and registered agent address during statutorily prescribed hours where he was met
by College Health’s lawyer, Jesse Dean-Kluger.? See June 3, 2019 Transcript of Record
' In addition, the affidavits were not served with College Health’s first motion for rehearing, thus
violating Fla. R. Civ. P. 1.530(c) (“When a motion for a new trial is based on affidavits, the affidavits
shall be served with the motion.”).
? Given than Mr. Dean-Kluger is an attorney for both College Health and its registered agent, Mr.
Mas’s interactions with Mr. Dean-Kluger also constitute sufficient service.
Page 2 of 12(hereinafter “Tr.”) at 22, a copy of which is attached as Exhibit A. When Mr. Mas asked for
College Health’s registered agent, i.e., Samuel Burstyn, Mr. Dean-Kluger repeatedly and angrily
yelled at Mr. Mas and informed him that Mr. Burstyn was not present, did not work at that location,
and threatened to call the police. Mr. Dean-Kluger’s behavior was so intense that Mr. Mas felt
uncomfortable, feared for his life, and felt unable to return for safety concerns. Mr. Mas’s’ Return
of Non-Service which sets forth the events that took place in Mr. Dean-Kluger’s office is attached
as Exhibit B. In addition, on June 3, 2019, Mr. Dean-Kluger informed the Court that he did dispute
the accuracy of events set forth in Mr. Mas’s affidavit. Tr. at 8:4-7; 19:15-20; 20:7-11. While Mr.
Burstyn filed an affidavit claiming he does maintain College Health’s listed registered agent
address, he tellingly cannot affirm that he was present there during statutorily prescribed hours.
Thereafter, the Plaintiff unsuccessfully tried to serve Mr. Burstyn, a disbarred former
lawyer and registered agent and officer of College Health, at various other locations until it was
determined that College Health’s officers were actively evading service. See Second Return of
Non-Service attached as Exhibit C; see also Tr. at 24, 28-29. Finally, service was effectuated by
publication and, when no answer was filed, a default entered on April 29, 2019.
b. College Health’s Effort to Vacate the Default
On May 28, 2019, College Health moved to vacate the default entered against it. In
response, the Court allotted a two-hour evidentiary hearing so College Health could attempt to
meet its evidentiary burden in vacating the default. At the hearing, College Health was represented
by counsel but chose not to present any evidence whatsoever. Now, on the basis of contradictory
affidavits that, in large part, spew out mere legal conclusions, it asks for a do-over.
Page 3 of 12IV. LEGAL STANDARD
College Health doesn’t contest that, to set aside a default, it must establish each of the
following: (1) that its failure to file a timely responsive pleading or other failure was the result of
excusable neglect; (2) that it has a meritorious defense; and (3) that it reasonably diligent in seeking
to vacate the default. Nothing has changed since the time it filed its initial motion or when the first
evidentiary hearing was held. College Health still cannot meet any of these elements, let alone all
of them.
The standard of review on a denial of a motion for rehearing is abuse of discretion. Beacon
Hill Homeowners Assoc., Inc. v. Colfin AH-Fla. 7, LLC, 221 So. 3d 710, 712 (Fla. 3d-DCA 2017)
(affirming denial of motion for rehearing); but see Rachid v. Perez, 26 So. 3d 70, (Fla. 34 DCA
2010) (“Because her appeal is directed to the order denying her motion for rehearing ... the
standard of review is gross abuse of discretion”) (emphasis added) (other portions receded from
in DePrince y. Starboard Cruise Serv’s., Inc., --- So. 3d ---, 2018 WL 3636849 (Fla. 3d DCA Aug.
1, 2018).
Vv. ARGUMENTS
a. College Health Waived Its Ability to Contest Service
College Health, which has been properly served by publication, made a general
appearance in this case, has not moved to set aside or quash service but claims that it is actively
raising merits defenses. College Health’s general notice of appearance, through its counsel
Jesse Dean-Kluger, is attached as Exhibit D, and Defendant’s initial motion to vacate the
default did nothing to question the sufficiency of service at all.
Accordingly, any objections to sufficiency of service have been waived. See Parra v.
Raskin, 647 So. 2d 1010, 1011 (Fla. 3d DCA 1995) (failure to raise insufficient service of
Page 4 of 12process defense at inception of case, in either motion or responsive pleading, constitutes waiver
of that defense); see also Lennar Homes, Inc. v. Gabb Const. Serv’s, Inc., 654 So. 2d 649, 651
(Fla. 3d DCA 1995) (“A defendant who fails to contest the sufficiency of service of process at
the inception of the case, whether by motion or responsive pleading, has waived this defense
once he or she entered a general appearance”).
Nothing in College Health’s request for a rehearing can change the fact that it can no
longer contest service. Thus, the lone issue was whether College Health can sufficiently
demonstrate the default entered against it should be vacated. Interestingly, it had an
opportunity to make such a showing but refused to submit any evidence whatsoever.
b. Even If College Health Could Contest Sufficiency of Service, Which It
Cannot, Service Was Proper
Even if College Health could contest the sufficiency of service, which it cannot, service
was proper because its de facto registered agent intentionally refused service, because it otherwise
intentionally evaded service, and since College Health did not exist under the Florida Business
Corporations Act for failure to properly maintain a registered agent, there was no address that
could have been listed on the Notice of Action (indeed, given that Plaintiff's process servers were
rebuked everywhere they went, it would have been illogical to list one of those addresses on the
notice).
i. Service Was Effectuated through Mr. Dean-Kluger
Fla. Stat. § 48.081(3)(a) provides that “if service cannot be made on a registered agent
because of failure to comply with s. 48.091, service of process shall be permitted on any employee
at the corporation’s principal place of business or on any employee of the registered agent.”
Page 5 of 12As noted in the June 3, 2019 evidentiary hearing on College Health’s Motion to Vacate
Default, College Health does not dispute Plaintiff’s allegations related to the September 25, 2018
service and, in turn, alludes to its own non-compliance with Fla. Stat. § 48.091, i.e., the registered
agent statute. See Tr. at 19 (“Other than his characterization of my behavior, I don’t dispute
anything they’ve said about service. They did their diligent search.”). Further, in the June 3, 2019
hearing, Judge Hogan Scola agreed with Plaintiff and found that College Health “did not comply
with the statute by failing to have someone at the registered agent location” and as a result found
“that [it] does not have the legal ability to represent or defend” this action at all. See Tr. at 29.
Mr. Dean-Kluger has acted as Mr. Burstyn’s personal attorney since long before his
encounter with Mr. Mas. And he is also counsel for College Health. See Kalb v. Sail Condo.
Ass’n., Inc., 112 So. 3d 674, 675 (Fla. 3d DCA 2013) (Because “service on the registered
agent’s employee was proper ... under the plain language of the statute, service on the
employee was valid” and reversing order vacating judgment). Accordingly, since College
Health snubbed the registered agent requirements, Mr. Dean-Kluger was a proper person to
accept service.
Nonetheless, Mr. Dean-Kluger, a member of the Florida bar, reacted aggressively when
he was met by Mr. Mas and told him to get out of the office even though he was aware Mr.
Mas was a court officer attempting to effect service.
ii. After Months of Evasion, Service was Properly Effectuated by
Publication
College Health’s evasionary tactics forced the Plaintiff to incur the needless expense of
obtaining service through publication under Fla. Stat. Ch. 49. Accordingly, a notice of action
in the form prescribed by Fla. Stat. § 49.08 was published. College Health now absurdly claims
Page 6 of 12that this notice is deficient of action because it does not contain College Health’s address. This
argument fails for two compelling reasons. First, the statute does not require that an address
be listed. See Fla. Stat. § 49.08 (setting forth the exclusive contents required in a notice of
action). Copies of Fla. Stat. § 49.08 and the Notice of Action published in this case are attached
as Composite Exhibit E. Second, even assuming that a notice of action needs to have an
address (which it does not, see id.), because College Health refused to comply with the
registered agent act, the Plaintiff had no idea as to which address he should conceivably list.
c. College Health Had Actual Notice of Service and There Is No Excusable
Neglect
College Health had actual notice of this lawsuit since September 25, 2019 when Mr. Dean-
Kluger intentionally refused to accept service and threw a licensed process server out of his office
and onto the streets. Mr. Dean-Kluger took these actions even after the process server specifically
asked for Mr. Burstyn, College Health’s registered agent who Mr. Dean-Kluger had been
representing for nearly a year at that point in one matter alone. See Burstyn v. G.L. S.L. Signature
Homes, LLC, et. al., Case No. 2018-000216-CA-01 (11th Jud. Cir.) (Mr. Dean-Kluger counsel of
record for Mr. Burstyn since January 3, 2018).
Notably, on June 3, 2019, when Mr. Dean-Kluger would have been subject to cross-
examination, he never attempted to otherwise scrutinize the process server’s characterization of
events, including that he, i.e., Mr. Dean-Kluger, “repeatedly yelled at me [the process server] that
Samuel I. Burstyn is not located here” or that he “stated yet again agitated and angrily that the
Registered Agent does not work here.”
Instead, Mr. Dean-Kluger conceded that the substantive statements in the process server’s
return of non-service were accurate by stating:
I’m not — so from an evidentiary perspective, I’m not disputing
Page 7 of 12anything in this affidavit or the affidavit of service. Tr. 8:4-7.
I see that they have their process server here today. Other than his
characterization of my behavior, I don’t dispute anything they’ve
said about service. They did their diligent search. They made a
bunch of attempts ... Tr. 19:15-20 (emphasis added).
[O]ther than the characterization of my behavior, I don’t have an
issue that the fact that the processor was there and the registered
agent wasn’t. Tr. 20:7-11 (emphasis added).
Then, on June 26, 2019 Mr. Dean-Kluger submitted an affidavit, which College Health
hopes will lift its chances of getting a rehearing. But this affidavit stands in stark contrast to the
statements made by counsel earlier and should be disregarded, especially because he won’t be
subject to cross examination until the Court wastes valuable resources in setting yet another
evidentiary hearing.* Those contradicting statements include:
On September 25, 2019, a process server came to Mr. Burstyn’s
office, during the lunch hour, at approximately 11:30am. I heard the
gentleman enter the office and I approached him. He asked for Mr.
Burstyn. I told the process server that Mr. Burstyn was not in at that
moment. Thereafter the process server left the office. Dean-Kluger
Aff. At 4.
I asked him why he was still there and asked him to leave. He
refused to step out of the office. Eventually [sic], he left. Dean-
Kluger Aff. At 96
I never told the process server that Mr. Burstyn did not maintain an
office here, was “not located here”, or “does not work here.” Dean-
3 This only leaves the parties to wonder if College Health will comply with subpoenas or present any
evidence at all, should the court choose to hold another hearing.
Page 8 of 12Kluger Aff. At 7.
Indeed, after refusing to present evidence at a two-hour evidentiary hearing, an affidavit
with direct contradictions to earlier representations of counsel should be given little, if any, weight.
d. College Health May Still Not Defend This Action
College Health has presented no evidence that it now complies with its registered agent
obligations or that it paid the appropriate penalty to the Department of State. Fla. Stat. §
607.0501(5) even though the Court has already ruled it does not comply:
The Court: I also find that the entity [College Health] does not have
the legal ability to represent or defend the instance [sic] action
because it did not comply with the statute by failing to have someone
at the registered location.
Tr. at p.29:3-7; see also Fla. Stat. 607.0501(5) (corporation may not maintain any action until it
pays to the Department a penalty).
e. College Health Has Not Shown Any Meritorious Defense
It is College Health’s burden to demonstrate a meritorious defense to Plaintiff’s claims
before the default can be set aside. Boilerplate assertions of defenses, however, constitute mere
legal conclusions not entitled to weight. College Health’s motion simply claims “[i]t is
Defendant’s position that its claims against the property ... have priority.” This was not
sufficient to demonstrate a meritorious defense before the June 3, 2019 hearing and it is not
sufficient now. Indeed, even now, rather than actually explain its purported defenses, College
Health merely refers the Court to a crossclaim in a separate lawsuit by College Health against
DePau. But the Court shouldn’t have to pilfer through filings in other cases to decide whether
it has merit — assuming it’s relevant at all. And mere untested allegations in unrelated litigation
don’t constitute a defense.
Page 9 of 12College Health’s purported defense is also not meritorious because its purported lien
on the property in this case arises out of a judgment that was recorded after the Plaintiff's
mortgage and its cross claim is further subject to dismissal due to its failure to comply with
Fla. Stat. § 607.0501.
f. College Health Was Not Reasonably Diligent In Seeking to Vacate
College Health was also not diligent in vacating the default at issue. First, as explained
above, College Health has been on notice of this lawsuit since last year when College Health’s
lawyer, Mr. Dean-Kluger, was personally confronted at the registered agent address by a process
server attempting to effectuate service. Rather than accept service or inquire, Mr. Dean-Kluger,
and thus Defendant, purported to gauge their own eyes out by threatening the process server and
refusing to accept service. Thereafter, Mr. Burstyn, College Health’s registered agent, likewise
purposefully evaded service when service was attempted at his homestead residence.
In addition, College Health has been served in this cause’s sister case styled Bank of NY
Mellon v. Rose, et. al., Case No. 2019-0024250-CA-01 (Fla. 11th Jud. Cir.) (“Related Case”), and
made an appearance through its counsel, Mr. Dean-Kluger on March 27, 2019. At that time, the
Plaintiff here (who is a party to the Related Case), had already moved to transfer the Related Case
to this division. That motion made it clear that College Health is named as a defendant in this case.
Any minimal diligence by Mr. Dean-Kluger would have quickly led him to determine that College
Health was a defendant in this action, that his and his client’s behavior caused Plaintiff to incur
needless expense and delay in having to obtain service by publication, and College Health would
have had more than sufficient time to respond to Plaintiff's pleadings before the entry of a default.
Instead, College Health did nothing, exerted no diligence whatsoever, and now asks this Court to
endorse is earlier conduct. This was all apparent on June 3, 2019 and it has not changed.
Page 10 of 12g. Appellate Review is Forthcoming
College Health has given notice to all parties and the Court that it is appealing the Court’s
June 3, 2019 order. Given that there is no basis for a rehearing in the first place, and further because
appellate review is forthcoming, this Court can let the Third District Court of Appeal decide.
VI. CONCLUSION
College Health cannot meet any of the elements it must demonstrate because: (1) it
intentionally refused to respond to this action after actively blinding itself to its existence and
interfering with service, (2) it is statutorily precluded from defending this action and, in any event,
has no meritorious defenses as its purported lien to the property arose after Plaintiffs mortgage
was recorded, (3) it failed to exert any diligence to vacate the default, (4) lacks meritorious
defenses, and (5) it already wasted its opportunity by appearing at an evidentiary hearing with no
evidence.
FOR THE REASONS SET FORTH ABOVE, the Plaintiff, Vincenzo DePau, respectfully
asks this Court to deny College Health II GP, Inc.’s Motion for Rehearing, and for all other relief
it deems just and fair.
Respectfully submitted,
July 5, 2019 By: /s/ Ruben Conitzer
Ruben Conitzer (Fla. Bar No. 100907)
rconitzer@careyrodriguez.com
cperez@careyrodriguez.com
David P. Milian (Fla. Bar No. 844421)
dmilian@careyrodriguez.com
service@careyrodriguez.com
CAREY RODRIGUEZ MILIAN GONYA, LLP
1395 Brickell Avenue, Suite 700
Page 1 of 12Miami, FL 33131
Telephone: (305) 372-7474
Facsimile: (305) 372-7475
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I CERTIFY that on July 5, 2019, a true and correct copy of the foregoing OPPOSITION TO
DEFENDANT COLLEGE HEALTH II GP, INC.’S MOTION FOR REHEARING was filed with the Court’s
E-Portal Service and thereby served on all counsel of record.
By: /s/ Ruben Conitzer
Ruben Conitzer (Fla. Bar No. 100907)
Page 12 of 12EXHIBIT A
JUNE 3, 2019 HEARING
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IN THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
CASE NO.: 2017-018931-CA-01
SECTION: CA 59
VINCENZO DEPAU,
Plaintiff,
vs.
MICHAEL STERN, et al.,
Defendants.
ae /
73 West Flagler Street
Miami, Florida 33130
June 3rd, 2019
Monday, 9:34 a.m.
Taken before the Honorable Jacqueline Hogan
Scola pursuant to a Notice of Hearing in the
above-styled cause.
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APPEARANCES:
ON BEHALF OF THE PLAINTIFF:
CARY, RODRIGUEZ, MILIAN AND GONYA, LLP
1395 Brickell Avenue, Suite 700
Miami, Florida, 33131
BY: RUBIN CONITZER, ESQ.
DAVID P. MILIAN, ESQ.
ON BEHALF OF DEFENDANT:
JESSE DEAN-KLUGER, P.A.
1550 Biscayne Boulevard, Second Floor
Miami, Florida 33132
BY: JESSE DEAN-KLUGER, ESQ.
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Thereupon, the following proceedings were had:
THE COURT: I just to tell everybody
that I'm yours until 11:15 and then I'm
turning in a pumpkin because I have to go do
an emergency dental appointment at Noon in
the Gables, so fun. Better me than you;
right?
We are here on a 2017-18931 CA 01,
Division 59. Everyone ready to proceed?
MR. DEAN-KLUGER: Yes, your honor.
THE COURT: Okay. Everyone is in the
right place.
Tell me who is here for the plaintiff
please.
MR. CONITZER: Rubin Conitzer, your
Honor, here for the plaintiff, Vincenzo
Depau. With me is David Milian.
THE COURT: Good morning to all of you.
MR. MILIAN: Good morning, Judge.
THE COURT: Yes, sir. Who is here for
the defense?
MR. DEAN-KLUGER: Good morning, your
Honor. Jesse Dean-Kluger on behalf of the
College Health II GP, Inc.
THE COURT: Okay. And you're excused
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for R.A.G. for this morning. When we
recess, you'll need to find out from them
what you need to do. You need to go to the
second floor and find out. But I took care
of you for this morning.
MR. DEAN-KLUGER: Okay. The jury duty I
thought was at --
THE COURT: It is in-R.A.G. but the
gentleman here on the second floor HERE is
the liaison and so he took care of it for me
and if you want to find out I think probably
you could just walk down there and talk to
him and find out what your directions are.
Okay?
MR. DEAN-KLUGER: All right. Thank you
your Honor.
THE COURT: You bet.
So we are here because back in May last
week it's now having become the 3rd of June,
the plaintiff filed a motion for default
final judgment against College Health II GP,
Inc. And in response to that,
Mr. Dean-Kluger on behalf of the entity
filed a motion to vacate the default.
Is that correct?
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MR. DEAN-KLUGER: That is correct, your
Honor.
THE COURT: Okay. And so I decided that
I thought it was probably appropriate to
have an evidentiary hearing to determine
whether or not the Court could, should grant
which party's motion. So I believe we are
here on an evidentiary hearing on the
defendant's verified motion to vacate the
court default. And my understanding is in
the event, in this case, the defendant
obligation to go forward, it's their burden
to demonstrate why they are right and why I
should grant their motion.
Is that correct?
MR. DEAN-KLUGER: Yes, your Honor.
THE COURT: Okay. So we're ready and so
let's go.
MR. DEAN-KLUGER: Thank you, your Honor.
Just as a preliminary matter, this was
noticed as an evidentiary hearing to quash
based on some conditions that were raised at
the hearing last Thursday. So really
what --
THE COURT: Can you do me a favor and
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walk a little closer to the podium. I mean
you can move the podium back a little
further if you want but that AC makes it
difficult to hear and anybody else who needs
to move around, feel free to do so.
MR. DEAN-KLUGER: Okay.
THE COURT: Yes, sir.
MR. DEAN-KLUGER: So there's really,
there's two motions here, kind of, motion to
quash as well as the motion to vacate,
Judge.
THE COURT: I only have a motion to
vacate the court default.
Is there a separate motion?
MR. DEAN-KLUGER: Well, the issue is
that they don't have good service and
it's -- which means --
THE COURT: Okay. Stop.
MR. DEAN-KLUGER: Okay.
THE COURT: Preliminary matter. There
are two motions. Where is the second
motion?
MR. DEAN-KLUGER: Right. Okay. So it's
more of an ore tenus motion that was made at
the hearing on Thursday that caused your
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Honor to set this for an evidentiary
hearing.
THE COURT: Well, I set it for an
evidentiary hearing because you filed a
verified motion to vacate your default
pursuant to 1500 --
MR. DEAN-KLUGER: Correct, your Honor.
THE COURT: -- and 1540. And so it was
my belief that that triggered a need for an
evidentiary hearing, but I only have one
motion, so all I want to do is hear the
second motion I should be hearing.
MR. DEAN-KLUGER: There is not a filed
additional motion, your Honor.
THE COURT: Okay. Go ahead.
MR. DEAN-KLUGER: But when they don't
have good service, it's void. It's not
voidable and so -~ and it's strictly
construed. And just on the face of their
own filings, they failed to properly serve
them by publication.
THE COURT: Okay. I think I already
made a finding last week that they had
demonstrated proper service pursuant to the
statute and therefore the burden shifts to
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you.
MR. DEAN-KLUGER: Your Honor --
THE COURT: Yes.
MR. DEAN-KLUGER: -- I'm not -- so from
an evidentiary perspective, I'm not
disputing anything in his affidavit or the
affidavit of service.
THE COURT: Okay.
MR. DEAN-KLUGER: Okay. But, 4912 of
the Florida Statutes which governs the
service by publication regarding the mailing
of notice of action says very clearly that
if the resident of any party to be served by
publication is stated in a sworn statement,
that's his affidavit, Mr. Conitzer's
affidavit, with more particularity than the
name of the state or country in which the
defendant resides, the clerk or judge shall
mail a copy of the notice by United States
mail with postage prepaid to each defendant.
Okay. Now, his affidavit in three
different places has addresses for my
client. The notice of action that was
prepared and filed by the plaintiff's
counsel which is given to the clerk to mail
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out, says, "Address unknown." So if we want
to talk about proper service or excusable
neglect, your Honor, it's clear on the face
of their own filings that they didn't comply
with the statute which is why we never got
notice. It wasn't mailed to us and they
have the addresses.
And if you wouldn't mind, your Honor,
I'll approach and hand you a copy of the
notice of action and a copy of the statute.
THE COURT: I'm looking at the statute.
MR. DEAN-KLUGER: Okay.
THE COURT: You don't have to give me a
copy of the statute. Give me what you're
referring to about the copy of the notice.
MR. DEAN-KLUGER: And his affidavit is
attached to their motion for entry of
default as exhibit --
THE COURT: Wait. Do you want me to
read this or do you want me to listen to
you? Because I can't do both. Sorry.
MR. DEAN-KLUGER: Sorry. Sorry, your
Honor. I apologize.
THE COURT: So please indicate to me
what you're referring to in the affirmative
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here in this two page notice of action.
MR. DEAN-KLUGER: Where it says address
unknown.
THE COURT: Where? On the second page?
MR. DEAN-KLUGER: On the first page,
your Honor. Right under the name --
THE COURT: Oh, I see. Under College
Health II GP, Inc., it says, "Address
unknown."
MR. DEAN-KLUGER: Correct.
THE COURT: Yes, go ahead.
MR. DEAN-KLUGER: Right. And if you
look at his affidavit is attached as Exhibit
1 to their motion for final judgment or
entry of judgment. And in paragraphs four
seven and 10, they list the specific address
for my client. Which means that in order to
have proper service and fully comply with
the statute, that notice would have had to
have been mailed by the clerk to my client.
It wasn't. Because he didn't provide the
address that he had which is clear from his
affidavit. That's what the statute requires
you to do. I mean, that's how you get
notice on somebody. You don't -- I mean to
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have true notice, you wouldn't expect them
to be looking in the back of a newspaper for
a lawsuit they don't know exists. But you
can satisfy the requirement by mailing them
copies of the notice and that's how you do
it. That's how you serve by publication.
THE COURT: Okay. Do you want to
respond to that Mr. Conitzer? I assume
you're handling it and not Mr. Milian.
MR. CONITZER: Sorry?
THE COURT: You're handling this?
Otherwise, I would have called on
Mr. Milian.
MR. CONITZER: No, no, I'll handle it,
Judge.
THE COURT: Okay.
MR. CONITZER: .The plaintiff's position
Judge, is that without looking at the
notice, the motion fails. The motion of
sufficiency of service fails.
Why does it fail? First of all, we
believe that it is proper service. But
before we ever get there, Judge, the
defendant, College Health, has waived that
argument, Judge. They have made a general
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appearance in this case. They have appeared
in person in this case.
THE COURT: Tell me precisely what that
means, they filed a general appearance; so
what does that mean?
MR. CONITZER: Well, your Honor, I have
three cases in front of me and I have a few
copies of each. I'll hand them to you. And
I'm reading from a Third DCA case called
Lennar Homes, Inc. And it is states very
clearly that a defendant who fails to
contest the sufficiency of service of
process at the inception of the case whether
by motion or responsive pleading has waived
this defense once he or she has entered the
general appearance.
In this case, the defendant filed a
motion to dismiss for other things; failure
to state a cause of action. But once Gabb,
the defendant in this particular case I'm
citing, made a general appearance without
raising the jurisdictional defenses, it
waived its right to assert these defenses at
a later stage in the proceedings.
If you would like, your Honor, I'll hand
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you both highlighted --
THE COURT: That's why a default was
granted because they failed at the inception
of the case to enter any kind of appearance
or file a responsive pleading on the motion.
MR. CONITZER: Yes, your Honor, and so
for that reason when they appeared they
should said, "We are moving to vacate. We
are making a limited appearance to contest
the sufficiency of service and to vacate the
default."
There is an another case, your Honor,
that I have and it may even be the Lennar
case where in fact it dealt with, if I'm
correct, a post default situation.
Here, Judge, in the case of Caldwell
versus Caldwell -- may I approach?
THE COURT: Uh-huh.
MR. CONITZER: In the case of Caldwell
versus Caldwell --
THE COURT: Cited at 921 So.2d, 759 --
MR. CONITZER: Yes, your Honor.
THE COURT: -- First DCA, 2006.
MR. CONITZER: And if Your Honor will
look at the second column, it's highlighted,
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it says, "After." In this case, it was
defective service of process unlike in our
case. Default judgment was entered against
him. The husband filed notice of appearance
without challenging sufficiency of process
or raising an issue with regards to
jurisdictional -- personal jurisdiction. By
entering a general appearance without
contesting personal jurisdiction, Caldwell
waived this defense. And so without having
to look at the notice of action and all the
other things surrounding service of process
in this case, we think that the two Third
DCA cases, again, Lennar Homes, Inc. versus
Gabb Construction Services, Inc., at 654
So.2d, 649, and the case, your Honor, I just
cited, Caldwell, make it very clear that
these defenses are waived unless immediately
raised even after the default has been
entered.
THE COURT: Is your position that filing
something that says verified motion to
vacate court default pursuant to 1500(d) and
1540(e) is not the same as filing a motion
to quash service of process?
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MR. CONITZER: No, Judge, because --—
THE COURT: I mean, is that your
position?
MR. CONITZER: Yes, Judge. And I think
it applies particularly well in this case
because not only did they file a general
appearance and that motion but also that
motion seeks to raise merits issues. It
doesn't only say --
THE COURT: And therefore what?
MR. CONITZER: Well, it in no way, that
motion doesn't attack the sufficiency of
service. It raises the factors of vacating
a default. I believe they're separate.
Because you could be properly served or
improperly served and a default be entered.
But they are different.
And now in this particular case, Judge,
when we go through the three elements to
vacate a default the defendant raised in its
motion, one of those elements is an
over-lapse with notice, albeit applied ina
more common-law type of setting. And so
they are able to argue their notice argument
through their motion. But they've waived
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the ability to contest sufficiency of
service for personal jurisdiction.
THE COURT: Okay. Hold on. Let me look
at something.
Okay. Do you want to respond that to
that, Mr. Dean-Kluger?
MR. DEAN-KLUGER: Sure, your Honor.
First off, within the motion we do
address notice issues and dispute that he
was properly served. It says, "Claims to
have effected substitute service, defendant
was not given any notice."
The other issue is that the service,
it's void. And even if -- I don't believe
that an objection to void service was
waived. But even if it was, if one of the
prongs of a motion to vacate a default is
excusable neglect, next then we know that
service wasn't good, so that means there was
no notice which is the excusable neglect
that would be needed to satisfy that prong
of a motion to vacate.
THE COURT: Well, I think that's what
we're here for today.
MR. DEAN-KLUGER: Sure.
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THE COURT: I don't know why we're
drawn, I just don't. I think we are here to
put on evidence and I think it's incumbent
upon you as the movant to put on evidence to
demonstrate why your relief should be
granted.
MR. DEAN-KLUGER: Sure.
THE COURT: Okay? So let's go.
MR. DEAN-KLUGER: The evidence that I
have, your Honor is the notice of claim.
It's a part of the--
THE COURT: It's what?
MR. DEAN-KLUGER: It's the notice of
claim, your Honor.
THE COURT: Notice of claim, that's it,
the --
MR. DEAN-KLUGER: Well, with respect to
the excusable neglect part. And with
respect to the meritorious defense part
there's a couple of issues here.
One is that they're all -- I'm not even
sure why they're so, you know, eager to have
a default against a single defendant when
there are many in this action.
There's also a companion case that's
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been transferred to in front of your Honor
where my client has a crossclaim against the
plaintiff in this action, Mr. Depau. So
entering a default here really only risks
the Court entering inconsistent verdicts and
it doesn't actually resolve the case pending
in front your Honor. This isn't a two-party
case. And so there's a crossclaim --
THE COURT: Oh, but I wish it were.
MR. DEAN-KLUGER: Your Honor, I've got
to tell you something. I would agree, I
would think it would be a little bit of a
different situation if to just enter a
judgment against my client with all this
stuff but it's not going to and what it's
going to do is create problems with
inconsistent verdicts.
The other side of the meritorious
defense then, again the only evidence I need
to put in is-their complaint, third amended
complaint. And by the way, your Honor, not
as if my client had ever been served with
any of the prior pleadings in this case.
And this is the first time anything was ever
attempted to be served on my client.
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So, you know, he says we're here at the
last minute. I say we're here at the very
beginning of the day. And in his complaint
they have allegations that the very note
that they're suing on are fraudulent.
Indeed the note itself it notarized by one
of the signatories which means it's void.
That is also a void instrument. My client
on the other hand has a 21 million-dollar
judgment against the titleholders of this
property. So that's a meritorious defense.
The evidence of that is in the record. All
of these are filings that are in the court's
docket. It's not a question of testimony.
The testimony -- and I see that they have
their process server here today. Other than
his characterization of my behavior, I don't
dispute anything they've said about service.
They did their diligent search. They made a
bunch of attempts and that's fine but it
didn't still didn't comply with the statute
and whether that's void service or excusable
neglect, that's the evidentiary issue that
they were prepared to put forth today. All
the other evidence is in the record. Those
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are their allegations. And that's
essentially what's argued in the motion to
vacate which is verified and that is the
evidence that I have to put forth. Now, on
Friday they sent a subpoena to me on behalf
of my client and they sent one to me
individually. As I've said, other than the
characterization of my behavior, I don't
have an issue with the fact that the
processor was there and the registered agent
wasn't.
With respect to Mr. Burstyn who would be
the principal of the entity, he's in Europe,
he's been there for two weeks but he's due
back sometime this week but they -- I got a
subpoena on Friday afternoon. But he's
verified this motion. So with respect to
the meritorious defense issue and excusable
neglect, I think it's already been put in.
THE COURT: Okay. So would you like to
respond briefly to his argument?
So you're resting on the statutory
notice of the claim argument, notice of
action?
MR. DEAN-KLUGER: Well, and the verified
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motion. So if your Honor is going to rule
that the service issue was waived, then I
would certainly put forth the notice of
claim with respect to the excusable --
THE COURT: I'm not going to tell you
how to conduct your arguments.
MR. DEAN-KLUGER: Well, no, no. Your
Honor, I think service is void. But I'm
also saying that the fact that they didn't
comply with the statute is evidence of
excusable neglect because we were not given
notice of the claim. I mean, that's the
whole purpose of that section of the
statute.
THE COURT: Okay. All right. So
briefly.
MR. CONITZER: Well, given that the
defendant rests, your Honor, we would ask
the Court to rule on its failure to reach
its burden because we believe that.the
burden of evidence is on the defendant to
show the elements to vacate which there are
three elements, no notice, meritorious
defense and reasonable diligence.
THE COURT: Well, when you say, "No
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notice," your position is they had actual
notice, not only sufficient notice under the
statute, but actual notice since
Mr. Dean-Kluger who has not contested the
fact that he had an interaction with the
process server, he says the process server
characterized it inaccurately, but he does
not dispute that those, on that day, that
contact.
MR. CONITZER: Yes, Judge, we could
begin there. We could begin there. When we
talk about: actual service, notice, and
statutory service, they walk together
because what happened on September 25th,
last year, our process server, Mr. Mas who
is present in the courtroom today, appeared
during statutory registered agent hours at
College Health's registered agent address.
When he appeared there, Mr. Dean-Kluger was
there and Mr. Mas identified. himself and he
informed Mr. Dean-Kluger that he was there
to effect service upon Mr. Burstyn. And we
can ask the process server if we get to it
whether he specifically stated that it was
for College Health, but I'm rather confident
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he specifically asked for Mr. Burstyn and I
believe his affidavit says so. That is
notice right there. College Health had a
duty to maintain a registered agent at that
address or an employee at that address who
could accept service at that time. That is
Mr. Dean-Kluger's law firm. At the time
that this happened Mr. Dean-Kluger was also
representing Mr. Burstyn in a separate
lawsuit. And so there's no doubt that he
knew who he was. There's also no doubt that
this was the registered agent address. And
there's no doubt that Mr. Mas, a licensed
process server, attempted to effectuate
service there, did in fact verbalize his
reason for being there and then was removed
from the premises. That is actual notice,
your Honor, and given the fact that there
was in essence an evasion of service there,
we would contend initially that that in and
of itself is sufficient to meet the
statutory elements of service. They are at
registered agent address, during registered
agent hours. You have an attorney there who
has represented in this court on behalf of
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the registered agent and he sent him away.
I have not briefed the issue for this
particular hearing, Judge, but generally
speaking, I'm aware of case law that says
you can't just turn your back to a process
server and act as if you were not served.
Thereafter and this would go more to the
notice element under the elements in moving
to vacate unless we would not contend that
this constitutes service from a statutory
prospective, but thereafter, thereafter,
Judge -- give me just one moment --
thereafter what happened was a second
process server attempted to effect service.
THE COURT: Carmona?
MR. CONITZER: Yes, Ms. Marisol Carmona.
Now, she went all across town, 801 Brickell
Avenue which was Mr. Burstyn's address on
the Florida Bar website, 701 Brickell
Avenue, maybe she was mistaken and went to
two places. Then she went to an apartment
in Midtown. And then final she went to
Mr.--
THE COURT: I think her affidavit says
801 Brickell Avenue.
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MR. CONITZER: Yeah and then the one
below it, 10 minutes later she went to 701
Brickell.
THE COURT: 701 Brickell.
MR. CONITZER: So again, I'm not exactly
sure. But the point being, when you get to
the last three entries, you have -- last
four entries, you have really her talking to
Mr. Burstyn's girlfriend's mother who then
called the girlfriend.
THE COURT: That's Ms. Soto.
MR. CONITZER: -- who then refused to
provide an address, yes. Then she went to
Mr. Burstyn's Homestead address. It's a
very large property. She spoke to a woman
on the intercom, asked for Mr. Burstyn, said
he wasn't there. When informed it was about
effecting service, I would guess, it says,
“When I mentioned the paper, she stopped
communicating." Then she attempts to
re-serve again. No one answers. And then
finally she concludes, "Actively avoiding
service. Please advise how to proceed."
So, you know, again there may be an
argument to be made that this would be
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statutory service if Ms. Carmona had left
the papers there because there seems to be
no intentional interference although active
avoidance is for sure, so here this again
strongly undercuts their no notice argument.
The record here is filled with attempts at
notice. And what makes it from an
attorney's perspective frankly just a little
bit annoying is that you think yourself
you're going to serve a domestic
corporation, right, it should be the easiest
thing in the world. You send a process
server to their registered agent address,
right and it should be done, you know, and
instead it was very difficult active
avoidance of service. And so we would argue
that the statutory service element was met
in Mr. Dean-Kluger's office first again by
publication and that as far as their notice
from a common-law and just common sense
perspective they have had adequate notice of
this case for a long time.
The second element that they need to
demonstrate is a meritorious defense. They
have raised no meritorious defenses at all.
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They've broadly alluded to a crossclaim in a
separate action. They have alluded to the
existence of a judgment but have not
identified that judgment, your Honor, at
all. We were left to do our own digging as
to what their meritorious defense could
conceivably be. We identified a judgment
entered in 2009. But we also identified
that four properties worth after mortgages
and the settlement calculations which are of
record in the separate case are worth about
$7 million. And the judgment was for 5.3.
Again, Mr. Dean-Kluger mentioned a different
judgment. But he hasn't identified it. He
hasn't asked to enter it in evidence. He's
made a boilerplate contention as to its
existence and has not produced it at all.
There is no meritorious defense here, Judge,
because the only judgment we've identified
is later in time to our recorded mortgage.
The third reasonable diligence in
vacating the default, your Honor, we think
this really ties to the first element. And
we would incorporate our arguments from the
first element to show that given that
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there's been actual notice since last
September there's really been no diligence
at all.
THE COURT: Okay. This is what I have
to say. And this is how I find. I accept
since there was no contention otherwise that
the SunBiz recording of the entity lists
Mr. Dean-Kluger's office as its place of
business. This Mr. Burstyn as the
registered agent. I accept the affidavit of
the process server and his employee
Ms. Carmona that first he went back in
September of 2018 and had communication
regarding Mr. Burstyn's whereabouts and the
representative of his entity that being
Mr. Burstyn at that location. That the
process server was adequately concerned
about his own safety. Whether
Mr. Dean-Kluger thought that he was being
threatening, I accept that the process
server reasonably believed that he could not
and should not go back to that location.
That would be futile.
I further accept that numerous attempts
were made as set out in Ms. Carmona's
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affidavit to locate Mr. Burstyn and that
service was evaded by Mr. Burstyn.
I also find that the entity does not
have the legal ability to represent or
defend the instance action because it did
not comply with the statute by failing to
have someone at the registered location
whether it was Mr. Burstyn or someone on his
behalf including Shari Jakobowitz, I believe
her name of the VP listed on SunBiz. She
also could not be located after reasonable
efforts by the process server and his
employee. So either there was actual notice
for this entity through Mr. Dean-Kluger or
this entity does not exist and is legally
unable to defend itself.
I further fund that the motion filed is
procedurally defective. I find that it is
also inadequate. The meritorious defenses
are conclusory in barebones.
I further find that noth
Preview
Filing # 92116164 E-Filed 07/05/2019 10:07:45 AM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA VINCENZO DEPAU, Plaintiff, CIVIL DIVISION ve CASE NO. 2017-018931-CA-01 MICHAEL STERN, et. al. Defendants. OPPOSITION TO DEFENDANT COLLEGE HEALTH II GP, INC.’S MOTION TO REHEARING The Plaintiff Vincenzo DePau hereby complies with this Court’s June 26, 2019 sua sponte Order to explain why Defendant College Health II G.P., Inc.’s (“College Health”) Motion for Rehearing should be denied. I. THE MOTION SHOULD BE STRICKEN As discussed below, College Health has presented no evidence that it now complies with its registered agent obligations or that it paid the appropriate penalty for its failure to do so. Fla. Stat. § 607.0501(5). Thus, it is still statutorily precluded from taking action in this court and its motions for rehearing should be stricken. Il. INTRODUCTION AND SUMMARY The Court already allotted a morning for evidentiary proceedings so College Health could explain why the default against it should be vacated. Demonstrating its full contempt for the Court’s limited resources, College Health didn’t bother to present a single shred of evidence, whether through live witnesses or otherwise. To the contrary, College Health’s lawyer, who is also a fact witness because he threatened a process server and made him fear for his life, admitted he did not object to the process server’s sworn attempts at service. College Health’s registered agent Page 1 of 12and officer ignored a subpoena to appear to the hearing altogether. To the contrary, the Plaintiff fully respected the Court’s sua sponte initiative to allow a full vetting of College Health’s request. The Plaintiff's lawyers appeared and so did his process server, who was ready to present live testimony subject to cross examination (tellingly, College Health chose not to elicit any testimony from the process server). Now, College Health wants the Court to allocate more of its scarce resources away from worthy litigants so it can rerun this charade. In support, it submitted affidavits directly rebutting the representations it already made to this tribunal.’ But these affidavits and their moving papers do nothing to address College Health’ failure to comply with the registered agent act, that its lawyer threatened an officer of the court, present no relevant facts, its failure to file a responsive pleading, and present no new facts to support a rehearing. Finally, College Health’s papers don’t present any actual defense, meritorious or otherwise, to the allegations in the Plaintiff's complaint. Ill. RELEVANT FACTS The relevant facts are set out in more detail in the Plaintiff's June 2, 2019 Opposition to Defendant College Health’s Motion to Vacate Default. While familiarity with those facts is likely, they are summarized and supplemented here. a. Service of Process Initially, the Plaintiff's process server, Christopher Mas, arrived at College Health’s principal office and registered agent address during statutorily prescribed hours where he was met by College Health’s lawyer, Jesse Dean-Kluger.? See June 3, 2019 Transcript of Record ' In addition, the affidavits were not served with College Health’s first motion for rehearing, thus violating Fla. R. Civ. P. 1.530(c) (“When a motion for a new trial is based on affidavits, the affidavits shall be served with the motion.”). ? Given than Mr. Dean-Kluger is an attorney for both College Health and its registered agent, Mr. Mas’s interactions with Mr. Dean-Kluger also constitute sufficient service. Page 2 of 12(hereinafter “Tr.”) at 22, a copy of which is attached as Exhibit A. When Mr. Mas asked for College Health’s registered agent, i.e., Samuel Burstyn, Mr. Dean-Kluger repeatedly and angrily yelled at Mr. Mas and informed him that Mr. Burstyn was not present, did not work at that location, and threatened to call the police. Mr. Dean-Kluger’s behavior was so intense that Mr. Mas felt uncomfortable, feared for his life, and felt unable to return for safety concerns. Mr. Mas’s’ Return of Non-Service which sets forth the events that took place in Mr. Dean-Kluger’s office is attached as Exhibit B. In addition, on June 3, 2019, Mr. Dean-Kluger informed the Court that he did dispute the accuracy of events set forth in Mr. Mas’s affidavit. Tr. at 8:4-7; 19:15-20; 20:7-11. While Mr. Burstyn filed an affidavit claiming he does maintain College Health’s listed registered agent address, he tellingly cannot affirm that he was present there during statutorily prescribed hours. Thereafter, the Plaintiff unsuccessfully tried to serve Mr. Burstyn, a disbarred former lawyer and registered agent and officer of College Health, at various other locations until it was determined that College Health’s officers were actively evading service. See Second Return of Non-Service attached as Exhibit C; see also Tr. at 24, 28-29. Finally, service was effectuated by publication and, when no answer was filed, a default entered on April 29, 2019. b. College Health’s Effort to Vacate the Default On May 28, 2019, College Health moved to vacate the default entered against it. In response, the Court allotted a two-hour evidentiary hearing so College Health could attempt to meet its evidentiary burden in vacating the default. At the hearing, College Health was represented by counsel but chose not to present any evidence whatsoever. Now, on the basis of contradictory affidavits that, in large part, spew out mere legal conclusions, it asks for a do-over. Page 3 of 12IV. LEGAL STANDARD College Health doesn’t contest that, to set aside a default, it must establish each of the following: (1) that its failure to file a timely responsive pleading or other failure was the result of excusable neglect; (2) that it has a meritorious defense; and (3) that it reasonably diligent in seeking to vacate the default. Nothing has changed since the time it filed its initial motion or when the first evidentiary hearing was held. College Health still cannot meet any of these elements, let alone all of them. The standard of review on a denial of a motion for rehearing is abuse of discretion. Beacon Hill Homeowners Assoc., Inc. v. Colfin AH-Fla. 7, LLC, 221 So. 3d 710, 712 (Fla. 3d-DCA 2017) (affirming denial of motion for rehearing); but see Rachid v. Perez, 26 So. 3d 70, (Fla. 34 DCA 2010) (“Because her appeal is directed to the order denying her motion for rehearing ... the standard of review is gross abuse of discretion”) (emphasis added) (other portions receded from in DePrince y. Starboard Cruise Serv’s., Inc., --- So. 3d ---, 2018 WL 3636849 (Fla. 3d DCA Aug. 1, 2018). Vv. ARGUMENTS a. College Health Waived Its Ability to Contest Service College Health, which has been properly served by publication, made a general appearance in this case, has not moved to set aside or quash service but claims that it is actively raising merits defenses. College Health’s general notice of appearance, through its counsel Jesse Dean-Kluger, is attached as Exhibit D, and Defendant’s initial motion to vacate the default did nothing to question the sufficiency of service at all. Accordingly, any objections to sufficiency of service have been waived. See Parra v. Raskin, 647 So. 2d 1010, 1011 (Fla. 3d DCA 1995) (failure to raise insufficient service of Page 4 of 12process defense at inception of case, in either motion or responsive pleading, constitutes waiver of that defense); see also Lennar Homes, Inc. v. Gabb Const. Serv’s, Inc., 654 So. 2d 649, 651 (Fla. 3d DCA 1995) (“A defendant who fails to contest the sufficiency of service of process at the inception of the case, whether by motion or responsive pleading, has waived this defense once he or she entered a general appearance”). Nothing in College Health’s request for a rehearing can change the fact that it can no longer contest service. Thus, the lone issue was whether College Health can sufficiently demonstrate the default entered against it should be vacated. Interestingly, it had an opportunity to make such a showing but refused to submit any evidence whatsoever. b. Even If College Health Could Contest Sufficiency of Service, Which It Cannot, Service Was Proper Even if College Health could contest the sufficiency of service, which it cannot, service was proper because its de facto registered agent intentionally refused service, because it otherwise intentionally evaded service, and since College Health did not exist under the Florida Business Corporations Act for failure to properly maintain a registered agent, there was no address that could have been listed on the Notice of Action (indeed, given that Plaintiff's process servers were rebuked everywhere they went, it would have been illogical to list one of those addresses on the notice). i. Service Was Effectuated through Mr. Dean-Kluger Fla. Stat. § 48.081(3)(a) provides that “if service cannot be made on a registered agent because of failure to comply with s. 48.091, service of process shall be permitted on any employee at the corporation’s principal place of business or on any employee of the registered agent.” Page 5 of 12As noted in the June 3, 2019 evidentiary hearing on College Health’s Motion to Vacate Default, College Health does not dispute Plaintiff’s allegations related to the September 25, 2018 service and, in turn, alludes to its own non-compliance with Fla. Stat. § 48.091, i.e., the registered agent statute. See Tr. at 19 (“Other than his characterization of my behavior, I don’t dispute anything they’ve said about service. They did their diligent search.”). Further, in the June 3, 2019 hearing, Judge Hogan Scola agreed with Plaintiff and found that College Health “did not comply with the statute by failing to have someone at the registered agent location” and as a result found “that [it] does not have the legal ability to represent or defend” this action at all. See Tr. at 29. Mr. Dean-Kluger has acted as Mr. Burstyn’s personal attorney since long before his encounter with Mr. Mas. And he is also counsel for College Health. See Kalb v. Sail Condo. Ass’n., Inc., 112 So. 3d 674, 675 (Fla. 3d DCA 2013) (Because “service on the registered agent’s employee was proper ... under the plain language of the statute, service on the employee was valid” and reversing order vacating judgment). Accordingly, since College Health snubbed the registered agent requirements, Mr. Dean-Kluger was a proper person to accept service. Nonetheless, Mr. Dean-Kluger, a member of the Florida bar, reacted aggressively when he was met by Mr. Mas and told him to get out of the office even though he was aware Mr. Mas was a court officer attempting to effect service. ii. After Months of Evasion, Service was Properly Effectuated by Publication College Health’s evasionary tactics forced the Plaintiff to incur the needless expense of obtaining service through publication under Fla. Stat. Ch. 49. Accordingly, a notice of action in the form prescribed by Fla. Stat. § 49.08 was published. College Health now absurdly claims Page 6 of 12that this notice is deficient of action because it does not contain College Health’s address. This argument fails for two compelling reasons. First, the statute does not require that an address be listed. See Fla. Stat. § 49.08 (setting forth the exclusive contents required in a notice of action). Copies of Fla. Stat. § 49.08 and the Notice of Action published in this case are attached as Composite Exhibit E. Second, even assuming that a notice of action needs to have an address (which it does not, see id.), because College Health refused to comply with the registered agent act, the Plaintiff had no idea as to which address he should conceivably list. c. College Health Had Actual Notice of Service and There Is No Excusable Neglect College Health had actual notice of this lawsuit since September 25, 2019 when Mr. Dean- Kluger intentionally refused to accept service and threw a licensed process server out of his office and onto the streets. Mr. Dean-Kluger took these actions even after the process server specifically asked for Mr. Burstyn, College Health’s registered agent who Mr. Dean-Kluger had been representing for nearly a year at that point in one matter alone. See Burstyn v. G.L. S.L. Signature Homes, LLC, et. al., Case No. 2018-000216-CA-01 (11th Jud. Cir.) (Mr. Dean-Kluger counsel of record for Mr. Burstyn since January 3, 2018). Notably, on June 3, 2019, when Mr. Dean-Kluger would have been subject to cross- examination, he never attempted to otherwise scrutinize the process server’s characterization of events, including that he, i.e., Mr. Dean-Kluger, “repeatedly yelled at me [the process server] that Samuel I. Burstyn is not located here” or that he “stated yet again agitated and angrily that the Registered Agent does not work here.” Instead, Mr. Dean-Kluger conceded that the substantive statements in the process server’s return of non-service were accurate by stating: I’m not — so from an evidentiary perspective, I’m not disputing Page 7 of 12anything in this affidavit or the affidavit of service. Tr. 8:4-7. I see that they have their process server here today. Other than his characterization of my behavior, I don’t dispute anything they’ve said about service. They did their diligent search. They made a bunch of attempts ... Tr. 19:15-20 (emphasis added). [O]ther than the characterization of my behavior, I don’t have an issue that the fact that the processor was there and the registered agent wasn’t. Tr. 20:7-11 (emphasis added). Then, on June 26, 2019 Mr. Dean-Kluger submitted an affidavit, which College Health hopes will lift its chances of getting a rehearing. But this affidavit stands in stark contrast to the statements made by counsel earlier and should be disregarded, especially because he won’t be subject to cross examination until the Court wastes valuable resources in setting yet another evidentiary hearing.* Those contradicting statements include: On September 25, 2019, a process server came to Mr. Burstyn’s office, during the lunch hour, at approximately 11:30am. I heard the gentleman enter the office and I approached him. He asked for Mr. Burstyn. I told the process server that Mr. Burstyn was not in at that moment. Thereafter the process server left the office. Dean-Kluger Aff. At 4. I asked him why he was still there and asked him to leave. He refused to step out of the office. Eventually [sic], he left. Dean- Kluger Aff. At 96 I never told the process server that Mr. Burstyn did not maintain an office here, was “not located here”, or “does not work here.” Dean- 3 This only leaves the parties to wonder if College Health will comply with subpoenas or present any evidence at all, should the court choose to hold another hearing. Page 8 of 12Kluger Aff. At 7. Indeed, after refusing to present evidence at a two-hour evidentiary hearing, an affidavit with direct contradictions to earlier representations of counsel should be given little, if any, weight. d. College Health May Still Not Defend This Action College Health has presented no evidence that it now complies with its registered agent obligations or that it paid the appropriate penalty to the Department of State. Fla. Stat. § 607.0501(5) even though the Court has already ruled it does not comply: The Court: I also find that the entity [College Health] does not have the legal ability to represent or defend the instance [sic] action because it did not comply with the statute by failing to have someone at the registered location. Tr. at p.29:3-7; see also Fla. Stat. 607.0501(5) (corporation may not maintain any action until it pays to the Department a penalty). e. College Health Has Not Shown Any Meritorious Defense It is College Health’s burden to demonstrate a meritorious defense to Plaintiff’s claims before the default can be set aside. Boilerplate assertions of defenses, however, constitute mere legal conclusions not entitled to weight. College Health’s motion simply claims “[i]t is Defendant’s position that its claims against the property ... have priority.” This was not sufficient to demonstrate a meritorious defense before the June 3, 2019 hearing and it is not sufficient now. Indeed, even now, rather than actually explain its purported defenses, College Health merely refers the Court to a crossclaim in a separate lawsuit by College Health against DePau. But the Court shouldn’t have to pilfer through filings in other cases to decide whether it has merit — assuming it’s relevant at all. And mere untested allegations in unrelated litigation don’t constitute a defense. Page 9 of 12College Health’s purported defense is also not meritorious because its purported lien on the property in this case arises out of a judgment that was recorded after the Plaintiff's mortgage and its cross claim is further subject to dismissal due to its failure to comply with Fla. Stat. § 607.0501. f. College Health Was Not Reasonably Diligent In Seeking to Vacate College Health was also not diligent in vacating the default at issue. First, as explained above, College Health has been on notice of this lawsuit since last year when College Health’s lawyer, Mr. Dean-Kluger, was personally confronted at the registered agent address by a process server attempting to effectuate service. Rather than accept service or inquire, Mr. Dean-Kluger, and thus Defendant, purported to gauge their own eyes out by threatening the process server and refusing to accept service. Thereafter, Mr. Burstyn, College Health’s registered agent, likewise purposefully evaded service when service was attempted at his homestead residence. In addition, College Health has been served in this cause’s sister case styled Bank of NY Mellon v. Rose, et. al., Case No. 2019-0024250-CA-01 (Fla. 11th Jud. Cir.) (“Related Case”), and made an appearance through its counsel, Mr. Dean-Kluger on March 27, 2019. At that time, the Plaintiff here (who is a party to the Related Case), had already moved to transfer the Related Case to this division. That motion made it clear that College Health is named as a defendant in this case. Any minimal diligence by Mr. Dean-Kluger would have quickly led him to determine that College Health was a defendant in this action, that his and his client’s behavior caused Plaintiff to incur needless expense and delay in having to obtain service by publication, and College Health would have had more than sufficient time to respond to Plaintiff's pleadings before the entry of a default. Instead, College Health did nothing, exerted no diligence whatsoever, and now asks this Court to endorse is earlier conduct. This was all apparent on June 3, 2019 and it has not changed. Page 10 of 12g. Appellate Review is Forthcoming College Health has given notice to all parties and the Court that it is appealing the Court’s June 3, 2019 order. Given that there is no basis for a rehearing in the first place, and further because appellate review is forthcoming, this Court can let the Third District Court of Appeal decide. VI. CONCLUSION College Health cannot meet any of the elements it must demonstrate because: (1) it intentionally refused to respond to this action after actively blinding itself to its existence and interfering with service, (2) it is statutorily precluded from defending this action and, in any event, has no meritorious defenses as its purported lien to the property arose after Plaintiffs mortgage was recorded, (3) it failed to exert any diligence to vacate the default, (4) lacks meritorious defenses, and (5) it already wasted its opportunity by appearing at an evidentiary hearing with no evidence. FOR THE REASONS SET FORTH ABOVE, the Plaintiff, Vincenzo DePau, respectfully asks this Court to deny College Health II GP, Inc.’s Motion for Rehearing, and for all other relief it deems just and fair. Respectfully submitted, July 5, 2019 By: /s/ Ruben Conitzer Ruben Conitzer (Fla. Bar No. 100907) rconitzer@careyrodriguez.com cperez@careyrodriguez.com David P. Milian (Fla. Bar No. 844421) dmilian@careyrodriguez.com service@careyrodriguez.com CAREY RODRIGUEZ MILIAN GONYA, LLP 1395 Brickell Avenue, Suite 700 Page 1 of 12Miami, FL 33131 Telephone: (305) 372-7474 Facsimile: (305) 372-7475 Attorneys for Plaintiff CERTIFICATE OF SERVICE I CERTIFY that on July 5, 2019, a true and correct copy of the foregoing OPPOSITION TO DEFENDANT COLLEGE HEALTH II GP, INC.’S MOTION FOR REHEARING was filed with the Court’s E-Portal Service and thereby served on all counsel of record. By: /s/ Ruben Conitzer Ruben Conitzer (Fla. Bar No. 100907) Page 12 of 12EXHIBIT A JUNE 3, 2019 HEARING TRANSCRIPT10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO.: 2017-018931-CA-01 SECTION: CA 59 VINCENZO DEPAU, Plaintiff, vs. MICHAEL STERN, et al., Defendants. ae / 73 West Flagler Street Miami, Florida 33130 June 3rd, 2019 Monday, 9:34 a.m. Taken before the Honorable Jacqueline Hogan Scola pursuant to a Notice of Hearing in the above-styled cause. SS JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: ON BEHALF OF THE PLAINTIFF: CARY, RODRIGUEZ, MILIAN AND GONYA, LLP 1395 Brickell Avenue, Suite 700 Miami, Florida, 33131 BY: RUBIN CONITZER, ESQ. DAVID P. MILIAN, ESQ. ON BEHALF OF DEFENDANT: JESSE DEAN-KLUGER, P.A. 1550 Biscayne Boulevard, Second Floor Miami, Florida 33132 BY: JESSE DEAN-KLUGER, ESQ. e- JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Thereupon, the following proceedings were had: THE COURT: I just to tell everybody that I'm yours until 11:15 and then I'm turning in a pumpkin because I have to go do an emergency dental appointment at Noon in the Gables, so fun. Better me than you; right? We are here on a 2017-18931 CA 01, Division 59. Everyone ready to proceed? MR. DEAN-KLUGER: Yes, your honor. THE COURT: Okay. Everyone is in the right place. Tell me who is here for the plaintiff please. MR. CONITZER: Rubin Conitzer, your Honor, here for the plaintiff, Vincenzo Depau. With me is David Milian. THE COURT: Good morning to all of you. MR. MILIAN: Good morning, Judge. THE COURT: Yes, sir. Who is here for the defense? MR. DEAN-KLUGER: Good morning, your Honor. Jesse Dean-Kluger on behalf of the College Health II GP, Inc. THE COURT: Okay. And you're excused S JEANNIE REPORTING (305) 577-170510 a1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for R.A.G. for this morning. When we recess, you'll need to find out from them what you need to do. You need to go to the second floor and find out. But I took care of you for this morning. MR. DEAN-KLUGER: Okay. The jury duty I thought was at -- THE COURT: It is in-R.A.G. but the gentleman here on the second floor HERE is the liaison and so he took care of it for me and if you want to find out I think probably you could just walk down there and talk to him and find out what your directions are. Okay? MR. DEAN-KLUGER: All right. Thank you your Honor. THE COURT: You bet. So we are here because back in May last week it's now having become the 3rd of June, the plaintiff filed a motion for default final judgment against College Health II GP, Inc. And in response to that, Mr. Dean-Kluger on behalf of the entity filed a motion to vacate the default. Is that correct? = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. DEAN-KLUGER: That is correct, your Honor. THE COURT: Okay. And so I decided that I thought it was probably appropriate to have an evidentiary hearing to determine whether or not the Court could, should grant which party's motion. So I believe we are here on an evidentiary hearing on the defendant's verified motion to vacate the court default. And my understanding is in the event, in this case, the defendant obligation to go forward, it's their burden to demonstrate why they are right and why I should grant their motion. Is that correct? MR. DEAN-KLUGER: Yes, your Honor. THE COURT: Okay. So we're ready and so let's go. MR. DEAN-KLUGER: Thank you, your Honor. Just as a preliminary matter, this was noticed as an evidentiary hearing to quash based on some conditions that were raised at the hearing last Thursday. So really what -- THE COURT: Can you do me a favor and S JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 walk a little closer to the podium. I mean you can move the podium back a little further if you want but that AC makes it difficult to hear and anybody else who needs to move around, feel free to do so. MR. DEAN-KLUGER: Okay. THE COURT: Yes, sir. MR. DEAN-KLUGER: So there's really, there's two motions here, kind of, motion to quash as well as the motion to vacate, Judge. THE COURT: I only have a motion to vacate the court default. Is there a separate motion? MR. DEAN-KLUGER: Well, the issue is that they don't have good service and it's -- which means -- THE COURT: Okay. Stop. MR. DEAN-KLUGER: Okay. THE COURT: Preliminary matter. There are two motions. Where is the second motion? MR. DEAN-KLUGER: Right. Okay. So it's more of an ore tenus motion that was made at the hearing on Thursday that caused your S JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor to set this for an evidentiary hearing. THE COURT: Well, I set it for an evidentiary hearing because you filed a verified motion to vacate your default pursuant to 1500 -- MR. DEAN-KLUGER: Correct, your Honor. THE COURT: -- and 1540. And so it was my belief that that triggered a need for an evidentiary hearing, but I only have one motion, so all I want to do is hear the second motion I should be hearing. MR. DEAN-KLUGER: There is not a filed additional motion, your Honor. THE COURT: Okay. Go ahead. MR. DEAN-KLUGER: But when they don't have good service, it's void. It's not voidable and so -~ and it's strictly construed. And just on the face of their own filings, they failed to properly serve them by publication. THE COURT: Okay. I think I already made a finding last week that they had demonstrated proper service pursuant to the statute and therefore the burden shifts to = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you. MR. DEAN-KLUGER: Your Honor -- THE COURT: Yes. MR. DEAN-KLUGER: -- I'm not -- so from an evidentiary perspective, I'm not disputing anything in his affidavit or the affidavit of service. THE COURT: Okay. MR. DEAN-KLUGER: Okay. But, 4912 of the Florida Statutes which governs the service by publication regarding the mailing of notice of action says very clearly that if the resident of any party to be served by publication is stated in a sworn statement, that's his affidavit, Mr. Conitzer's affidavit, with more particularity than the name of the state or country in which the defendant resides, the clerk or judge shall mail a copy of the notice by United States mail with postage prepaid to each defendant. Okay. Now, his affidavit in three different places has addresses for my client. The notice of action that was prepared and filed by the plaintiff's counsel which is given to the clerk to mail = JEANNIE REPORTING (305) 577-170510 ai 12 13 14 15 16 17 18 19 20 21 22 23 24 25 out, says, "Address unknown." So if we want to talk about proper service or excusable neglect, your Honor, it's clear on the face of their own filings that they didn't comply with the statute which is why we never got notice. It wasn't mailed to us and they have the addresses. And if you wouldn't mind, your Honor, I'll approach and hand you a copy of the notice of action and a copy of the statute. THE COURT: I'm looking at the statute. MR. DEAN-KLUGER: Okay. THE COURT: You don't have to give me a copy of the statute. Give me what you're referring to about the copy of the notice. MR. DEAN-KLUGER: And his affidavit is attached to their motion for entry of default as exhibit -- THE COURT: Wait. Do you want me to read this or do you want me to listen to you? Because I can't do both. Sorry. MR. DEAN-KLUGER: Sorry. Sorry, your Honor. I apologize. THE COURT: So please indicate to me what you're referring to in the affirmative eS JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 here in this two page notice of action. MR. DEAN-KLUGER: Where it says address unknown. THE COURT: Where? On the second page? MR. DEAN-KLUGER: On the first page, your Honor. Right under the name -- THE COURT: Oh, I see. Under College Health II GP, Inc., it says, "Address unknown." MR. DEAN-KLUGER: Correct. THE COURT: Yes, go ahead. MR. DEAN-KLUGER: Right. And if you look at his affidavit is attached as Exhibit 1 to their motion for final judgment or entry of judgment. And in paragraphs four seven and 10, they list the specific address for my client. Which means that in order to have proper service and fully comply with the statute, that notice would have had to have been mailed by the clerk to my client. It wasn't. Because he didn't provide the address that he had which is clear from his affidavit. That's what the statute requires you to do. I mean, that's how you get notice on somebody. You don't -- I mean to = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 have true notice, you wouldn't expect them to be looking in the back of a newspaper for a lawsuit they don't know exists. But you can satisfy the requirement by mailing them copies of the notice and that's how you do it. That's how you serve by publication. THE COURT: Okay. Do you want to respond to that Mr. Conitzer? I assume you're handling it and not Mr. Milian. MR. CONITZER: Sorry? THE COURT: You're handling this? Otherwise, I would have called on Mr. Milian. MR. CONITZER: No, no, I'll handle it, Judge. THE COURT: Okay. MR. CONITZER: .The plaintiff's position Judge, is that without looking at the notice, the motion fails. The motion of sufficiency of service fails. Why does it fail? First of all, we believe that it is proper service. But before we ever get there, Judge, the defendant, College Health, has waived that argument, Judge. They have made a general a JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12 appearance in this case. They have appeared in person in this case. THE COURT: Tell me precisely what that means, they filed a general appearance; so what does that mean? MR. CONITZER: Well, your Honor, I have three cases in front of me and I have a few copies of each. I'll hand them to you. And I'm reading from a Third DCA case called Lennar Homes, Inc. And it is states very clearly that a defendant who fails to contest the sufficiency of service of process at the inception of the case whether by motion or responsive pleading has waived this defense once he or she has entered the general appearance. In this case, the defendant filed a motion to dismiss for other things; failure to state a cause of action. But once Gabb, the defendant in this particular case I'm citing, made a general appearance without raising the jurisdictional defenses, it waived its right to assert these defenses at a later stage in the proceedings. If you would like, your Honor, I'll hand a JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 you both highlighted -- THE COURT: That's why a default was granted because they failed at the inception of the case to enter any kind of appearance or file a responsive pleading on the motion. MR. CONITZER: Yes, your Honor, and so for that reason when they appeared they should said, "We are moving to vacate. We are making a limited appearance to contest the sufficiency of service and to vacate the default." There is an another case, your Honor, that I have and it may even be the Lennar case where in fact it dealt with, if I'm correct, a post default situation. Here, Judge, in the case of Caldwell versus Caldwell -- may I approach? THE COURT: Uh-huh. MR. CONITZER: In the case of Caldwell versus Caldwell -- THE COURT: Cited at 921 So.2d, 759 -- MR. CONITZER: Yes, your Honor. THE COURT: -- First DCA, 2006. MR. CONITZER: And if Your Honor will look at the second column, it's highlighted, S JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 it says, "After." In this case, it was defective service of process unlike in our case. Default judgment was entered against him. The husband filed notice of appearance without challenging sufficiency of process or raising an issue with regards to jurisdictional -- personal jurisdiction. By entering a general appearance without contesting personal jurisdiction, Caldwell waived this defense. And so without having to look at the notice of action and all the other things surrounding service of process in this case, we think that the two Third DCA cases, again, Lennar Homes, Inc. versus Gabb Construction Services, Inc., at 654 So.2d, 649, and the case, your Honor, I just cited, Caldwell, make it very clear that these defenses are waived unless immediately raised even after the default has been entered. THE COURT: Is your position that filing something that says verified motion to vacate court default pursuant to 1500(d) and 1540(e) is not the same as filing a motion to quash service of process? = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 MR. CONITZER: No, Judge, because --— THE COURT: I mean, is that your position? MR. CONITZER: Yes, Judge. And I think it applies particularly well in this case because not only did they file a general appearance and that motion but also that motion seeks to raise merits issues. It doesn't only say -- THE COURT: And therefore what? MR. CONITZER: Well, it in no way, that motion doesn't attack the sufficiency of service. It raises the factors of vacating a default. I believe they're separate. Because you could be properly served or improperly served and a default be entered. But they are different. And now in this particular case, Judge, when we go through the three elements to vacate a default the defendant raised in its motion, one of those elements is an over-lapse with notice, albeit applied ina more common-law type of setting. And so they are able to argue their notice argument through their motion. But they've waived = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 the ability to contest sufficiency of service for personal jurisdiction. THE COURT: Okay. Hold on. Let me look at something. Okay. Do you want to respond that to that, Mr. Dean-Kluger? MR. DEAN-KLUGER: Sure, your Honor. First off, within the motion we do address notice issues and dispute that he was properly served. It says, "Claims to have effected substitute service, defendant was not given any notice." The other issue is that the service, it's void. And even if -- I don't believe that an objection to void service was waived. But even if it was, if one of the prongs of a motion to vacate a default is excusable neglect, next then we know that service wasn't good, so that means there was no notice which is the excusable neglect that would be needed to satisfy that prong of a motion to vacate. THE COURT: Well, I think that's what we're here for today. MR. DEAN-KLUGER: Sure. = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 THE COURT: I don't know why we're drawn, I just don't. I think we are here to put on evidence and I think it's incumbent upon you as the movant to put on evidence to demonstrate why your relief should be granted. MR. DEAN-KLUGER: Sure. THE COURT: Okay? So let's go. MR. DEAN-KLUGER: The evidence that I have, your Honor is the notice of claim. It's a part of the-- THE COURT: It's what? MR. DEAN-KLUGER: It's the notice of claim, your Honor. THE COURT: Notice of claim, that's it, the -- MR. DEAN-KLUGER: Well, with respect to the excusable neglect part. And with respect to the meritorious defense part there's a couple of issues here. One is that they're all -- I'm not even sure why they're so, you know, eager to have a default against a single defendant when there are many in this action. There's also a companion case that's = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 been transferred to in front of your Honor where my client has a crossclaim against the plaintiff in this action, Mr. Depau. So entering a default here really only risks the Court entering inconsistent verdicts and it doesn't actually resolve the case pending in front your Honor. This isn't a two-party case. And so there's a crossclaim -- THE COURT: Oh, but I wish it were. MR. DEAN-KLUGER: Your Honor, I've got to tell you something. I would agree, I would think it would be a little bit of a different situation if to just enter a judgment against my client with all this stuff but it's not going to and what it's going to do is create problems with inconsistent verdicts. The other side of the meritorious defense then, again the only evidence I need to put in is-their complaint, third amended complaint. And by the way, your Honor, not as if my client had ever been served with any of the prior pleadings in this case. And this is the first time anything was ever attempted to be served on my client. <= JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 So, you know, he says we're here at the last minute. I say we're here at the very beginning of the day. And in his complaint they have allegations that the very note that they're suing on are fraudulent. Indeed the note itself it notarized by one of the signatories which means it's void. That is also a void instrument. My client on the other hand has a 21 million-dollar judgment against the titleholders of this property. So that's a meritorious defense. The evidence of that is in the record. All of these are filings that are in the court's docket. It's not a question of testimony. The testimony -- and I see that they have their process server here today. Other than his characterization of my behavior, I don't dispute anything they've said about service. They did their diligent search. They made a bunch of attempts and that's fine but it didn't still didn't comply with the statute and whether that's void service or excusable neglect, that's the evidentiary issue that they were prepared to put forth today. All the other evidence is in the record. Those = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 are their allegations. And that's essentially what's argued in the motion to vacate which is verified and that is the evidence that I have to put forth. Now, on Friday they sent a subpoena to me on behalf of my client and they sent one to me individually. As I've said, other than the characterization of my behavior, I don't have an issue with the fact that the processor was there and the registered agent wasn't. With respect to Mr. Burstyn who would be the principal of the entity, he's in Europe, he's been there for two weeks but he's due back sometime this week but they -- I got a subpoena on Friday afternoon. But he's verified this motion. So with respect to the meritorious defense issue and excusable neglect, I think it's already been put in. THE COURT: Okay. So would you like to respond briefly to his argument? So you're resting on the statutory notice of the claim argument, notice of action? MR. DEAN-KLUGER: Well, and the verified = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 motion. So if your Honor is going to rule that the service issue was waived, then I would certainly put forth the notice of claim with respect to the excusable -- THE COURT: I'm not going to tell you how to conduct your arguments. MR. DEAN-KLUGER: Well, no, no. Your Honor, I think service is void. But I'm also saying that the fact that they didn't comply with the statute is evidence of excusable neglect because we were not given notice of the claim. I mean, that's the whole purpose of that section of the statute. THE COURT: Okay. All right. So briefly. MR. CONITZER: Well, given that the defendant rests, your Honor, we would ask the Court to rule on its failure to reach its burden because we believe that.the burden of evidence is on the defendant to show the elements to vacate which there are three elements, no notice, meritorious defense and reasonable diligence. THE COURT: Well, when you say, "No = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 notice," your position is they had actual notice, not only sufficient notice under the statute, but actual notice since Mr. Dean-Kluger who has not contested the fact that he had an interaction with the process server, he says the process server characterized it inaccurately, but he does not dispute that those, on that day, that contact. MR. CONITZER: Yes, Judge, we could begin there. We could begin there. When we talk about: actual service, notice, and statutory service, they walk together because what happened on September 25th, last year, our process server, Mr. Mas who is present in the courtroom today, appeared during statutory registered agent hours at College Health's registered agent address. When he appeared there, Mr. Dean-Kluger was there and Mr. Mas identified. himself and he informed Mr. Dean-Kluger that he was there to effect service upon Mr. Burstyn. And we can ask the process server if we get to it whether he specifically stated that it was for College Health, but I'm rather confident = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 he specifically asked for Mr. Burstyn and I believe his affidavit says so. That is notice right there. College Health had a duty to maintain a registered agent at that address or an employee at that address who could accept service at that time. That is Mr. Dean-Kluger's law firm. At the time that this happened Mr. Dean-Kluger was also representing Mr. Burstyn in a separate lawsuit. And so there's no doubt that he knew who he was. There's also no doubt that this was the registered agent address. And there's no doubt that Mr. Mas, a licensed process server, attempted to effectuate service there, did in fact verbalize his reason for being there and then was removed from the premises. That is actual notice, your Honor, and given the fact that there was in essence an evasion of service there, we would contend initially that that in and of itself is sufficient to meet the statutory elements of service. They are at registered agent address, during registered agent hours. You have an attorney there who has represented in this court on behalf of = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 the registered agent and he sent him away. I have not briefed the issue for this particular hearing, Judge, but generally speaking, I'm aware of case law that says you can't just turn your back to a process server and act as if you were not served. Thereafter and this would go more to the notice element under the elements in moving to vacate unless we would not contend that this constitutes service from a statutory prospective, but thereafter, thereafter, Judge -- give me just one moment -- thereafter what happened was a second process server attempted to effect service. THE COURT: Carmona? MR. CONITZER: Yes, Ms. Marisol Carmona. Now, she went all across town, 801 Brickell Avenue which was Mr. Burstyn's address on the Florida Bar website, 701 Brickell Avenue, maybe she was mistaken and went to two places. Then she went to an apartment in Midtown. And then final she went to Mr.-- THE COURT: I think her affidavit says 801 Brickell Avenue. = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 MR. CONITZER: Yeah and then the one below it, 10 minutes later she went to 701 Brickell. THE COURT: 701 Brickell. MR. CONITZER: So again, I'm not exactly sure. But the point being, when you get to the last three entries, you have -- last four entries, you have really her talking to Mr. Burstyn's girlfriend's mother who then called the girlfriend. THE COURT: That's Ms. Soto. MR. CONITZER: -- who then refused to provide an address, yes. Then she went to Mr. Burstyn's Homestead address. It's a very large property. She spoke to a woman on the intercom, asked for Mr. Burstyn, said he wasn't there. When informed it was about effecting service, I would guess, it says, “When I mentioned the paper, she stopped communicating." Then she attempts to re-serve again. No one answers. And then finally she concludes, "Actively avoiding service. Please advise how to proceed." So, you know, again there may be an argument to be made that this would be = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 statutory service if Ms. Carmona had left the papers there because there seems to be no intentional interference although active avoidance is for sure, so here this again strongly undercuts their no notice argument. The record here is filled with attempts at notice. And what makes it from an attorney's perspective frankly just a little bit annoying is that you think yourself you're going to serve a domestic corporation, right, it should be the easiest thing in the world. You send a process server to their registered agent address, right and it should be done, you know, and instead it was very difficult active avoidance of service. And so we would argue that the statutory service element was met in Mr. Dean-Kluger's office first again by publication and that as far as their notice from a common-law and just common sense perspective they have had adequate notice of this case for a long time. The second element that they need to demonstrate is a meritorious defense. They have raised no meritorious defenses at all. = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 They've broadly alluded to a crossclaim in a separate action. They have alluded to the existence of a judgment but have not identified that judgment, your Honor, at all. We were left to do our own digging as to what their meritorious defense could conceivably be. We identified a judgment entered in 2009. But we also identified that four properties worth after mortgages and the settlement calculations which are of record in the separate case are worth about $7 million. And the judgment was for 5.3. Again, Mr. Dean-Kluger mentioned a different judgment. But he hasn't identified it. He hasn't asked to enter it in evidence. He's made a boilerplate contention as to its existence and has not produced it at all. There is no meritorious defense here, Judge, because the only judgment we've identified is later in time to our recorded mortgage. The third reasonable diligence in vacating the default, your Honor, we think this really ties to the first element. And we would incorporate our arguments from the first element to show that given that = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 there's been actual notice since last September there's really been no diligence at all. THE COURT: Okay. This is what I have to say. And this is how I find. I accept since there was no contention otherwise that the SunBiz recording of the entity lists Mr. Dean-Kluger's office as its place of business. This Mr. Burstyn as the registered agent. I accept the affidavit of the process server and his employee Ms. Carmona that first he went back in September of 2018 and had communication regarding Mr. Burstyn's whereabouts and the representative of his entity that being Mr. Burstyn at that location. That the process server was adequately concerned about his own safety. Whether Mr. Dean-Kluger thought that he was being threatening, I accept that the process server reasonably believed that he could not and should not go back to that location. That would be futile. I further accept that numerous attempts were made as set out in Ms. Carmona's = JEANNIE REPORTING (305) 577-170510 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 affidavit to locate Mr. Burstyn and that service was evaded by Mr. Burstyn. I also find that the entity does not have the legal ability to represent or defend the instance action because it did not comply with the statute by failing to have someone at the registered location whether it was Mr. Burstyn or someone on his behalf including Shari Jakobowitz, I believe her name of the VP listed on SunBiz. She also could not be located after reasonable efforts by the process server and his employee. So either there was actual notice for this entity through Mr. Dean-Kluger or this entity does not exist and is legally unable to defend itself. I further fund that the motion filed is procedurally defective. I find that it is also inadequate. The meritorious defenses are conclusory in barebones. I further find that noth