43
Fla. L. Weekly D85b

Jurisdiction
— Service of process — Individuals who are residents of Brazil were immune
from service of process while they were appearing to be deposed in Florida in
their corporate capacities — Trial court erred in denying motion to quash
service of process made upon individuals while they attended depositions in
their corporate capacities

LUIZ QUEIROZ, et al., Appellants, v.
BENTLEY BAY RETAIL, LLC, Appellee. 3rd District. Case No. 3D17-1604. L.T. Case
No. 16-25189. January 3, 2018. An Appeal from a non-final order from the
Circuit Court for Miami-Dade County, Eric William Hendon, Judge. Counsel:
Bernhard Law Firm PLLC, and Andrew J. Bernhard, for appellants. Kozyak Tropin
& Throckmorton, LLP, and Javier A. Lopez, Dyanne E. Feinberg, and Stephanie
Moncada Gomez, for appellee.

(Before ROTHENBERG, C.J., and LAGOA
and LOGUE, JJ.)

(LOGUE, J.) Appellants Luiz Queiroz
and Karine Queiroz, seek review of the trial court’s orders denying their
motions to quash the service of process made upon them individually while they
attended depositions in their capacities as corporate officers of Soho Bay
Restaurant, LLC (Soho Bay), and entering sanctions against them. We reverse.

The appellee, Bentley Bay Retail,
LLC, filed suit against four defendants: Soho Bay; Luiz Queiroz; Karine
Queiroz; and Katz, Barron, Squitero, Faust, Friedberg, English & Allen,
P.A. (Katz Barron).1 Soho Bay was served via its manager,
Max Heindl. Luiz and Karine Queiroz reside in Brazil and are corporate officers
of Soho Bay. The sole count against Luiz and Karine Queiroz, individually, was
for breach of personal guaranty.

Bentley Bay filed notices to take
the depositions of Luiz and Karine Queiroz. Luiz and Karine Queiroz repeatedly
tried to fend off these depositions. First, they argued that immigration issues
made it unduly burdensome for them to appear in the United States. Then they
argued they could not be deposed in Brazil. Ultimately, the trial court had to
order them to “appear for deposition in their corporate capacity.” Following a
motion for reconsideration, the trial court again ordered them to appear for
deposition. Luiz and Karine Queiroz then agreed to come to Florida to be
deposed. At the depositions, Luiz and Karine Queiroz were served with suit in
their individual capacities. They moved to quash service, arguing they were
immune from service of process because they were appearing in the jurisdiction
to be deposed in their corporate capacities. The trial court denied the appellants’
motion and this appeal followed.

Under Florida law, “[i]t is well
established . . . that witnesses and suitors in attendance in court outside of
the territorial jurisdiction of their residence are immune from service of
process while attending court and for a reasonable time before and after going
to court and in returning to their homes.” Murphy & Jordan, Inc. v. Ins.
Co. of N. Am., 278 So. 2d 296, 297 (Fla. 3d DCA 1973) (citation omitted).

Bentley Bay argues that this case
falls within an exception to Murphy. “Murphy recognized that its
rule of immunity to process does not apply when there is (1) identity of
parties and (2) identity of issues.” Id. (citations omitted). Here,
however, there was no identity of the parties.

Luiz and Karine Queiroz were appearing
in their corporate capacities. Bentley Bay wants to serve them in their
individual capacity. For purposes of immunity from service of process, there is
no identity of a person in their corporate capacity and individual capacity. Murphy,
278 So. 2d at 296-97 (finding that the exception to the immunity rule did not
apply where individual named defendants were served with process at a
deposition where they appeared in their corporate capacities). This case
therefore does not fall within the exception.

Bentley Bay, however, argues that
Luiz and Karine Queiroz have sufficient minimum contacts to subject them to
jurisdiction under Florida’s long-arm statute, section 48.193, Florida
Statutes. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499,
502 (Fla. 1989). Whether Luiz and Karine Queiroz are subject to long-arm
jurisdiction, an issue we do not decide, is irrelevant to our ruling. Even if
they are subject to long-arm jurisdiction, Luiz and Karine Queiroz still need
to be served. Under Murphy, they cannot be served while attending a
court-ordered deposition.

Accordingly, we reverse the trial
court’s order denying the motion to quash service and to dismiss for lack of
jurisdiction and remand for further proceedings consistent with this opinion.
The sanctions order established Bentley Bay’s entitlement to fees “expended on
these matters.” We reverse the sanctions order to the extent it awards
sanctions specifically related to the motions to quash and dismiss for lack of
service.

Reversed and remanded.

__________________

1Soho Bay and Katz Barron are not
parties to this appeal.

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