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Filing # 85814505 E-Filed 03/04/2019 02:19:50 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
HARRY BIEBERSTEIN,
Plaintiff,
Case No. 17-CA-917
GABRIEL KIRCHBERGER, CAROL DEVILLE,
SOUTHERN SHORES ENTERPRISES, LLC,
a Florida limited liability company, and
MOONSTONE HOLDINGS, LLC, a Nevada
limited liability company.
Defendants.
/
PLAINTIFF’S MOTION FOR RECONSIDERATION OF
THE COURT ORDER DATED JULY 24, 2018 REFUSING TO RECOGNIZE
AND ENFORCE ONTARIO SUPERIOR COURT JUDGMENT DATED SEPTEMBER 23, 2016
COMES NOW the Plaintiff, HARRY BIERBERSTEIN (“BIEBERSTEIN’), by and through
his undersigned counsel, and files this, his Motion for Reconsideration of this Court's Order
dated July 24, 2018 in which the Court refused to recognize and enforce the Ontario Superior
Court Judgment dated September 23, 2016, and in support thereof would state as follows:
Section 55.602, Florida Statutes, defines an out-of-country foreign judgment as “any
judgment of a foreign state granting or denying recovery of a sum of money, other than a
judgment for taxes, a fine, or other penalty.” Fla. Stat. § 55.602(2). In explaining Florida’s
Uniform Out-of-Country Foreign Money—Judgment Recognition Act, the Middle District of Florida
explained as follows:
The Act applies to any judgment of a foreign state “that is final and conclusive
and enforceable where rendered, even though an appeal therefrom is pending or
is subject to appeal.” Fla. Stat. §§ 55.602(2), 55.603. A judgment meeting these
criteria “is conclusive between the parties to the extent that it grants or denies
recovery of a sum of money,” subject to the exceptions contained in Fla. Stat. §
55.605. See Fla. Stat. § 55.604. Section 55.605 specifies three mandatory
grounds for non-recognition and seven discretionary grounds for non-recognition.
Fla. Stat. § 55.605(1)-(2); Israel v. Flick Mortg. Investors, Inc., 23 So. 3d 1196,
1197-98 (Fla. 3d DCA 2008). If the judgment is recognized, it is immediately
enforceable in Florida as though it were a final judgment of a Florida court.
Armadillo Distribution Enterprises, Inc. v. Hai Yun Musical Instruments Manufacture Co., No.
8:12-CV-1839-T-36EAJ, 2015 WL 12732417, at *6 (M.D. Fla. Apr. 28, 2015).
The exceptions set out in Section 55.605, Florida Statutes, upon which a foreign
judgment could be deemed unenforceable are as follows:
(1) An out-of-country foreign judgment is not conclusive if:
(a) The judgment was rendered under a system which does not provide
impartial tribunals or procedures compatible with the requirements of due
process of law.
(b) The foreign court did not have personal jurisdiction over the defendant.
(c) The foreign court did not have jurisdiction over the subject matter.
(2) An out-of-country foreign judgment need not be recognized if:
(a) The defendant in the proceedings in the foreign court did not receive
notice of the proceedings in sufficient time to enable him or her to defend.
(b) The judgment was obtained by fraud.
(c) The cause of action or claim for relief on which the judgment is based is
repugnant to the public policy of this state.
() The judgment conflicts with another final and conclusive order.
e) The proceeding in the foreign court was contrary to an agreement
between the parties under which the dispute in question was to be settled
otherwise than by proceedings in that court.
(f) In the case of jurisdiction based only on personal service, the foreign
court was a seriously inconvenient forum for the trial of the action.
(9) The foreign jurisdiction where judgment was rendered would not give
recognition to a similar judgment rendered in this state.
(h) The cause of action resulted in a defamation judgment obtained in a
jurisdiction outside the United States, unless the court sitting in this state
before which the matter is brought first determines that the defamation
law applied in the foreign court's adjudication provided at least as much
protection for freedom of speech and press in that case as would be
provided by the United States Constitution and the State Constitution.
Fla. Stat. § 55.605.
Thus, a foreign judgment will be recognized if the judgment (1) grants or denies a sum
of money, (2) is final, conclusive, and enforceable in the country or state where rendered, and
(3) is not subject to any of the above-delineated grounds for non-recognition in Florida. See
Tettamanti v. Opcion Sociedad Anonima, 67 So. 3d 356, 357 (Fla. 3d DCA 2011). Defendants
have neither alleged that the Judgment is subject to any of the grounds for non-recognition nor
that the Judgment is not enforceable in Ontario, Canada, where it was rendered. Rather, their
point of contention is that the Judgment does not grant or deny a sum of money, but instead,
only entitles BIEBERSTEIN to enforcement of the Judgment against KIRCHBERGER’S assets
in Ontario, Canada.
The Judgment at issue is a monetary judgment as the judgment itself clearly indicates.
The controlling language in the judgment is:
- “declares and adjudges” the amount of liability as 8,391,909 euros “inclusive of
pre-judgment interest through to the date of the judgment, plus any post-judgment
interest accrued on the unpaid balance of the liability assumed in the Acknowledgments,
which shall accrue at a rate of 3% per year’;
- “declares and adjudged that Defendant Gabriel Kirchberger pay to the Plaintiff
costs and disbursement in the amount of $56,738.67, inclusive of HST”;
- “declares and adjudges that the Plaintiff pay to Ms. Susanne Viktoria Schmidt
costs in the amount of $5000.
The language in the Judgment, upon which the Defendants collectively rely, when
arguing that the Judgment is not a “monetary judgment” states the obvious that the
Judgment, the same as any duly entered Florida Judgment is only enforceable against
assets located in Florida. The purpose behind the Uniform Enforcement of Judgment Act
and the Uniform Enforcement of out-of-country Judgment Act, is to provide a mechanism for
the “domestication” of and enforcement of valid foreign judgments.
During the proceedings in the Ontario Superior Court of Justice, there was a discussion
with the Court as to the relief being sought by BIEBERSTEIN. The Court's comments support
the enforceability of the Judgment by this Court, as they make clear that the Judgment, if
properly domesticated, is enforceable in Florida. A true and correct copy of the transcript of
proceedings has been filed with this Court, the relevant excerpts include, but are not limited to
the following:
MR. MANNING (trial attorney for BIEBERSTEIN): The debt acknowledgment on
its face talks about a personal liability wherever assets are. Mr. Rosenstein has
told you today he’s going to dispute that. He does not agree with that. That
means | have to call expert evidence to prove something that’s already been
proved to the Court of Appeal and to Justice Wilton-Seigel because that is the
language they used. They felt that the debt acknowledgements permitted
enforcement proceedings against the real and personal property of Mr.
Kirchberger wherever situated. That is the language used by the Courts.’
MR. ROSENSTEIN (trial attorney for KIRCHBERGER): I’m making it explicit
now that regardless “wherever situated”, the assets here in Ontario are available
to satisfy the judgment if Mr. Bieberstein comes hear.
THE COURT: | don't know what they're going to want to do with the judgment
that they get here if they want to, you know, try to get something enforced in
some other jurisdiction on the basis of a decision here. | don't want to —
THE COURT: Well, except that Justice Wilton-Seigel did say—your friend is
right—at paragraph 10; “Under German law, the acknowledgements permit the
bank to whom is it was given to bring enforcement proceedings against all of
Kirchberger’s real and personal property wherever situated”
THE COURT: Well, they want to get a judgment here, but, | mean, I'm just trying
to think ahead of the possibility
MR. ROSENSTEIN: Right.
THE COURT: -- that Mr. Kirchberger is a little too cute and -- let's assume that he
gets —
‘ One of the issues on appeal was whether or not the Court erred in concluding the SCE’s (the
Acknowledgements) were German Judgments for the purposes of Ontario limitations law. Another issue
was whether or not the Court erred when concluding that BIEBERSTEIN was entitled to enforce the
SCE’s against KIRCHBERGER’s assets in Ontario. The Court of Appeals agreed with the lower Court on
both of these issues. The Order, referred to as an “Endorsement”, that was the subject of the appeal
stated in part that (i) “... Acknowledgments permit the Bank to whom is was given to bring enforcement
proceedings against all of KIRCHBERGER’s real and personal property wherever situate” and (ii)
“.,.under the laws of Germany is to permit the holder to proceed to enforce...as if the holder had received
a judgment of a German court in the amount of such liability.”
4
MR. ROSENSTEIN: Right.
THE COURT: -- Mr. Bieberstein gets a judgment against Mr. Kirchberger here
and whoops he's gone and moved his assets somewhere else, or whatever, |
don't want at the end of the day somebody to be precluded from saying well,
you've got a judgment. Well, it's not worth the paper it's written on because, you
know, he's got all of his assets now down in Florida, or something.
MR. ROSENSTEIN: | understand. But that's —
THE COURT: Well, then it's very much not a mood issue. It's very much a real
issue, and | can absolutely understand why Mr. Manning is concerned about that.
MR. ROSENSTEIN: All right? The paragraph 28 and this is now—the Plaintiff is
coming and saying this is what Justice Wilton-Seigel said that we're asking for in
this action.
THE COURT: Right.
MR. ROSENSTEIN: So that’s seeking an order that Mr. Bieberstein would be
entitled to enforce against Kirchberger’s assets against Kirchberger’s assets in
Ontario.
THE COURT: Right.
MR. ROSENSTEIN: If they are now seeking on Order that those
acknowledgements are enforceable against Kirchberger’s assets anywhere in the
world...
THE COURT: This order could not—this court could not make such an order.
But | guess my point | that would be arguing that is a valid that he’s entitled to X
number of dollars from Mr. Kirchberger, and then this judgment would be taking it
somewhere else and, you know, | don’t know whether it was a reciprocal
enforcement jurisdiction or otherwise, and try to enforce it is some other
jurisdiction.
THE COURT: You're not taking issue with that?
MR. ROSENSTEIN: I am, Your Honour, because they have never sought that
order. They have never said | want a judgment in that amount.
THE COURT: | understand that. And they may not be envisaging that now. And
whatever happens, | can't go off and order other jurisdictions to do other things.
You're quite right.
But the point is at the end of the day there is a judgment in favor of Mr.
Bieberstein, | give my judgment, | just don’t want somebody standing up and
saying Mr. Manning, you're estopped from seeking enforcement, you know,
reciprocal enforcement of that judgment in the United States, for example,
because you stood up and said that you were taking issue with the enforcement
anywhere other than Ontario.
See Transcript of Proceedings, at pp. 136, 142, 143, 144, 148, 149-50.
At the outset of the discussion about the enforceability of the Order, Madam Justice
Thorburn makes it clear that she understands why BIEBERSTEIN would be concerned about
the jurisdictional applicability due to the possibility that there is no property left in Ontario to
satisfy the Judgment once granted. Defendant’s counsel at that proceeding also conceded that
he understood why BIEBERSTEIN would want to seek clarification on that issue, however
suggests to the Court that because BIERBERSTEIN did not specifically ask for that relief he is
not entitled to that relief. Madam Justice Thorburn then clarified that although BIEBERSTEIN
would have to go through the proper channels of getting the Order recognized in a foreign
jurisdiction, he should not be estopped from seeking enforcement of the Judgment, which is
exactly what the Defendants are attempting in the present case.
Attorney Rosenstein further asserted during the Ontario proceeding that given the
existence of certain German legal documents, “[i]f the court will make or not make that order
whether or not the Court makes that order here doesn’t in any way bar Mr. Bieberstein from
going to Florida and saying in Florida | have this piece of paper.” See Transcript, at p. 158.
However, Madam Justice Thorburn does not particularly accept that argument and suggests as
follows: “except that here he would have a judgment. He wouldn't just have a piece of paper . . .
[s]o he would be a few steps ahead of the game.” See Transcript, at p. 158.
There was also some discussion between Attorney Manning and Madam Justice
Thorburn that suggests she might have accepted that there was a narrowing of the relief
requested; however, counsel explained that the relief is framed “in the alternative” because it is
executable wherever situated. See Transcript, at p. 164. Madam Justice Thorburn replied that
the Court “can’t order that it's going to be enforced anywhere other than this jurisdiction” to
which Attorney Manning replied as follows:
| know. But if it's on the basis of a recognition that the acknowledgements take
the form of covenants which allow for execution against property wherever
situate, then I'm now on notice that | want -- I'm going to have to prove that so
that it's not restrictive, so that your judgment at the end of the day doesn't
preclude being able to enforce against assets elsewhere.
THE COURT: Okay. | don't think anybody's arguing that it would preclude.
MR. MANNING: And if my friend asked you in your final endorsement of the
judgment to make that clear, | wouldn't stand in the way.
THE COURT: Yes. | don't think that's an issue. If that's the concern, Mr.
Manning, | did not understand your friend to be saying that. And he’s confirmed
now that he’s not saying that. He’s not going to suggest in any way that any
judgment that comes out of this court would preclude your from going to another
jurisdiction with that judgment and saying—
MR. MANNING: -- on that acknowledgment.
THE COURT: -- on that acknowledgment.
THE COURT: -- Absolutely, absolutely, absolutely, absolutely.
MR. MANNING: And if | going to have to prove that Acknowledgement and
wherever situate, then that takes me back to where we were on the motion
before Justice Wilton-Siegel.
MR. MANNING: | don't want to be caught off base —
THE COURT. | understand.
MR. MANNING: -- at the end of the day.
THE COURT: We have to make sure we understand this issue. And that's why
I'm asking Mr. Rosenstein to clarify that.
See Transcript of Proceedings, at pp. 165-66, 168.
Thus, there was clarification had as to whether or not KIRCHBERGER will be able to
argue that the Judgment should not be enforced in a reciprocal jurisdiction if the circumstances
arise. Attorney Rosenstein specifically argued, to which the Court replied, as follows:
in terms of what else my friends want to prove to assist him in other jurisdictions,
with the greatest respect, that really shouldn't be the concern of this court. This
court should focus on what he’s asked for, which is —can they be enforced here.
THE COURT: all he’s trying to understand — is that in front of this court, are you
going to be saying that there is any impediment to his client collecting on those 8
acknowledgements, except for those 3 issues. | think the answer you've said is
no.
MR. ROSENSTEIN: No, | will not.
THE COURT: And that if Mr. Manning takes my judgment or whoever it is
that decides this at the end of the day -- the judgment —
MR. ROSENSTEIN: Yes.
THE COURT: -- and wants to go somewhere else, you are not going to be
standing up and saying that judgment should in any way preclude you from
getting any relief you want to seek anywhere else.
MR. ROSENSTEIN: To the extent he’s entitled to some relief somewhere
else.
THE COURT: And the acknowledgements say what the acknowledgements say
on their face.
MR. ROSENSTEIN: Yes.
THE COURT: -- and that's not going to be contested?
MR. ROSENSTEIN: Correct.
THE COURT: And _ according to Mr. Manning, the wording in the
acknowledgement is "situate anywhere in the world" or whatever it is.
MR. ROSENSTEIN: Right. And we disagree. But | just don't think that that's
important in the sense that he's seeking a relief here. Whatever relief he obtains
here doesn't help him or hurt him elsewhere, except to the extent he thinks it
helps or hurts him somewhere else.
THE COURT: We'll accept that he's going to have to argue that the — that it's
enforceable — that the acknowledgement allows him. | think what he's going to try
to do is get a leg off somewhere else, and say, well, look, there's a finding that
this thing is enforceable anywhere.
MR. ROSENSTEIN: Right. And that -- and to the extent that he wants the
leverage of finding of this court elsewhere, that is something | am going to take
issue an additional piece -- because that's not related to his enforcement here,
which was, again, what | thought the list we were going to go through was. But,
you know
THE COURT: All right.
MR. ROSENSTEIN: | don't know what more to say about that.
THE COURT: | don't think there is any more to say. Okay. That's fine. And, |
mean, frankly, I'm not sure that there is anything that needs to be proven. It's the
document says what the document says. | mean, unless there is some sort of
oral concession or something else. I'm not really sure that's a big issue in any
event. So was there anything else that you say, Mr. Manning, that goes beyond
the scope of those 3 issues that Mr. Rosenstein has raised?
MR. MANNING: No. | don't agree that these are confined to the 3 issues. | don't
agree that they -- these are in accordance with the concessions that you have
listed in 18A through to H.
THE COURT: This is your opportunity to give me your submissions, not just to
say | don't agree with anything. But the point that | am saying to you, sir, is that
Mr. Rosenstein | think — has been fair in saying, this court is deciding about
judgments that are enforceable in Ontario, and so that issue really has nothing to
do with the enforcement of any judgement in Ontario, and insofar as you would
like there being a statement which for the purpose of any other court is obiter--
that is an alive issue. Whether or not the court anywhere else would care what
anybody in this court said is a whole other matter anyway. But assuming that
they did, that is something that he's not conceding, and in any event isn't really
relevant to what you're seeking in Ontario. So | think what we need to be
concerned about is: Are there issues that would impede you from getting any
relief that this court could possibly offer you, and he says that there are only
those 3 issues insofar as the acknowledgements are concerned.
THE COURT: the Defendants have conceded that there are only 3 issues that
they can test in challenging the Plaintiff's request for an order of this Court that
he is entitled to enforce against the assets of Mr. Kirchberger located in Ontario
in the manner and to the extent as if he had obtained a judgment against Mr.
Kirchberger for the payment of money in the amount of the liability assumed in
the acknowledgment. And those 3 issues are: One, whether the Berlin Hypo
Bank was the holder of all of the acknowledgments; two, whether the
acknowledgments were properly assigned to Mr. Bieberstein; and three, the
balance owing on the debts for which Mr. Kirchberger is liable under the
acknowledgments.
See Transcript of Proceedings, at pp. 169-72, 199 (emphasis supplied).
Thus, it is clear from the transcript of proceedings that it was the Court’s intent that the
Judgment is for monetary amount capable of being domesticated in other jurisdictions. The
Judgment itself and the Reasons for Judgment both refer to monetary amounts to which
KIRCHBERGER is obligated.
WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, respectfully requests that this Court
enter an Order denying each of the Defendants, GABRIEL KIRCHBERGER and CAROL
DEVILLE’s, Motions to Dismiss, and award all such other and further relief that the Court deems
just and proper.
DATED this 4th day of March, 2019.
WOODS, WEIDENMILLER, MICHETTI &
RUDNICK, LLP
By: /s/ Mark A. Slack
Mark A. Slack
Florida Bar No. 394785
9045 Strada Stell Court, Suite 400
Naples, FL 34109
(239) 325-4070 — Telephone
(239) 325-4080 — Facsimile
mslack@lawfirmnaples.com
msilvestri@lawfirmnaples.com
service@lawfirmnaples.com
10
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 4th day of March, 2019, a true and correct copy of the
foregoing has been electronically filed with the Clerk of Court via the Florida Courts E-Filing
Portal which will send notification to the following counsel of record: Robert W. Segur, Esq.,
Legal@segurlaw.net and David K. Oaks, Esq., doaksesq@comcast.net.
WOODS, WEIDENMILLER, MICHETTI &
RUDNICK, LLP
By: /s/ Mark A. Slack
Mark A. Slack
Florida Bar No. 394785
9045 Strada Stell Court, Suite 400
Naples, FL 34109
(239) 325-4070 — Telephone
(239) 325-4080 — Facsimile
mslack@lawfirmnaples.com
msilvestri@lawfirmnaples.com
service@lawfirmnaples.com
11
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Filing # 85814505 E-Filed 03/04/2019 02:19:50 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION HARRY BIEBERSTEIN, Plaintiff, Case No. 17-CA-917 GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, LLC, a Florida limited liability company, and MOONSTONE HOLDINGS, LLC, a Nevada limited liability company. Defendants. / PLAINTIFF’S MOTION FOR RECONSIDERATION OF THE COURT ORDER DATED JULY 24, 2018 REFUSING TO RECOGNIZE AND ENFORCE ONTARIO SUPERIOR COURT JUDGMENT DATED SEPTEMBER 23, 2016 COMES NOW the Plaintiff, HARRY BIERBERSTEIN (“BIEBERSTEIN’), by and through his undersigned counsel, and files this, his Motion for Reconsideration of this Court's Order dated July 24, 2018 in which the Court refused to recognize and enforce the Ontario Superior Court Judgment dated September 23, 2016, and in support thereof would state as follows: Section 55.602, Florida Statutes, defines an out-of-country foreign judgment as “any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine, or other penalty.” Fla. Stat. § 55.602(2). In explaining Florida’s Uniform Out-of-Country Foreign Money—Judgment Recognition Act, the Middle District of Florida explained as follows: The Act applies to any judgment of a foreign state “that is final and conclusive and enforceable where rendered, even though an appeal therefrom is pending or is subject to appeal.” Fla. Stat. §§ 55.602(2), 55.603. A judgment meeting these criteria “is conclusive between the parties to the extent that it grants or denies recovery of a sum of money,” subject to the exceptions contained in Fla. Stat. § 55.605. See Fla. Stat. § 55.604. Section 55.605 specifies three mandatory grounds for non-recognition and seven discretionary grounds for non-recognition. Fla. Stat. § 55.605(1)-(2); Israel v. Flick Mortg. Investors, Inc., 23 So. 3d 1196, 1197-98 (Fla. 3d DCA 2008). If the judgment is recognized, it is immediately enforceable in Florida as though it were a final judgment of a Florida court. Armadillo Distribution Enterprises, Inc. v. Hai Yun Musical Instruments Manufacture Co., No. 8:12-CV-1839-T-36EAJ, 2015 WL 12732417, at *6 (M.D. Fla. Apr. 28, 2015). The exceptions set out in Section 55.605, Florida Statutes, upon which a foreign judgment could be deemed unenforceable are as follows: (1) An out-of-country foreign judgment is not conclusive if: (a) The judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law. (b) The foreign court did not have personal jurisdiction over the defendant. (c) The foreign court did not have jurisdiction over the subject matter. (2) An out-of-country foreign judgment need not be recognized if: (a) The defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him or her to defend. (b) The judgment was obtained by fraud. (c) The cause of action or claim for relief on which the judgment is based is repugnant to the public policy of this state. () The judgment conflicts with another final and conclusive order. e) The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court. (f) In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action. (9) The foreign jurisdiction where judgment was rendered would not give recognition to a similar judgment rendered in this state. (h) The cause of action resulted in a defamation judgment obtained in a jurisdiction outside the United States, unless the court sitting in this state before which the matter is brought first determines that the defamation law applied in the foreign court's adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by the United States Constitution and the State Constitution. Fla. Stat. § 55.605. Thus, a foreign judgment will be recognized if the judgment (1) grants or denies a sum of money, (2) is final, conclusive, and enforceable in the country or state where rendered, and (3) is not subject to any of the above-delineated grounds for non-recognition in Florida. See Tettamanti v. Opcion Sociedad Anonima, 67 So. 3d 356, 357 (Fla. 3d DCA 2011). Defendants have neither alleged that the Judgment is subject to any of the grounds for non-recognition nor that the Judgment is not enforceable in Ontario, Canada, where it was rendered. Rather, their point of contention is that the Judgment does not grant or deny a sum of money, but instead, only entitles BIEBERSTEIN to enforcement of the Judgment against KIRCHBERGER’S assets in Ontario, Canada. The Judgment at issue is a monetary judgment as the judgment itself clearly indicates. The controlling language in the judgment is: - “declares and adjudges” the amount of liability as 8,391,909 euros “inclusive of pre-judgment interest through to the date of the judgment, plus any post-judgment interest accrued on the unpaid balance of the liability assumed in the Acknowledgments, which shall accrue at a rate of 3% per year’; - “declares and adjudged that Defendant Gabriel Kirchberger pay to the Plaintiff costs and disbursement in the amount of $56,738.67, inclusive of HST”; - “declares and adjudges that the Plaintiff pay to Ms. Susanne Viktoria Schmidt costs in the amount of $5000. The language in the Judgment, upon which the Defendants collectively rely, when arguing that the Judgment is not a “monetary judgment” states the obvious that the Judgment, the same as any duly entered Florida Judgment is only enforceable against assets located in Florida. The purpose behind the Uniform Enforcement of Judgment Act and the Uniform Enforcement of out-of-country Judgment Act, is to provide a mechanism for the “domestication” of and enforcement of valid foreign judgments. During the proceedings in the Ontario Superior Court of Justice, there was a discussion with the Court as to the relief being sought by BIEBERSTEIN. The Court's comments support the enforceability of the Judgment by this Court, as they make clear that the Judgment, if properly domesticated, is enforceable in Florida. A true and correct copy of the transcript of proceedings has been filed with this Court, the relevant excerpts include, but are not limited to the following: MR. MANNING (trial attorney for BIEBERSTEIN): The debt acknowledgment on its face talks about a personal liability wherever assets are. Mr. Rosenstein has told you today he’s going to dispute that. He does not agree with that. That means | have to call expert evidence to prove something that’s already been proved to the Court of Appeal and to Justice Wilton-Seigel because that is the language they used. They felt that the debt acknowledgements permitted enforcement proceedings against the real and personal property of Mr. Kirchberger wherever situated. That is the language used by the Courts.’ MR. ROSENSTEIN (trial attorney for KIRCHBERGER): I’m making it explicit now that regardless “wherever situated”, the assets here in Ontario are available to satisfy the judgment if Mr. Bieberstein comes hear. THE COURT: | don't know what they're going to want to do with the judgment that they get here if they want to, you know, try to get something enforced in some other jurisdiction on the basis of a decision here. | don't want to — THE COURT: Well, except that Justice Wilton-Seigel did say—your friend is right—at paragraph 10; “Under German law, the acknowledgements permit the bank to whom is it was given to bring enforcement proceedings against all of Kirchberger’s real and personal property wherever situated” THE COURT: Well, they want to get a judgment here, but, | mean, I'm just trying to think ahead of the possibility MR. ROSENSTEIN: Right. THE COURT: -- that Mr. Kirchberger is a little too cute and -- let's assume that he gets — ‘ One of the issues on appeal was whether or not the Court erred in concluding the SCE’s (the Acknowledgements) were German Judgments for the purposes of Ontario limitations law. Another issue was whether or not the Court erred when concluding that BIEBERSTEIN was entitled to enforce the SCE’s against KIRCHBERGER’s assets in Ontario. The Court of Appeals agreed with the lower Court on both of these issues. The Order, referred to as an “Endorsement”, that was the subject of the appeal stated in part that (i) “... Acknowledgments permit the Bank to whom is was given to bring enforcement proceedings against all of KIRCHBERGER’s real and personal property wherever situate” and (ii) “.,.under the laws of Germany is to permit the holder to proceed to enforce...as if the holder had received a judgment of a German court in the amount of such liability.” 4 MR. ROSENSTEIN: Right. THE COURT: -- Mr. Bieberstein gets a judgment against Mr. Kirchberger here and whoops he's gone and moved his assets somewhere else, or whatever, | don't want at the end of the day somebody to be precluded from saying well, you've got a judgment. Well, it's not worth the paper it's written on because, you know, he's got all of his assets now down in Florida, or something. MR. ROSENSTEIN: | understand. But that's — THE COURT: Well, then it's very much not a mood issue. It's very much a real issue, and | can absolutely understand why Mr. Manning is concerned about that. MR. ROSENSTEIN: All right? The paragraph 28 and this is now—the Plaintiff is coming and saying this is what Justice Wilton-Seigel said that we're asking for in this action. THE COURT: Right. MR. ROSENSTEIN: So that’s seeking an order that Mr. Bieberstein would be entitled to enforce against Kirchberger’s assets against Kirchberger’s assets in Ontario. THE COURT: Right. MR. ROSENSTEIN: If they are now seeking on Order that those acknowledgements are enforceable against Kirchberger’s assets anywhere in the world... THE COURT: This order could not—this court could not make such an order. But | guess my point | that would be arguing that is a valid that he’s entitled to X number of dollars from Mr. Kirchberger, and then this judgment would be taking it somewhere else and, you know, | don’t know whether it was a reciprocal enforcement jurisdiction or otherwise, and try to enforce it is some other jurisdiction. THE COURT: You're not taking issue with that? MR. ROSENSTEIN: I am, Your Honour, because they have never sought that order. They have never said | want a judgment in that amount. THE COURT: | understand that. And they may not be envisaging that now. And whatever happens, | can't go off and order other jurisdictions to do other things. You're quite right. But the point is at the end of the day there is a judgment in favor of Mr. Bieberstein, | give my judgment, | just don’t want somebody standing up and saying Mr. Manning, you're estopped from seeking enforcement, you know, reciprocal enforcement of that judgment in the United States, for example, because you stood up and said that you were taking issue with the enforcement anywhere other than Ontario. See Transcript of Proceedings, at pp. 136, 142, 143, 144, 148, 149-50. At the outset of the discussion about the enforceability of the Order, Madam Justice Thorburn makes it clear that she understands why BIEBERSTEIN would be concerned about the jurisdictional applicability due to the possibility that there is no property left in Ontario to satisfy the Judgment once granted. Defendant’s counsel at that proceeding also conceded that he understood why BIEBERSTEIN would want to seek clarification on that issue, however suggests to the Court that because BIERBERSTEIN did not specifically ask for that relief he is not entitled to that relief. Madam Justice Thorburn then clarified that although BIEBERSTEIN would have to go through the proper channels of getting the Order recognized in a foreign jurisdiction, he should not be estopped from seeking enforcement of the Judgment, which is exactly what the Defendants are attempting in the present case. Attorney Rosenstein further asserted during the Ontario proceeding that given the existence of certain German legal documents, “[i]f the court will make or not make that order whether or not the Court makes that order here doesn’t in any way bar Mr. Bieberstein from going to Florida and saying in Florida | have this piece of paper.” See Transcript, at p. 158. However, Madam Justice Thorburn does not particularly accept that argument and suggests as follows: “except that here he would have a judgment. He wouldn't just have a piece of paper . . . [s]o he would be a few steps ahead of the game.” See Transcript, at p. 158. There was also some discussion between Attorney Manning and Madam Justice Thorburn that suggests she might have accepted that there was a narrowing of the relief requested; however, counsel explained that the relief is framed “in the alternative” because it is executable wherever situated. See Transcript, at p. 164. Madam Justice Thorburn replied that the Court “can’t order that it's going to be enforced anywhere other than this jurisdiction” to which Attorney Manning replied as follows: | know. But if it's on the basis of a recognition that the acknowledgements take the form of covenants which allow for execution against property wherever situate, then I'm now on notice that | want -- I'm going to have to prove that so that it's not restrictive, so that your judgment at the end of the day doesn't preclude being able to enforce against assets elsewhere. THE COURT: Okay. | don't think anybody's arguing that it would preclude. MR. MANNING: And if my friend asked you in your final endorsement of the judgment to make that clear, | wouldn't stand in the way. THE COURT: Yes. | don't think that's an issue. If that's the concern, Mr. Manning, | did not understand your friend to be saying that. And he’s confirmed now that he’s not saying that. He’s not going to suggest in any way that any judgment that comes out of this court would preclude your from going to another jurisdiction with that judgment and saying— MR. MANNING: -- on that acknowledgment. THE COURT: -- on that acknowledgment. THE COURT: -- Absolutely, absolutely, absolutely, absolutely. MR. MANNING: And if | going to have to prove that Acknowledgement and wherever situate, then that takes me back to where we were on the motion before Justice Wilton-Siegel. MR. MANNING: | don't want to be caught off base — THE COURT. | understand. MR. MANNING: -- at the end of the day. THE COURT: We have to make sure we understand this issue. And that's why I'm asking Mr. Rosenstein to clarify that. See Transcript of Proceedings, at pp. 165-66, 168. Thus, there was clarification had as to whether or not KIRCHBERGER will be able to argue that the Judgment should not be enforced in a reciprocal jurisdiction if the circumstances arise. Attorney Rosenstein specifically argued, to which the Court replied, as follows: in terms of what else my friends want to prove to assist him in other jurisdictions, with the greatest respect, that really shouldn't be the concern of this court. This court should focus on what he’s asked for, which is —can they be enforced here. THE COURT: all he’s trying to understand — is that in front of this court, are you going to be saying that there is any impediment to his client collecting on those 8 acknowledgements, except for those 3 issues. | think the answer you've said is no. MR. ROSENSTEIN: No, | will not. THE COURT: And that if Mr. Manning takes my judgment or whoever it is that decides this at the end of the day -- the judgment — MR. ROSENSTEIN: Yes. THE COURT: -- and wants to go somewhere else, you are not going to be standing up and saying that judgment should in any way preclude you from getting any relief you want to seek anywhere else. MR. ROSENSTEIN: To the extent he’s entitled to some relief somewhere else. THE COURT: And the acknowledgements say what the acknowledgements say on their face. MR. ROSENSTEIN: Yes. THE COURT: -- and that's not going to be contested? MR. ROSENSTEIN: Correct. THE COURT: And _ according to Mr. Manning, the wording in the acknowledgement is "situate anywhere in the world" or whatever it is. MR. ROSENSTEIN: Right. And we disagree. But | just don't think that that's important in the sense that he's seeking a relief here. Whatever relief he obtains here doesn't help him or hurt him elsewhere, except to the extent he thinks it helps or hurts him somewhere else. THE COURT: We'll accept that he's going to have to argue that the — that it's enforceable — that the acknowledgement allows him. | think what he's going to try to do is get a leg off somewhere else, and say, well, look, there's a finding that this thing is enforceable anywhere. MR. ROSENSTEIN: Right. And that -- and to the extent that he wants the leverage of finding of this court elsewhere, that is something | am going to take issue an additional piece -- because that's not related to his enforcement here, which was, again, what | thought the list we were going to go through was. But, you know THE COURT: All right. MR. ROSENSTEIN: | don't know what more to say about that. THE COURT: | don't think there is any more to say. Okay. That's fine. And, | mean, frankly, I'm not sure that there is anything that needs to be proven. It's the document says what the document says. | mean, unless there is some sort of oral concession or something else. I'm not really sure that's a big issue in any event. So was there anything else that you say, Mr. Manning, that goes beyond the scope of those 3 issues that Mr. Rosenstein has raised? MR. MANNING: No. | don't agree that these are confined to the 3 issues. | don't agree that they -- these are in accordance with the concessions that you have listed in 18A through to H. THE COURT: This is your opportunity to give me your submissions, not just to say | don't agree with anything. But the point that | am saying to you, sir, is that Mr. Rosenstein | think — has been fair in saying, this court is deciding about judgments that are enforceable in Ontario, and so that issue really has nothing to do with the enforcement of any judgement in Ontario, and insofar as you would like there being a statement which for the purpose of any other court is obiter-- that is an alive issue. Whether or not the court anywhere else would care what anybody in this court said is a whole other matter anyway. But assuming that they did, that is something that he's not conceding, and in any event isn't really relevant to what you're seeking in Ontario. So | think what we need to be concerned about is: Are there issues that would impede you from getting any relief that this court could possibly offer you, and he says that there are only those 3 issues insofar as the acknowledgements are concerned. THE COURT: the Defendants have conceded that there are only 3 issues that they can test in challenging the Plaintiff's request for an order of this Court that he is entitled to enforce against the assets of Mr. Kirchberger located in Ontario in the manner and to the extent as if he had obtained a judgment against Mr. Kirchberger for the payment of money in the amount of the liability assumed in the acknowledgment. And those 3 issues are: One, whether the Berlin Hypo Bank was the holder of all of the acknowledgments; two, whether the acknowledgments were properly assigned to Mr. Bieberstein; and three, the balance owing on the debts for which Mr. Kirchberger is liable under the acknowledgments. See Transcript of Proceedings, at pp. 169-72, 199 (emphasis supplied). Thus, it is clear from the transcript of proceedings that it was the Court’s intent that the Judgment is for monetary amount capable of being domesticated in other jurisdictions. The Judgment itself and the Reasons for Judgment both refer to monetary amounts to which KIRCHBERGER is obligated. WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, respectfully requests that this Court enter an Order denying each of the Defendants, GABRIEL KIRCHBERGER and CAROL DEVILLE’s, Motions to Dismiss, and award all such other and further relief that the Court deems just and proper. DATED this 4th day of March, 2019. WOODS, WEIDENMILLER, MICHETTI & RUDNICK, LLP By: /s/ Mark A. Slack Mark A. Slack Florida Bar No. 394785 9045 Strada Stell Court, Suite 400 Naples, FL 34109 (239) 325-4070 — Telephone (239) 325-4080 — Facsimile mslack@lawfirmnaples.com msilvestri@lawfirmnaples.com service@lawfirmnaples.com 10 CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 4th day of March, 2019, a true and correct copy of the foregoing has been electronically filed with the Clerk of Court via the Florida Courts E-Filing Portal which will send notification to the following counsel of record: Robert W. Segur, Esq., Legal@segurlaw.net and David K. Oaks, Esq., doaksesq@comcast.net. WOODS, WEIDENMILLER, MICHETTI & RUDNICK, LLP By: /s/ Mark A. Slack Mark A. Slack Florida Bar No. 394785 9045 Strada Stell Court, Suite 400 Naples, FL 34109 (239) 325-4070 — Telephone (239) 325-4080 — Facsimile mslack@lawfirmnaples.com msilvestri@lawfirmnaples.com service@lawfirmnaples.com 11