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Filing # 109728381 E-Filed 07/02/2020 12:16:43 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
CASE NO. 17-CA-917
HARRY BIEBERSTEIN,
Plaintiff,
Vv.
GABRIEL KIRCHBERGER, CAROL DEVILLE,
SOUTHERN SHORES ENTERPRISES, LLC, a
Florida limited liability company and
MOONSTONE HOLDINGS, LLC, a
Nevada limited liability company,
Defendants.
earn nase one nnttnen a
GOLDEN KEY PROPERTIES, LLC’S AND ANDREAS KIRCHBERGER’S MOTION
TO DISMISS THIRD AMENDED COMPLAINT, FOR A MORE DEFINITE
STATEMENT AND TO STRIKE CERTAIN EXHIBITS THEREFROM
Golden Key Properties, LLC (“Golden”) and Andreas Kirchberger (“Andreas”), through
counsel, file this Motion to Dismiss the Third Amended Complaint, for a More Definite
Statement and to Strike Certain Exhibits Therefrom and state:
Motion To Dismiss Based On Plaintiff’s Violations of Rule 1.110(b)
1 Rule 1.110(b), Fla. R. Civ. P. states in relevant part that a “pleading. ..shall
contain...a short and plain statement of the ultimate facts showing that the pleader is
entitled to relief.
In Paragraphs 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19 and 26 of the Third Amended
Complaint, Plaintiff has alleged numerous facts about Defendants Carol DeVille
(“DeVille”), Christine Frazer (“Frazer”), Niclas X. Kirchberger (“Niclas”),
CASE NO. 17-CA-917
Moonstone Holdings, LLC. (“Moonstone”), Southern Shores Enterprises, LLC
(“Southern”) and Blue Breeze, LLC (“Blue Breeze”). These irrelevant-to-Golden-
and-Andreas, confusing and voluminous allegations pertaining to DeVille, Frazer,
Niclas, Moonstone, Southern and Blue Breeze have been re-alleged in Count VII of
the Third Amended Complaint, which is the only count seeking relief against Golden
and Andreas.
In Paragraphs 1-34 of the Third Amended Complaint, Plaintiff has attached the
following Exhibits pertaining to DeVille, Frazer, Niclas, Moonstone, Southern and
Blue Breeze: Exhibits “1-A”, “1-B”, “2”, “9”, “10”, “11”, “12”, “13”, “14”, “15”,
“16”, “17, “18”, “19”, “20”, “21”, 22”, “23”, “24”, “25”, "26, “27”, 28”, 29”,
“30”, “31”, “32”, “33”, “34”, “35”, “36”, “37”, “38”, “39”, “40”, “41, 42”, «43%,
“44”, “45” and “46”, These irrelevant-to-Golden-and-Andreas, confusing and
voluminous Exhibits pertaining to DeVille, Frazer, Niclas, Moonstone, Southern and
Blue Breeze have been re-alleged in Count VIII of the Third Amended Complaint,
which, again, is the only count seeking relief against Golden and Andreas.
In summary, in the only count pleaded against Golden and Andreas, Plaintiff has re-
alleged 12 lengthy paragraphs and attached 41 Exhibits that pertain to DeVille,
Frazer, Niclas, Moonstone, Southern and Blue Breeze, not to Golden and Andreas.
Further, none of such 41 Exhibits are being sued upon by Plaintiff.
As noted in Gerentine v. Coastal Security Systems, 529 So.2d 1191, 1193 (Fla. 5®
DCA 1988), the Third Amended Complaint is “verbose and replete with evidentiary
rather than ultimate facts.” In Gerentine, the trial court dismissed a pleading because
it “violated the rules of pleading as set forth in section 1.110(b), Florida Rules of
CASE NO. 17-CA-917
Civil Procedure, in that each count, not only incorporated by reference the
preliminary allegations of the complaint, but also incorporated by reference the
allegations of each preceding count”, which dismissal was sustained by the Fifth
District. Jd. at 1194.
“By the time a defendant reached the sixth count of the complaint, he would find
himself faced with 72 previous paragraphs, many with numerous subdivisions, replete
with evidentiary facts and together forming a total morass which would make it
difficult if not impossible to respond to.” fd. at 1194.
“The First District properly criticized such procedure in Chaires v. North Florida
National Bank, 432 So.2d 183 (Fla. 1* DCA 1983) when it said: “Such is improper.
By the time the beleaguered reader gets to the fifth count, he is having to cope with
presumably five causes of action asserted in one count. This practice is an
unnecessary hindrance to trial courts’ efforts to determine the facial validity of the
various causes being asserted and serves only to confuse and delay.” Jd. at 1194,
In addition to being objectionably “verbose and replete with evidentiary rather than
ultimate facts” and attaching at least 41 Exhibits that are not being sued upon, the
Third Amended Complaint improperly combines a suit on seven different “Debt
Acknowledgments” (Exhibits “6-A”, “6-B”, “6-C”, “6-D”, “6-E”, “6-F” and “6-G”)
in the same count. All seven of these separate and distinct instruments are sued upon
in Count I and mentioned in Paragraphs 27, 28, 29, 37, 38 and 39, which are re-
alleged in Count VIII against Golden and Andreas, and Plaintiff must prevail on
Count I to have any claims whatsoever against Golden or Andreas.
9 “Because the second amended complaint did not provide short and plain statements of
CASE NO. 17-CA-917
the ultimate facts as required by the rules of pleading, the court correctly dismissed
it.” Id. at 1194. Here, as in Gerentine, the Third Amended Complaint violates Rule
1.110(b) and should be dismissed.
Motion To Dismiss Based On Plaintiff’s Violations of Rule 1.110(!)
10. Rule 1.110(£), Fla. R. Civ. P. states that “Each claim founded upon a separate
transaction. ..shall be stated in a separate count...when a separation facilitates the
clear presentation of the matter set forth.”
11 The Third Amended Complaint improperly combines a suit on seven separate and
distinct “Debt Acknowledgments” (Exhibits “6-A”, “6-B”, “6-C”, “6-D”, “6-E”, “6-
F” and “6-G’) in Count I. All seven of these separate and distinct debt instruments are
sued upon in Count ] against Gabriel Kirchberger (“Gabriel”) and are mentioned in
Paragraphs 27, 28, 29, 37, 38 and 39, which paragraphs are re-alleged in Count VIII
against Golden and Andreas.
12 “A party should plead each distinct claim in a separate count...” K.R. Exchange
Services, Ine. v. Fuerst, Humphrey, Ittelman, PL, 48 So.3d 889 (Fla. 3 DCA 2010).
13 The “task of the trial court was made more difficult because the appellants’ amended
complaint improperly attempts to state in a single count separate causes of action for
vicarious liability and for negligent entrustment. Rule 1.110(f, Fla. R. Civ. P.” Dubus
v. McArthur, 682 So.2d 1246 (Fla. 1* DCA 1996).
14 Plaintiff has sued on seven separate and distinct Debt Acknowledgements in Count I
against Gabriel, and such instruments are mentioned in Paragraphs 27, 28, 29, 37, 38
and 39, which paragraphs are re-alleged in Count VIII against Golden and Andreas,
and Plaintiff must prevail on Count I against Gabriel in order to have any claims
CASE NO. 17-CA-917
whatsoever against Golden or Andreas.
15. Here, as in K.R. Exchange Services, Inc, and Dubus, the Third Amended Complaint
violates Rule 1.110(f} and should be dismissed.
Motion To Dismiss Because Exhibits Contradict Allegations of Pleading
16. In paragraph 27 of the Third Amended Complaint, Plaintiff has pleaded that Gabriel
executed the seven (7) notarized Debt Acknowledgements attached thereto as
Exhibits “6-A” through “6-G.”
17 Contrary to the allegations in Paragraph 27, Exhibit “6-B” expressly states that
Gabriel signed that particular Debt Acknowledgement “acting not in his own name
but for IMKA Immobilien Besitz-und Verwerungsgesellschaft.” Although it states
within the document that Gabriel “assumes personal liability for payment of a cash
amount equivalent to the amount of the land charge,” it is clear that Gabriel never
signed in his own name, so he is not liable thereunder.
18. Contrary to the allegations in Paragraph 27, Exhibit “6-G” expressly states that
Gabriel and a third party signed that particular Debt Acknowledgement acting “not in
our name but for Wohnungbaugesellschaft Hohenshonhausen mbH,” which is
referred to as “the company.” Again, since Gabriel never signed in his own name, he
is not liable thereunder.
19 “When exhibits are attached to a complaint, the contents of the exhibits control over
the allegations of the complaint.” BAC Funding Consortium v. Jean-Jacques, 28
So.3d 936 (Fla. 2nd DCA 2010).
20. “Where complaint allegations are contradicted by exhibits attached to the complaint,
the plain meaning of the exhibits control[s] and may be the basis for a motion to
CASE NO, 17-CA-917
dismiss.” Id. at 938, citing Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401
(Fla. 2" DCA 2000).
21 Exhibits “6-B” and “6-G” materially contradict the allegations of the Third Amended
Complaint, and the exhibits control over such allegations, thereby rendering the Third
Amended Complaint subject to dismissal, and Golden and Andreas move
accordingly.
Motion To Dismiss Based On Plaintiffs Violations of Rule 1.110(g)
22 Rule 1.110(g), Fla. R. Civ. P. states that a “pleader may set up in the same action as
many claims or causes of action...in the same right as the pleader has.”
23 “This rule ‘forbids the joinder of causes which arise out of separate rights.’” Dept.
Insurance of Florida v. Coopers & Lybrand, 570 So.2d 369 (Fla. 3% DCA 1990).
24. “Causes of action accruing to a plaintiff in different capacities must be brought
separately regardless of whether or not the causes of action arise ‘out of the same
occurrence because the respective causes of action are not ‘in the same right.”” Jd at
370.
25. Here, notwithstanding his allegation in Paragraph 28 that “Plaintiff is the assignee of
the civil and commercial debt owed by Gabriel to Berlin Hypo Bank and all choses in
action with respect to the actionable wrongs committed by Gabriel against Berlin
Hypo Bank,” the exhibits to the Third Amended Complaint reveal that Plaintiff is, in
fact, suing in two different capacities: (i) as the purported assignee of Berlin-
Hannoversche Hypothekenbank (“Berlin Hypo Bank”) under Exhibits “6-A”, “6-D”,
“6-E”, “6-F” and “6-G”; and (ii) as the purported assignee of a different bank named
“Berliner Bank AG (Ltd.)” under Exhibits “6-B” and “6-C”.
CASE NO. 17-CA-917
26. “When exhibits are attached to a complaint, the contents of the exhibits control over
the allegations of the complaint.” BAC Funding Consortium v, Jean-Jacques, 28
So.3d 936 (Fla. 2™ DCA 2010).
27 Here, Plaintiff is suing in the capacity of the assignee of Berlin Hypo Bank under
Exhibits “6-A”, “6-D”, “6-E”, “6-F” and “6-G”, while simultaneously suing in the
different capacity of the assignee of Berliner Bank AG (Ltd.) under Exhibits “6-B”
and “6-C”, By suing in the same case in these two different capacities, Plaintiff has
violated Rule 1.110(g) and the Third Amended Complaint is defective.
28 In Dept. of Insurance, supra, the Third District noted that “the Department
improperly attempted to sue in more than one capacity in one lawsuit.” The Third
District found that the “trial court found that the Department could not sue in more
than one capacity in the same action” and that the “trial court correctly directed the
Department to choose in which capacity it would pursue this action and dismissed the
claims the Department elected not to pursue in this action without prejudice to the
Department to institute separate actions on the dismissed causes of action.” /d. at 371.
29 Although Plaintiff alleged in Paragraph 28 that Exhibit “7” reflects that he is the
assignee of Berlin Hypo Bank, the translation of page 1 of that exhibit in fact states:
“We herewith assign to Berliner-Hannoversche Hypothekenbank AG (Ltd.).” Further.
although page 3 of Exhibit “7” states “Hereby we assign to Harry Bieberstein all of
the causes of Action contained in the attached statement of claim versus Mr. Gabriel
Kirchberger...,” no statement of claim is attached thereto. These exhibits control over
the allegations in the Third Amended Complaint. BAC Funding Consortium Inc.,
supra at 938,
CASE NO. 17-CA-917
30. Based on the controlling exhibits attached to the Third Amended Complaint, Plaintiff
appears to be suing in two different capacities as the assignee of two different banks
and, accordingly this Court should make him choose in which capacity he wishes to
proceed, with his claims under the second capacity being dismissed. Jd. at 371.
Motion to Dismiss for Failure to Allege Cause of Action Under F.S. 726.105(1)(a)
31. In order to establish a fraudulent conveyance under Fla. Stat. ch. 726.105(1)(a), it is
necessary for Plaintiff to establish that: (1) there was a creditor to be defrauded: (2) a
debtor intending fraud; and (3) a conveyance of property which could have been
applicable to the payment of the debt due. Nationsbank, N.A. v. Coastal Utilities,
Inc.,814 So. 2d 1227 (Fla. 4" DCA 2002).
32. Plaintiff's claims against Gabriel originated with German “Debt Acknowledgements”
that Plaintiff sued upon in Canada, copies being attached to his pleading as Exhibits
6A through 6G, Plaintiff's Canadian lawsuit on the “Debt Acknowledgements”
resulted in the Canadian judgment attached to his pleading as Exhibit “8”. Since
Plaintiff's claims herein are predicated upon the same “Debt Acknowledgements”
that Plaintiff sued upon to obtain his Canadian judgment, such “Debt
Acknowledgements” (Exhibits 6A — 6G) have merged into such Canadian judgment
(Exhibit 8) and are not enforceable separate therefrom. JP Morgan Chase Bank, N.A.
y. Hernandez, 99 So0.3d 508 (Fla. 3rd DCA 2011); Diamond R. Fertilizer Co., Inc. v.
Lake Packing Partnership, Day Packing, 743 So.2d 547 (Fla. 5th DCA 1999).
33 Further, Plaintiff has failed to allege that assets allegedly fraudulently conveyed by
Golden or Andreas would have otherwise been available to pay the debt due.
34. As such, Plaintiff has failed to state a cause of action against Golden and Andreas and
CASE NO. 17-CA-917
his claim against them should be dismissed.
Motion To Dismiss For Failure To State A Cause Of Action or
For A More Definite Statement
35 In Paragraph 20 of the Third Amended Complaint, Plaintiff defined “Golden” as
Golden Key Properties, LLC (“the LLC”).
36 In Paragraph 21, Plaintiff pleaded that Golden was formed on March 1, 2013 and that
prior thereto, Gabriel, individually, did business as Golden Key Real Estate Trust.
37 In Paragraph 22, Plaintiff pleaded that on or about March 1, 2013, Gabriel
transferred “the assets and his ownership of those assets to Golden Key and Andreas”.
This allegation makes no sense, as “Golden Key” was not defined and the
unidentified “assets” were neither described nor defined. Similarly, although “Golden
Key” was never defined, Plaintiff refers to it repeatedly in Paragraphs 23 and 24.
38, Since Plaintiff defined “Golden” as Golden Key Properties, LLC, without defining
the term “Golden Key”, by the process of elimination Plaintiff's reference to “Golden
Key” must mean Golden Key Real Estate Trust. As such, Plaintiff has apparently
alleged that Gabriel (who allegedly individually did business as Golden Key Real
Estate Trust) transferred unidentified assets to himself (again, assuming that “Golden
Key”, never otherwise defined, is Golden Key Real Estate Trust) and to Andreas.
39 Plaintiff does not allege in Paragraph 22 which assets were transferred to “Golden
Key” and which assets were transferred to Andreas.
40. Plaintiff does not describe the alleged Paragraph 23 “in trust” relationship with any
plain facts.
41. In paragraphs 88 through 92 of Count VII, Plaintiff repeatedly refers to “Golden” but
CASE NO. 17-CA-917
since he has re-alleged the confusing and contradictory allegations of Paragraphs 20,
21, 22, 23 and 24 therein, it is unclear whether the “Golden” referred to in Count VIII
means Golden Key Properties, LLC or the Golden Key Real Estate Trust.
42 Plaintiff is apparently basing at least part of his fraudulent conveyance claims on a
transfer of unidentified assets from Gabriel to himself (as “Golden Key”, which is
apparently a reference to Golden Key Real Estate Trust, which was Gabriel’s alleged
“DBA”); as such, Plaintiff's claims must be dismissed for failure to state a cause of
action.
43 Independent of the foregoing, by failing to describe in plain terms the “assets” that
were allegedly transferred, Plaintiff's claims must be dismissed for failure to state a
cause of action.
44. Independent of the foregoing, Plaintiff has failed to state a cause of action by alleging
in Paragraph 23 that “In February 2013, Gabriel and Andreas entered into an
agreement pursuant to which Andreas holds Gabriel’s interest in Golden Key in
trust”, while alleging in Paragraph 21 that the LLC, “Golden”, was formed on March
1, 2013, and while alleging in Paragraph 24 that “Gabriel’s ownership of Golden Key
has been disguised in annual reports filed with Florida’s Secretary of State” which
“prevented Bieberstein from discovering” some completely unidentified “transfer”
from Gabriel to Andreas and Golden Key.”
45 Plaintiff has not identified the “transfer” he refers to in paragraph 24.
46. Paragraphs 20, 21, 22, 23, 24, 88, 89, 91 and 92 of the Third Amended Complaint
make no sense and movants cannot possibly respond thereto. Plaintiff has not
differentiated between Golden Key Properties, LLC, Gabriel’s alleged “DBA” known
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CASE NO. 17-CA-917
as Golden Key Real Estate Trust and the “in trust” relationship mentioned in
Paragraph 23.
47. While failing to differentiate among “Golden”, “Golden Key”, Golden Key
Properties, LLC and Golden Key Real Estate Trust, Plaintiff has pleaded that
Andreas holds Gabriel’s ownership interest in “Golden Key” (The LLC? The Golden
Key Trust?) “in trust” (without describing this other supposed “trust” with any
particularity whatsoever).
48 Plaintiff has insinuated in Paragraph 24 that the unidentified “Golden Key” is the
LLC, which contradicts his definition of the LLC as “Golden”, while alleging in
Paragraph 23 that in February 2013 Andreas started to hold “Golden Key” “in trust.”
(How could Andreas hold Golden Key Properties, LLC “in trust” before it was even
formed? What does “in trust” even mean? Who is the settlor, and what are the trust
assets?) Clearly, these confusing and apparently contradictory allegations render the
Third Amended Complaint subject to dismissal for failure to state a cause of action.
49. Rule 1.140(e), Fla. R. Civ. P. states “If a pleading to which a responsive pleading is
permitted is so vague or ambiguous that a party cannot reasonably be required to
frame a responsive pleading, that party may move for a more definite statement
before interposing a responsive pleading”, and that the motion “must point out the
defects complained of and the details desired.”
50 The defects in Paragraphs 20, 21, 22, 23, 24, 88, 89, 90 are pointed out above and the
details that are desired by Golden and Andreas are: (i) What specific “assets” were
allegedly transferred on or about March 1, 2013; (ii) Which particular “assets” were
allegedly transferred on or about March 1, 2013 to Andreas; (iii) Which particular
il
CASE NO. 17-CA-917
assets were allegedly transferred on or about March 1, 2013 to “Golden Key”, and
exactly who or what is the “Golden Key” that Plaintiff refers to in Paragraph 22; (iv)
What were the terms of the alleged “agreement” mentioned in Paragraph 23; (v) What
were the terms of the “in trust” relationship described in Paragraph 23; (vi) What
exact “ownership interest” respecting what exact assets is Plaintiff pleading about in
Paragraph 23; (vii) What exact “business” did Gabriel, individually, allegedly
conduct before March 1, 2013 “under the name Golden Key Real Estate Trust”; (viii)
Is Plaintiff alleging that there was in fact a trust named “Golden Key Real Estate
Trust” or is he alleging that the name “Golden Key Real Estate Trust” was simply a
“DBA” used by Gabriel, individually; (ix) What exact “transfer” is Plaintiff referring
to in Paragraph 24; (x) Which “Golden Key” is Plaintiff referring to in Paragraph 24,
Golden Key Properties, LLC or the Golden Key Real Estate Trust; (xi) What
“Golden” is Plaintiff referring to in Paragraphs 88, 89, 90, 91 and 92.
51 Plaintiff has violated Rule 1.110(b), Fla. R. Civ. P. in Paragraphs 20-24 and 88-92 of
the Third Amended Complaint, as such allegations are the exact opposite of “a short
and plain statement of the ultimate facts showing that the pleader is entitled to relief”
and, accordingly, the Third Amended Complaint should be dismissed on this basis
alone.
Motion to Strike Under Rule 1,130(a) and Rule 1,140(/)
52 Rule 1.130(a), Fla. R. Civ. P states that while copies of contracts, etc., sued upon
must be attached to a pleading, it also states that “No documents shall be
unnecessarily annexed as exhibits” and that “The pleadings must contain no
unnecessary recitals of deeds, documents, contracts or other instruments.”
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CASE NO. 17-CA-917
53. Rule 1.140(f), Fla. R. Civ. P. states that a party may move to strike or the court may
strike redundant, immaterial or impertinent matter from any pleading at any time.
54. In paragraph 29 of the Third Amended Complaint, Plaintiff has referred to a Canadian
judgment that he obtained against Gabriel, and he has attached a copy as Exhibit “8”.
Since Plaintiff is not suing to enforce this Canadian judgment, it is unnecessarily
attached to his pleading in violation of Rule 1.130(a), and it should therefore be
stricken under Rule 1.140(f).
55. By attaching the Canadian judgment as an Exhibit, Plaintiff has created confusion as
to whether he is in fact suing on it, and unless he is suing on it, it is redundant and
immaterial and should be stricken.
56. By pleading in Paragraph 29 that the Canadian judgment declared that the Debt
Acknowledgements being suing upon herein are enforceable and that Plaintiff is
entitled to enforce them, Plaintiff is pleading in direct contravention of a prior order
of this Court. On July 24, 2018, this Court determined that such Canadian judgment
could not be enforced in Florida, which ruling was proper and acts herein as the law
of the case. Florida Dept. of Transportation v. Juliano, 801 So.2d 101 (Fla. 2001).
57. This Court has already found that the Canadian judgment cannot be domesticated in
Charlotte County, so there is no valid reason for it to be attached as an Exhibit to the
Third Amended Complaint or referred to therein as “enforceable”.
58. Golden and Andreas request an order striking such Canadian judgment as an exhibit
and striking all references to it and its purported enforceability from the Third
Amended Complaint.
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CASE NO. 17-CA-917
Golden and Andreas Have Standing to Defend Claims Made Against Gabriel
59. Plaintiff may argue that Golden and Andreas lack standing to defend against claims
made by Plaintiff against Gabriel.
60. The Second District “has not previously — in foreclosure cases or otherwise —
restricted defendant’s right to demand that the plaintiff prove its cause of action based
on a case-by-case or issue-by-issue analysis of the defendant’s standing to defend.
That would raise serious concerns of procedural due process.” Green Emerald
Homes, LLC y, 21" Mortgage Corp., 2D17-2192 (Fla. 2"! DCA 2019).
61 “In the context of civil litigation...the litigants must be afforded...the right to
meaningfully introduce evidence, cross-examine witnesses, and be heard on questions
of law.” Id.
62 In Green Emerald, the party afforded the right to fully defend did not sign any loan
documents but was the owner of property that was being foreclosed. “If the owner of
property subject to a mortgage foreclosure action is so important as to be
indispensable to a just adjudication, due process surely requires that the owner be
permitted to defend the suit.” Jd.
63. Based on Green Emerald, as the owners of assets that are under attack by Plaintiff via
direct claims made by Plaintiff against Gabriel, Golden and Andreas can defend. The
limitations imposed on non-parties to debt instruments discussed in Green Emerald,
to wit: disputes as to the validity of pre-recorded mortgages and the inability of non-
parties to enforce contract provisions are inapplicable and do not restrict the rights of
Golden and Andreas to defend herein.
14
CASE NO. 17-CA-917
WHEREFORE, Golden and Andreas respectfully request that this Court dismiss the Third
Amended Complaint and/or compel a More Definite Statement, strike the Canadian judgment as
an exhibit and all references thereto, and request such other relief as the Court deems
appropriate.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been filed with
the Clerk of Court via the Florida Courts E-Filing Portal which will serve as a notice of
electronic filing upon all counsel of record this_2"4_ day of July, 2020.
BAUR & KLEIN, P.A.
Attorneys for Golden Key Properties, LLC
and Andreas Kirchberger
New World Tower, Suite 2100
100 North Biscayne Boulevard
Miami, Florida 33132
Phone: (305) 377-3561 / Fax: (305) 371-4380
By: Lo
4
CHRISTOPHER J. KLEIN _
Fla Bar. No.: 311855
geare WY: AW. m
15
Preview
Filing # 109728381 E-Filed 07/02/2020 12:16:43 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION CASE NO. 17-CA-917 HARRY BIEBERSTEIN, Plaintiff, Vv. GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, LLC, a Florida limited liability company and MOONSTONE HOLDINGS, LLC, a Nevada limited liability company, Defendants. earn nase one nnttnen a GOLDEN KEY PROPERTIES, LLC’S AND ANDREAS KIRCHBERGER’S MOTION TO DISMISS THIRD AMENDED COMPLAINT, FOR A MORE DEFINITE STATEMENT AND TO STRIKE CERTAIN EXHIBITS THEREFROM Golden Key Properties, LLC (“Golden”) and Andreas Kirchberger (“Andreas”), through counsel, file this Motion to Dismiss the Third Amended Complaint, for a More Definite Statement and to Strike Certain Exhibits Therefrom and state: Motion To Dismiss Based On Plaintiff’s Violations of Rule 1.110(b) 1 Rule 1.110(b), Fla. R. Civ. P. states in relevant part that a “pleading. ..shall contain...a short and plain statement of the ultimate facts showing that the pleader is entitled to relief. In Paragraphs 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19 and 26 of the Third Amended Complaint, Plaintiff has alleged numerous facts about Defendants Carol DeVille (“DeVille”), Christine Frazer (“Frazer”), Niclas X. Kirchberger (“Niclas”), CASE NO. 17-CA-917 Moonstone Holdings, LLC. (“Moonstone”), Southern Shores Enterprises, LLC (“Southern”) and Blue Breeze, LLC (“Blue Breeze”). These irrelevant-to-Golden- and-Andreas, confusing and voluminous allegations pertaining to DeVille, Frazer, Niclas, Moonstone, Southern and Blue Breeze have been re-alleged in Count VII of the Third Amended Complaint, which is the only count seeking relief against Golden and Andreas. In Paragraphs 1-34 of the Third Amended Complaint, Plaintiff has attached the following Exhibits pertaining to DeVille, Frazer, Niclas, Moonstone, Southern and Blue Breeze: Exhibits “1-A”, “1-B”, “2”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”, “17, “18”, “19”, “20”, “21”, 22”, “23”, “24”, “25”, "26, “27”, 28”, 29”, “30”, “31”, “32”, “33”, “34”, “35”, “36”, “37”, “38”, “39”, “40”, “41, 42”, «43%, “44”, “45” and “46”, These irrelevant-to-Golden-and-Andreas, confusing and voluminous Exhibits pertaining to DeVille, Frazer, Niclas, Moonstone, Southern and Blue Breeze have been re-alleged in Count VIII of the Third Amended Complaint, which, again, is the only count seeking relief against Golden and Andreas. In summary, in the only count pleaded against Golden and Andreas, Plaintiff has re- alleged 12 lengthy paragraphs and attached 41 Exhibits that pertain to DeVille, Frazer, Niclas, Moonstone, Southern and Blue Breeze, not to Golden and Andreas. Further, none of such 41 Exhibits are being sued upon by Plaintiff. As noted in Gerentine v. Coastal Security Systems, 529 So.2d 1191, 1193 (Fla. 5® DCA 1988), the Third Amended Complaint is “verbose and replete with evidentiary rather than ultimate facts.” In Gerentine, the trial court dismissed a pleading because it “violated the rules of pleading as set forth in section 1.110(b), Florida Rules of CASE NO. 17-CA-917 Civil Procedure, in that each count, not only incorporated by reference the preliminary allegations of the complaint, but also incorporated by reference the allegations of each preceding count”, which dismissal was sustained by the Fifth District. Jd. at 1194. “By the time a defendant reached the sixth count of the complaint, he would find himself faced with 72 previous paragraphs, many with numerous subdivisions, replete with evidentiary facts and together forming a total morass which would make it difficult if not impossible to respond to.” fd. at 1194. “The First District properly criticized such procedure in Chaires v. North Florida National Bank, 432 So.2d 183 (Fla. 1* DCA 1983) when it said: “Such is improper. By the time the beleaguered reader gets to the fifth count, he is having to cope with presumably five causes of action asserted in one count. This practice is an unnecessary hindrance to trial courts’ efforts to determine the facial validity of the various causes being asserted and serves only to confuse and delay.” Jd. at 1194, In addition to being objectionably “verbose and replete with evidentiary rather than ultimate facts” and attaching at least 41 Exhibits that are not being sued upon, the Third Amended Complaint improperly combines a suit on seven different “Debt Acknowledgments” (Exhibits “6-A”, “6-B”, “6-C”, “6-D”, “6-E”, “6-F” and “6-G”) in the same count. All seven of these separate and distinct instruments are sued upon in Count I and mentioned in Paragraphs 27, 28, 29, 37, 38 and 39, which are re- alleged in Count VIII against Golden and Andreas, and Plaintiff must prevail on Count I to have any claims whatsoever against Golden or Andreas. 9 “Because the second amended complaint did not provide short and plain statements of CASE NO. 17-CA-917 the ultimate facts as required by the rules of pleading, the court correctly dismissed it.” Id. at 1194. Here, as in Gerentine, the Third Amended Complaint violates Rule 1.110(b) and should be dismissed. Motion To Dismiss Based On Plaintiff’s Violations of Rule 1.110(!) 10. Rule 1.110(£), Fla. R. Civ. P. states that “Each claim founded upon a separate transaction. ..shall be stated in a separate count...when a separation facilitates the clear presentation of the matter set forth.” 11 The Third Amended Complaint improperly combines a suit on seven separate and distinct “Debt Acknowledgments” (Exhibits “6-A”, “6-B”, “6-C”, “6-D”, “6-E”, “6- F” and “6-G’) in Count I. All seven of these separate and distinct debt instruments are sued upon in Count ] against Gabriel Kirchberger (“Gabriel”) and are mentioned in Paragraphs 27, 28, 29, 37, 38 and 39, which paragraphs are re-alleged in Count VIII against Golden and Andreas. 12 “A party should plead each distinct claim in a separate count...” K.R. Exchange Services, Ine. v. Fuerst, Humphrey, Ittelman, PL, 48 So.3d 889 (Fla. 3 DCA 2010). 13 The “task of the trial court was made more difficult because the appellants’ amended complaint improperly attempts to state in a single count separate causes of action for vicarious liability and for negligent entrustment. Rule 1.110(f, Fla. R. Civ. P.” Dubus v. McArthur, 682 So.2d 1246 (Fla. 1* DCA 1996). 14 Plaintiff has sued on seven separate and distinct Debt Acknowledgements in Count I against Gabriel, and such instruments are mentioned in Paragraphs 27, 28, 29, 37, 38 and 39, which paragraphs are re-alleged in Count VIII against Golden and Andreas, and Plaintiff must prevail on Count I against Gabriel in order to have any claims CASE NO. 17-CA-917 whatsoever against Golden or Andreas. 15. Here, as in K.R. Exchange Services, Inc, and Dubus, the Third Amended Complaint violates Rule 1.110(f} and should be dismissed. Motion To Dismiss Because Exhibits Contradict Allegations of Pleading 16. In paragraph 27 of the Third Amended Complaint, Plaintiff has pleaded that Gabriel executed the seven (7) notarized Debt Acknowledgements attached thereto as Exhibits “6-A” through “6-G.” 17 Contrary to the allegations in Paragraph 27, Exhibit “6-B” expressly states that Gabriel signed that particular Debt Acknowledgement “acting not in his own name but for IMKA Immobilien Besitz-und Verwerungsgesellschaft.” Although it states within the document that Gabriel “assumes personal liability for payment of a cash amount equivalent to the amount of the land charge,” it is clear that Gabriel never signed in his own name, so he is not liable thereunder. 18. Contrary to the allegations in Paragraph 27, Exhibit “6-G” expressly states that Gabriel and a third party signed that particular Debt Acknowledgement acting “not in our name but for Wohnungbaugesellschaft Hohenshonhausen mbH,” which is referred to as “the company.” Again, since Gabriel never signed in his own name, he is not liable thereunder. 19 “When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint.” BAC Funding Consortium v. Jean-Jacques, 28 So.3d 936 (Fla. 2nd DCA 2010). 20. “Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to CASE NO, 17-CA-917 dismiss.” Id. at 938, citing Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401 (Fla. 2" DCA 2000). 21 Exhibits “6-B” and “6-G” materially contradict the allegations of the Third Amended Complaint, and the exhibits control over such allegations, thereby rendering the Third Amended Complaint subject to dismissal, and Golden and Andreas move accordingly. Motion To Dismiss Based On Plaintiffs Violations of Rule 1.110(g) 22 Rule 1.110(g), Fla. R. Civ. P. states that a “pleader may set up in the same action as many claims or causes of action...in the same right as the pleader has.” 23 “This rule ‘forbids the joinder of causes which arise out of separate rights.’” Dept. Insurance of Florida v. Coopers & Lybrand, 570 So.2d 369 (Fla. 3% DCA 1990). 24. “Causes of action accruing to a plaintiff in different capacities must be brought separately regardless of whether or not the causes of action arise ‘out of the same occurrence because the respective causes of action are not ‘in the same right.”” Jd at 370. 25. Here, notwithstanding his allegation in Paragraph 28 that “Plaintiff is the assignee of the civil and commercial debt owed by Gabriel to Berlin Hypo Bank and all choses in action with respect to the actionable wrongs committed by Gabriel against Berlin Hypo Bank,” the exhibits to the Third Amended Complaint reveal that Plaintiff is, in fact, suing in two different capacities: (i) as the purported assignee of Berlin- Hannoversche Hypothekenbank (“Berlin Hypo Bank”) under Exhibits “6-A”, “6-D”, “6-E”, “6-F” and “6-G”; and (ii) as the purported assignee of a different bank named “Berliner Bank AG (Ltd.)” under Exhibits “6-B” and “6-C”. CASE NO. 17-CA-917 26. “When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint.” BAC Funding Consortium v, Jean-Jacques, 28 So.3d 936 (Fla. 2™ DCA 2010). 27 Here, Plaintiff is suing in the capacity of the assignee of Berlin Hypo Bank under Exhibits “6-A”, “6-D”, “6-E”, “6-F” and “6-G”, while simultaneously suing in the different capacity of the assignee of Berliner Bank AG (Ltd.) under Exhibits “6-B” and “6-C”, By suing in the same case in these two different capacities, Plaintiff has violated Rule 1.110(g) and the Third Amended Complaint is defective. 28 In Dept. of Insurance, supra, the Third District noted that “the Department improperly attempted to sue in more than one capacity in one lawsuit.” The Third District found that the “trial court found that the Department could not sue in more than one capacity in the same action” and that the “trial court correctly directed the Department to choose in which capacity it would pursue this action and dismissed the claims the Department elected not to pursue in this action without prejudice to the Department to institute separate actions on the dismissed causes of action.” /d. at 371. 29 Although Plaintiff alleged in Paragraph 28 that Exhibit “7” reflects that he is the assignee of Berlin Hypo Bank, the translation of page 1 of that exhibit in fact states: “We herewith assign to Berliner-Hannoversche Hypothekenbank AG (Ltd.).” Further. although page 3 of Exhibit “7” states “Hereby we assign to Harry Bieberstein all of the causes of Action contained in the attached statement of claim versus Mr. Gabriel Kirchberger...,” no statement of claim is attached thereto. These exhibits control over the allegations in the Third Amended Complaint. BAC Funding Consortium Inc., supra at 938, CASE NO. 17-CA-917 30. Based on the controlling exhibits attached to the Third Amended Complaint, Plaintiff appears to be suing in two different capacities as the assignee of two different banks and, accordingly this Court should make him choose in which capacity he wishes to proceed, with his claims under the second capacity being dismissed. Jd. at 371. Motion to Dismiss for Failure to Allege Cause of Action Under F.S. 726.105(1)(a) 31. In order to establish a fraudulent conveyance under Fla. Stat. ch. 726.105(1)(a), it is necessary for Plaintiff to establish that: (1) there was a creditor to be defrauded: (2) a debtor intending fraud; and (3) a conveyance of property which could have been applicable to the payment of the debt due. Nationsbank, N.A. v. Coastal Utilities, Inc.,814 So. 2d 1227 (Fla. 4" DCA 2002). 32. Plaintiff's claims against Gabriel originated with German “Debt Acknowledgements” that Plaintiff sued upon in Canada, copies being attached to his pleading as Exhibits 6A through 6G, Plaintiff's Canadian lawsuit on the “Debt Acknowledgements” resulted in the Canadian judgment attached to his pleading as Exhibit “8”. Since Plaintiff's claims herein are predicated upon the same “Debt Acknowledgements” that Plaintiff sued upon to obtain his Canadian judgment, such “Debt Acknowledgements” (Exhibits 6A — 6G) have merged into such Canadian judgment (Exhibit 8) and are not enforceable separate therefrom. JP Morgan Chase Bank, N.A. y. Hernandez, 99 So0.3d 508 (Fla. 3rd DCA 2011); Diamond R. Fertilizer Co., Inc. v. Lake Packing Partnership, Day Packing, 743 So.2d 547 (Fla. 5th DCA 1999). 33 Further, Plaintiff has failed to allege that assets allegedly fraudulently conveyed by Golden or Andreas would have otherwise been available to pay the debt due. 34. As such, Plaintiff has failed to state a cause of action against Golden and Andreas and CASE NO. 17-CA-917 his claim against them should be dismissed. Motion To Dismiss For Failure To State A Cause Of Action or For A More Definite Statement 35 In Paragraph 20 of the Third Amended Complaint, Plaintiff defined “Golden” as Golden Key Properties, LLC (“the LLC”). 36 In Paragraph 21, Plaintiff pleaded that Golden was formed on March 1, 2013 and that prior thereto, Gabriel, individually, did business as Golden Key Real Estate Trust. 37 In Paragraph 22, Plaintiff pleaded that on or about March 1, 2013, Gabriel transferred “the assets and his ownership of those assets to Golden Key and Andreas”. This allegation makes no sense, as “Golden Key” was not defined and the unidentified “assets” were neither described nor defined. Similarly, although “Golden Key” was never defined, Plaintiff refers to it repeatedly in Paragraphs 23 and 24. 38, Since Plaintiff defined “Golden” as Golden Key Properties, LLC, without defining the term “Golden Key”, by the process of elimination Plaintiff's reference to “Golden Key” must mean Golden Key Real Estate Trust. As such, Plaintiff has apparently alleged that Gabriel (who allegedly individually did business as Golden Key Real Estate Trust) transferred unidentified assets to himself (again, assuming that “Golden Key”, never otherwise defined, is Golden Key Real Estate Trust) and to Andreas. 39 Plaintiff does not allege in Paragraph 22 which assets were transferred to “Golden Key” and which assets were transferred to Andreas. 40. Plaintiff does not describe the alleged Paragraph 23 “in trust” relationship with any plain facts. 41. In paragraphs 88 through 92 of Count VII, Plaintiff repeatedly refers to “Golden” but CASE NO. 17-CA-917 since he has re-alleged the confusing and contradictory allegations of Paragraphs 20, 21, 22, 23 and 24 therein, it is unclear whether the “Golden” referred to in Count VIII means Golden Key Properties, LLC or the Golden Key Real Estate Trust. 42 Plaintiff is apparently basing at least part of his fraudulent conveyance claims on a transfer of unidentified assets from Gabriel to himself (as “Golden Key”, which is apparently a reference to Golden Key Real Estate Trust, which was Gabriel’s alleged “DBA”); as such, Plaintiff's claims must be dismissed for failure to state a cause of action. 43 Independent of the foregoing, by failing to describe in plain terms the “assets” that were allegedly transferred, Plaintiff's claims must be dismissed for failure to state a cause of action. 44. Independent of the foregoing, Plaintiff has failed to state a cause of action by alleging in Paragraph 23 that “In February 2013, Gabriel and Andreas entered into an agreement pursuant to which Andreas holds Gabriel’s interest in Golden Key in trust”, while alleging in Paragraph 21 that the LLC, “Golden”, was formed on March 1, 2013, and while alleging in Paragraph 24 that “Gabriel’s ownership of Golden Key has been disguised in annual reports filed with Florida’s Secretary of State” which “prevented Bieberstein from discovering” some completely unidentified “transfer” from Gabriel to Andreas and Golden Key.” 45 Plaintiff has not identified the “transfer” he refers to in paragraph 24. 46. Paragraphs 20, 21, 22, 23, 24, 88, 89, 91 and 92 of the Third Amended Complaint make no sense and movants cannot possibly respond thereto. Plaintiff has not differentiated between Golden Key Properties, LLC, Gabriel’s alleged “DBA” known 10 CASE NO. 17-CA-917 as Golden Key Real Estate Trust and the “in trust” relationship mentioned in Paragraph 23. 47. While failing to differentiate among “Golden”, “Golden Key”, Golden Key Properties, LLC and Golden Key Real Estate Trust, Plaintiff has pleaded that Andreas holds Gabriel’s ownership interest in “Golden Key” (The LLC? The Golden Key Trust?) “in trust” (without describing this other supposed “trust” with any particularity whatsoever). 48 Plaintiff has insinuated in Paragraph 24 that the unidentified “Golden Key” is the LLC, which contradicts his definition of the LLC as “Golden”, while alleging in Paragraph 23 that in February 2013 Andreas started to hold “Golden Key” “in trust.” (How could Andreas hold Golden Key Properties, LLC “in trust” before it was even formed? What does “in trust” even mean? Who is the settlor, and what are the trust assets?) Clearly, these confusing and apparently contradictory allegations render the Third Amended Complaint subject to dismissal for failure to state a cause of action. 49. Rule 1.140(e), Fla. R. Civ. P. states “If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, that party may move for a more definite statement before interposing a responsive pleading”, and that the motion “must point out the defects complained of and the details desired.” 50 The defects in Paragraphs 20, 21, 22, 23, 24, 88, 89, 90 are pointed out above and the details that are desired by Golden and Andreas are: (i) What specific “assets” were allegedly transferred on or about March 1, 2013; (ii) Which particular “assets” were allegedly transferred on or about March 1, 2013 to Andreas; (iii) Which particular il CASE NO. 17-CA-917 assets were allegedly transferred on or about March 1, 2013 to “Golden Key”, and exactly who or what is the “Golden Key” that Plaintiff refers to in Paragraph 22; (iv) What were the terms of the alleged “agreement” mentioned in Paragraph 23; (v) What were the terms of the “in trust” relationship described in Paragraph 23; (vi) What exact “ownership interest” respecting what exact assets is Plaintiff pleading about in Paragraph 23; (vii) What exact “business” did Gabriel, individually, allegedly conduct before March 1, 2013 “under the name Golden Key Real Estate Trust”; (viii) Is Plaintiff alleging that there was in fact a trust named “Golden Key Real Estate Trust” or is he alleging that the name “Golden Key Real Estate Trust” was simply a “DBA” used by Gabriel, individually; (ix) What exact “transfer” is Plaintiff referring to in Paragraph 24; (x) Which “Golden Key” is Plaintiff referring to in Paragraph 24, Golden Key Properties, LLC or the Golden Key Real Estate Trust; (xi) What “Golden” is Plaintiff referring to in Paragraphs 88, 89, 90, 91 and 92. 51 Plaintiff has violated Rule 1.110(b), Fla. R. Civ. P. in Paragraphs 20-24 and 88-92 of the Third Amended Complaint, as such allegations are the exact opposite of “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief” and, accordingly, the Third Amended Complaint should be dismissed on this basis alone. Motion to Strike Under Rule 1,130(a) and Rule 1,140(/) 52 Rule 1.130(a), Fla. R. Civ. P states that while copies of contracts, etc., sued upon must be attached to a pleading, it also states that “No documents shall be unnecessarily annexed as exhibits” and that “The pleadings must contain no unnecessary recitals of deeds, documents, contracts or other instruments.” 12 CASE NO. 17-CA-917 53. Rule 1.140(f), Fla. R. Civ. P. states that a party may move to strike or the court may strike redundant, immaterial or impertinent matter from any pleading at any time. 54. In paragraph 29 of the Third Amended Complaint, Plaintiff has referred to a Canadian judgment that he obtained against Gabriel, and he has attached a copy as Exhibit “8”. Since Plaintiff is not suing to enforce this Canadian judgment, it is unnecessarily attached to his pleading in violation of Rule 1.130(a), and it should therefore be stricken under Rule 1.140(f). 55. By attaching the Canadian judgment as an Exhibit, Plaintiff has created confusion as to whether he is in fact suing on it, and unless he is suing on it, it is redundant and immaterial and should be stricken. 56. By pleading in Paragraph 29 that the Canadian judgment declared that the Debt Acknowledgements being suing upon herein are enforceable and that Plaintiff is entitled to enforce them, Plaintiff is pleading in direct contravention of a prior order of this Court. On July 24, 2018, this Court determined that such Canadian judgment could not be enforced in Florida, which ruling was proper and acts herein as the law of the case. Florida Dept. of Transportation v. Juliano, 801 So.2d 101 (Fla. 2001). 57. This Court has already found that the Canadian judgment cannot be domesticated in Charlotte County, so there is no valid reason for it to be attached as an Exhibit to the Third Amended Complaint or referred to therein as “enforceable”. 58. Golden and Andreas request an order striking such Canadian judgment as an exhibit and striking all references to it and its purported enforceability from the Third Amended Complaint. 13 CASE NO. 17-CA-917 Golden and Andreas Have Standing to Defend Claims Made Against Gabriel 59. Plaintiff may argue that Golden and Andreas lack standing to defend against claims made by Plaintiff against Gabriel. 60. The Second District “has not previously — in foreclosure cases or otherwise — restricted defendant’s right to demand that the plaintiff prove its cause of action based on a case-by-case or issue-by-issue analysis of the defendant’s standing to defend. That would raise serious concerns of procedural due process.” Green Emerald Homes, LLC y, 21" Mortgage Corp., 2D17-2192 (Fla. 2"! DCA 2019). 61 “In the context of civil litigation...the litigants must be afforded...the right to meaningfully introduce evidence, cross-examine witnesses, and be heard on questions of law.” Id. 62 In Green Emerald, the party afforded the right to fully defend did not sign any loan documents but was the owner of property that was being foreclosed. “If the owner of property subject to a mortgage foreclosure action is so important as to be indispensable to a just adjudication, due process surely requires that the owner be permitted to defend the suit.” Jd. 63. Based on Green Emerald, as the owners of assets that are under attack by Plaintiff via direct claims made by Plaintiff against Gabriel, Golden and Andreas can defend. The limitations imposed on non-parties to debt instruments discussed in Green Emerald, to wit: disputes as to the validity of pre-recorded mortgages and the inability of non- parties to enforce contract provisions are inapplicable and do not restrict the rights of Golden and Andreas to defend herein. 14 CASE NO. 17-CA-917 WHEREFORE, Golden and Andreas respectfully request that this Court dismiss the Third Amended Complaint and/or compel a More Definite Statement, strike the Canadian judgment as an exhibit and all references thereto, and request such other relief as the Court deems appropriate. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been filed with the Clerk of Court via the Florida Courts E-Filing Portal which will serve as a notice of electronic filing upon all counsel of record this_2"4_ day of July, 2020. BAUR & KLEIN, P.A. Attorneys for Golden Key Properties, LLC and Andreas Kirchberger New World Tower, Suite 2100 100 North Biscayne Boulevard Miami, Florida 33132 Phone: (305) 377-3561 / Fax: (305) 371-4380 By: Lo 4 CHRISTOPHER J. KLEIN _ Fla Bar. No.: 311855 geare WY: AW. m 15