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Filing # 106244000 E-Filed 04/14/2020 04:31:42 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
HARRY BIEBERSTEIN,
Plaintiff,
Vv. 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 REPLY TO AND MOTION TO STRIKE CAROL DEVILLE AND
SOUTHERN SHORE ENTERPRISES, LLC’S AFFIRMATIVE DEFENSES
Plaintiff, HARRY BIEBERSTEIN, by and through undersigned counsel and pursuant to
Rules 1.100(a), 1.140(b), and 1.140(h) of the Florida Rules of Civil Procedure, replies to and
moves to strike certain affirmative defenses of Defendants, CAROL DEVILLE and SOUTHERN
SHORE ENTERPRISES, LLC and states:
1 Florida Rule of Civil Procedure 1.140(b) mandates that “[e]very defense in law or
fact to a claim for relief in a pleading shall be asserted in the responsive pleading,” and “[t]he
grounds upon which the enumerated defenses are based and the substantial matters of law intended
to be argued shall be stated specifically and with particularity in the responsive pleading or
motion.” Jd.
2 Case law further provides that all affirmative defenses must be pled “with enough
specificity or factual particularity to give the plaintiff ‘fair notice’ of the defense that is being
advanced.” Woodfield v. Bowman, 193 F.3d 354, 361 (Sth Cir. 1999). Simply stated, a bare legal
conclusion or conclusory statement is, as a matter of law, legally insufficient. See, e.g., Bliss v.
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Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982)(delineating that “[c]ertainty is required
when pleading defenses ., and pleading conclusions of law unsupported by allegations of
ultimate fact is legally insufficient.”); accord Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d
136, 138 (Fla. 4th DCA 1988).
3 As the court emphasized in Zito v. Washington Fed. Sav. & Loan Assoc. of Miami
Beach, Inc., 318 So. 2d 175, 176 (Fla. 3d DCA 1975), “the requirement of certainty will be insisted
upon in the pleading of a defense; and the certainty required is that the pleader must set forth facts
in such a manner as to reasonably inform his adversary of what is proposed to be proved in order
to provide the latter with a fair opportunity to meet it and prepare evidence.”
4 Pursuant to the aforementioned case law and the Florida Rules of Civil Procedure,
Defendants, CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC affirmative
defenses 1-8 should be stricken because they are not pled with sufficient specificity and factual
particularity to comply with the legal standard.
5 The First Affirmative Defenses states:
Statute of Limitations - Plaintiffs claims as to Defendants are barred by Florida
Statute §95.11(2)(a).
Section 95.11(2)(a), Fla. Stat. only governs an “action on a judgment,” which denotes a
specific common law cause of action whereby the plaintiff obtains a new judgment to facilitate the
ultimate goal of securing satisfaction of the original cause of action. Burshan v. Nat. Union Fire
Ins. Co. of Pittsburgh, PA, 805 So. 2d 835, 840-41 (Fla. 4th DCA 2001). It is used when the
limitation period on the judgment has nearly expired in order to start the limitation period anew by
obtaining a new judgment. /d. Plaintiff has not alleged a common law action on a judgment claim
against CAROL DEVILLE or SOUTHERN SHORE ENTERPRISES, LLC. As a result, this
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defense is immaterial and impertinent which renders it subject to being stricken under Rule
1.140(h).
Moreover, because the First Affirmative Defense fails to state (a) which claim is barred to
which particular Defendant; (b) is merely a legal conclusion; and (c) fails to state any ultimate
facts, it is subject to being stricken under Rule 1.140(b).
6. The Second Affirmative Defense states:
Extinguishment of Cause of Action - Plaintiff’s claims as to Defendants
are barred by Florida Statute §726.110.
Section 726.110, Fla. Stat. sets forth a statute of repose for fraudulent transfer actions under
§§ 726.105(1)(a), 726.105(1)(b), 726.106(1), and 726.106(2), Fla. Stat. Nat'l Auto Serv. Ctrs. v.
F/R 550, LLC, 192 So. 3d 498 (Fla. 2d DCA 2016). Count II of Plaintiff's Revised Second
Amended Complaint states a cause of action against SOUTHERN SHORE ENTERPRISES, LLC
for violation of §§ 726.105(1)(a), 726.105(1)(b), and 726.106(1), Fla. Stat. The statue of repose
for claims brought under these sections is set forth in § 726.110, Fla. Stat. as four (4) years. The
transfer complained of in Count II occurred on June 2, 2015. See § 726.107, Fla. Stat. (establishing
transfer is “made” when the deed is recorded.) This action was filed on November 18, 2016 and
the Revised Second Amended Complaint relates back to that filing. Even if the Revised Second
Amended Complaint did not relate back to the original complaint, it would certain nonetheless
relate back to the Motion for Leave to File Second Amended Complaint, which was filed on May
31,2019. In either event, the claim was brought within four (4) years of the transfer. Accordingly,
this defense fails as a matter of law and is, therefore, immaterial and impertinent. On this basis,
the defense should be stricken pursuant to Rule 1.140(h).
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Moreover, this affirmative defense (a) fails to state which claim is barred to which
particular Defendant; (b) is merely a legal conclusion; and (c) fails to state any ultimate facts.
These failures render the defense subject to being stricken under Rule 1.140(b).
7
The Third Affirmative Defense states:
Bona fide purchase for value - Plaintiff's claims are barred as a transfer or
obligation is not voidable as Defendant SOUTHERN SHORES
ENTERPRISES, LLC was a bona fide purchaser for a reasonably equivalent
value as to the property referenced in Count II.
This affirmative defense fails to plead the elements of any legal defense recognized under
Florida Law and should be stricken. It is nothing more than a denial. Moreover, SOUTHERN
SHORES ENTERPRISES, LLC is estopped from claiming that it paid more than $100.00
consideration for the property as a result of its failure to pay documentary stamp taxes of more
than $0.70 as shown by Exhibit 33. The basic elements of estoppel include a false representation
or concealment of material facts. Rinker Materials Corp. v. Palmer First Nat'l Bank, 361 So. 2d
156, 157 (Fla.1978). Here, SOUTHERN SHORE ENTERPRISES, LLC had an obligation to pay
a documentary stamp tax of $0.70 for each $100 of consideration for the transfer of the property
upon the recording of the deed. § 201.02(1){a), Fla. Stat. Because they failed to pay more than
$0.70 in documentary stamp taxes, SOUTHERN SHORE ENTERPRISES, LLC is now estopped
from claiming that additional consideration was paid.
8 The Fourth Affirmative Defense states:
General Statute of Frauds - Plaintiffs claims are barred by the Statute of
Frauds set forth in Florida Statute §725.01 in that Exhibits 6-B. 6-C, 6-F, and
6-G to the Complaint indicate Defendant Gabriel Kirchberger signed on behalf
of IMKA Immobilien Besitz-und Verwertungsgesellschaft and not in his own
name. The subject debt acknowledgment is essentially a confession of
judgment, not favored in Florida and must be construed against Plaintiff.
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This affirmative defense (a) fails to state which claim is barred to which particular
Defendant; (b) is merely a legal conclusion; and (c) fails to state any ultimate facts. These failures
render the defense subject to being stricken under Rule 1.140(b). Moreover, Defendants CAROL
DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC do not have standing to attack the
underlying debt acknowledgments, as they are not defendants upon Count I and the defense is
personal to GABRIEL KIRCHBERBER. Of course, by virtue of the Judgment attached to the
Revised Second Amended Complaint as Exhibit 8, GABRIEL KIRCHBERGER is judicially
estopped from raising this claim. Accordingly, the raising of this defense by CAROL DEVILLE
and SOUTHERN SHORE ENTERPRISES, LLC is nothing more than an attempt to avoid the
judicial estoppel that prevents GABRIEL KIRCHBERGER from denying personal liability under
the debt acknowledgments.
9. The Fifth and Eighth Affirmative Defenses state:
Merger - Debt Acknowledgments Plaintiff seeks to enforce are merged into the
Canadian Judgment and are therefore not independently enforceable.
Relief_Barred_by Canadian Judgment - Plaintiff's judgment is only
enforceable against assets in Ontario Canada and therefore the relief sought in
the Revised Second Amended Complaint is barred.
As stated above, Defendants CAROL DEVILLE and SOUTHERN SHORE
ENTERPRISES, LLC do not have standing to attack the underlying debt acknowledgments or
“Canadian Judgment.” Moreover, Defendants are barred from asserting that the debt
acknowledgments have merged into the Canadian Judgment based upon res judicata. GABRIEL
KIRCHBERGER successfully maintained that the Canadian Judgment is not a money judgment
and is not enforceable as a money judgment outside of Ontario, Canada. It would be inconsistent
for Defendants to now maintain that the Debt Acknowledgments merged into the Canadian
Judgment on a world-wide basis. Moreover, the “Heads, I win. Tails, you lose” argument should
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be disregarded as immaterial and impertinent, rendering both defense subject to striking under
Rule 1.140(h).
10. The Sixth Affirmative Defense states:
Failure to state a cause of action - Defendant, Carol Deville would show that
none of the pled counts or prayers for relief seek relief or state a cause of action
as to Carol Deville individually.
This defense is disproven by the allegations of paragraph 54 of the Revised Second
Amended Complaint which directly references a contention believed to be held by CAROL
DEVILLE. Accordingly, this defense is immaterial and impertinent. On this basis, the defense
should be stricken pursuant to Rule 1.140(h). Moreover, if CAROL DEVILLE truly had no
interest in the outcome of this litigation, why has she filed an answer and affirmative defenses
rather than a consent to judgment?
11. The Seventh Affirmative Defense states:
Failure to Join Necessary _and Indispensable Party/Lack of Standing -
Plaintiff failed to join a necessary and indispensable party, Berlin Hypo Bank,
which holds an interest in the subject assignments attached to the Revised
Second Amended Complaint. Further, all claims arising out of Exhibit 7
attached to the Revised Second Amended Complaint must fail for lack of
standing.
Defendants CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC lack
standing to attack the Declaration of Assignment attached to the Revised Second Amended
Complaint as Exhibit 7. Additionally, this affirmative defense fails to differentiate whether Berlin
Hypo Bank is a necessary or indispensable party and fails to plead ultimate facts necessary to show
how failure to have Berlin Hypo Bank as a party results in Plaintiff's lack of standing to bring its
claims against Defendants CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC.
“Indispensable parties” are necessary parties so essential to a suit that no final decision can
be rendered without their joinder. Hertz Corp. v. Piccolo, 453 So. 2d 12 (Fla. 1984). As
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to necessary parties other than indispensable parties, i.e., parties who have an interest in the suit
and ought to be made parties but who do not have to be joined before a final decision may be
rendered, a final decision will bind those necessary parties joined in the suit, but will have no effect
on the rights of necessary unjoined parties. Jd.
12. The Ninth Affirmative Defense states:
Declaratory Relief Barred - That to be entitled to declaratory relief, a party must
plead sufficient ultimate facts that show that the party is in doubt as to some right
or status and is entitled to have the doubt removed. A party seeking declaratory
relief must show that: 1) there is a bona fide, actual. present, practical need for the
declaration; 2) that the declaration deals with a present, ascertained state of facts or
present controversy: 3) some right of Plaintiff is dependent on the facts or the law
applicable to the facts; 4) there is a party with an actual, present adverse interest; 5)
all interests are before the court; and 6) the relief sought is not merely the giving of
legal advice by the courts. Plaintiff seeks declaratory relief as a procedural
substitute for proceedings supplementary after entry of a Florida money judgment,
in attempting to effect all properties owned by Defendant SOUTHERN SHORES
ENTERPRISES, LLC with the money judgment Plaintiff seeks in Count I. Plaintiff
seeks declaratory relief declaring that alleged debtor GABRIEL KIRCHBERGER
is the alter ego of Defendant SOUTHERN SHORES ENTERPRISES, LLC for the
purpose of aiding in the execution of a money judgment not yet established
therefore there is no present and actual need for any such declaration. SOUTHERN
SHORES ENTERPRISES LLC is a separate legal entity, which separate corporate
form is generally not to be disregarded and a court will do so only in exceptional
circumstances. Moldena v. Hoechst Celanese Corp., 60 F. Supp. 2d 1294 (S.D. Fla.
1999). The disregard of the corporate form or “piercing the corporate veil” requires
that three (3) substantive factors be shown:
) that the corporation was dominated and controlled by its
shareholders to such an extent that the corporation's independent existence was in
fact nonexistent or the corporation was in essence merely an alter ego of the
individual shareholders;
2) that some sort of improper conduct in either the formation or the use
of the corporate form occurred and was used fraudulently or for an improper
purpose.
3) that the fraudulent or improper use of the corporate form or the
improper conduct imposed an actual injury on the claimant.
Plaintiff alleges nothing in regard to these substantive factors. GABRIEL
KIRCHBERGER was not a manager or member of the Defendant SOUTHERN
SHORES ENTERPRISES, LLC at any time material to the allegations, there was
no improper conduct in the formation or use of the corporate form and no actual
Injury. Even if a corporation is merely the alter ego of its dominant shareholder,
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corporate veil cannot be pierced so long as corporation's separate identity was
lawfully maintained. Houri v Boaziz, 196 So. 3d 383 (Fla. 3d DCA 2016);
Stonepeak Partners, LP v. Tall Tower Capital LLC, 231 So. 3d 548 (Fla. 2d DCA
2017). The impropriety required to pierce the corporate veil is present only in cases
in which the corporation was a mere device or sham to accomplish some ulterior
purpose of improper goal, such as misleading or defrauding creditors, hiding assets,
evading the requirements of a statute or some analogous betrayal of trust.
This defense misrepresents, or, at a minimum, misinterprets the requested relief as stated in Count
IV. Defendants CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC cite case law
relevant to piercing the corporate veil of a corporation. However, Plaintiff is not seeking to pierce
the corporate veil of SOUTHERN SHORE ENTERPRISES, LLC to attack its shareholders.
Rather, Plaintiff is seeking to attack the assets held by the corporation because it is alleged that
SOUTHERN SHORE ENTERPRISES, LLC is the alter ego and actually under the custody and
control of the Judgment Debtor, GABRIEL KIRCHBERGER.
Plaintiffs declaratory action is not barred for failure to state a cause of action because all
required elements are alleged in Plaintiff's Revised Second Amended Complaint. Plaintiff is not
required to allege the elements to pierce the corporate veil because that is not the requested relief
of the Plaintiff.
WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, requests entry of an Order striking
affirmative defenses 1-8 pled by Defendants, CAROL DEVILLE and SOUTHERN SHORE
ENTERPRISES, LLC, replies to said affirmative defenses, and requests entry of such other relief
as the Court may deem appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing document on April 14, 2020
with the Clerk of Court using the Florida Courts E-Filing Portal, which will send a notice of
electronic filing to: Glenn N. Siegel, Esquire, Glenn N. Siegel, P.A., 17825 Murdock Circle,
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Suite A, Port Charlotte, Florida 33948, at kim@glennsiegellaw.com, Counsel for Gabriel
Kirchberger; David K. Oaks, Esquire, David K. Oaks, P.A., 407 East Marion Avenue, Suite 101,
Punta Gorda, Florida 33950, at doaksesq@comeast.net, Counsel for Carol DeVille and Southern
Shore Enterprises, LLC, Robert W. Segur, Esquire, Robert W. Segur P.A., 2828 S. McCall Road
PMB 56, Englewood, Florida 34224, at legal@segurlaw.net, Counsel for Moonstone Holdings,
LLC, Niclas Kirchberger, and Christine Frazer; Christopher J. Klein, Esquire, Baur & Klein,
P.A., New World Tower, Suite 2100, 100 North Biscayne Boulevard, Miami, Florida 33132, at
Cklein@worldwidelaw.com and Ocardonne@worldwidelaw.com, Counsel for Defendants
Andreas Kirchberger and Golden Key Properties, LLC.
ADAMS AND REESE LLP
1515 Ringling Boulevard, Suite 700
Sarasota, Florida 34236
Primary: ryan.owen@arlaw.com
Secondary: drew.chesanck@arlaw.com
Secondary: deborah.woodson@arlaw.com
Phone: (941) 316-7600
Counsel for Harry Bieberstein
By:_/s/ Ryan W. Owen
Ryan W. Owen
Florida Bar No. 029355
Drew F. Chesanek
Florida Bar No. 115933
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Filing # 106244000 E-Filed 04/14/2020 04:31:42 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION HARRY BIEBERSTEIN, Plaintiff, Vv. 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 REPLY TO AND MOTION TO STRIKE CAROL DEVILLE AND SOUTHERN SHORE ENTERPRISES, LLC’S AFFIRMATIVE DEFENSES Plaintiff, HARRY BIEBERSTEIN, by and through undersigned counsel and pursuant to Rules 1.100(a), 1.140(b), and 1.140(h) of the Florida Rules of Civil Procedure, replies to and moves to strike certain affirmative defenses of Defendants, CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC and states: 1 Florida Rule of Civil Procedure 1.140(b) mandates that “[e]very defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading,” and “[t]he grounds upon which the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion.” Jd. 2 Case law further provides that all affirmative defenses must be pled “with enough specificity or factual particularity to give the plaintiff ‘fair notice’ of the defense that is being advanced.” Woodfield v. Bowman, 193 F.3d 354, 361 (Sth Cir. 1999). Simply stated, a bare legal conclusion or conclusory statement is, as a matter of law, legally insufficient. See, e.g., Bliss v. 60141383-2 Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982)(delineating that “[c]ertainty is required when pleading defenses ., and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.”); accord Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988). 3 As the court emphasized in Zito v. Washington Fed. Sav. & Loan Assoc. of Miami Beach, Inc., 318 So. 2d 175, 176 (Fla. 3d DCA 1975), “the requirement of certainty will be insisted upon in the pleading of a defense; and the certainty required is that the pleader must set forth facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare evidence.” 4 Pursuant to the aforementioned case law and the Florida Rules of Civil Procedure, Defendants, CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC affirmative defenses 1-8 should be stricken because they are not pled with sufficient specificity and factual particularity to comply with the legal standard. 5 The First Affirmative Defenses states: Statute of Limitations - Plaintiffs claims as to Defendants are barred by Florida Statute §95.11(2)(a). Section 95.11(2)(a), Fla. Stat. only governs an “action on a judgment,” which denotes a specific common law cause of action whereby the plaintiff obtains a new judgment to facilitate the ultimate goal of securing satisfaction of the original cause of action. Burshan v. Nat. Union Fire Ins. Co. of Pittsburgh, PA, 805 So. 2d 835, 840-41 (Fla. 4th DCA 2001). It is used when the limitation period on the judgment has nearly expired in order to start the limitation period anew by obtaining a new judgment. /d. Plaintiff has not alleged a common law action on a judgment claim against CAROL DEVILLE or SOUTHERN SHORE ENTERPRISES, LLC. As a result, this 60141383-2 defense is immaterial and impertinent which renders it subject to being stricken under Rule 1.140(h). Moreover, because the First Affirmative Defense fails to state (a) which claim is barred to which particular Defendant; (b) is merely a legal conclusion; and (c) fails to state any ultimate facts, it is subject to being stricken under Rule 1.140(b). 6. The Second Affirmative Defense states: Extinguishment of Cause of Action - Plaintiff’s claims as to Defendants are barred by Florida Statute §726.110. Section 726.110, Fla. Stat. sets forth a statute of repose for fraudulent transfer actions under §§ 726.105(1)(a), 726.105(1)(b), 726.106(1), and 726.106(2), Fla. Stat. Nat'l Auto Serv. Ctrs. v. F/R 550, LLC, 192 So. 3d 498 (Fla. 2d DCA 2016). Count II of Plaintiff's Revised Second Amended Complaint states a cause of action against SOUTHERN SHORE ENTERPRISES, LLC for violation of §§ 726.105(1)(a), 726.105(1)(b), and 726.106(1), Fla. Stat. The statue of repose for claims brought under these sections is set forth in § 726.110, Fla. Stat. as four (4) years. The transfer complained of in Count II occurred on June 2, 2015. See § 726.107, Fla. Stat. (establishing transfer is “made” when the deed is recorded.) This action was filed on November 18, 2016 and the Revised Second Amended Complaint relates back to that filing. Even if the Revised Second Amended Complaint did not relate back to the original complaint, it would certain nonetheless relate back to the Motion for Leave to File Second Amended Complaint, which was filed on May 31,2019. In either event, the claim was brought within four (4) years of the transfer. Accordingly, this defense fails as a matter of law and is, therefore, immaterial and impertinent. On this basis, the defense should be stricken pursuant to Rule 1.140(h). 60141383-2 Moreover, this affirmative defense (a) fails to state which claim is barred to which particular Defendant; (b) is merely a legal conclusion; and (c) fails to state any ultimate facts. These failures render the defense subject to being stricken under Rule 1.140(b). 7 The Third Affirmative Defense states: Bona fide purchase for value - Plaintiff's claims are barred as a transfer or obligation is not voidable as Defendant SOUTHERN SHORES ENTERPRISES, LLC was a bona fide purchaser for a reasonably equivalent value as to the property referenced in Count II. This affirmative defense fails to plead the elements of any legal defense recognized under Florida Law and should be stricken. It is nothing more than a denial. Moreover, SOUTHERN SHORES ENTERPRISES, LLC is estopped from claiming that it paid more than $100.00 consideration for the property as a result of its failure to pay documentary stamp taxes of more than $0.70 as shown by Exhibit 33. The basic elements of estoppel include a false representation or concealment of material facts. Rinker Materials Corp. v. Palmer First Nat'l Bank, 361 So. 2d 156, 157 (Fla.1978). Here, SOUTHERN SHORE ENTERPRISES, LLC had an obligation to pay a documentary stamp tax of $0.70 for each $100 of consideration for the transfer of the property upon the recording of the deed. § 201.02(1){a), Fla. Stat. Because they failed to pay more than $0.70 in documentary stamp taxes, SOUTHERN SHORE ENTERPRISES, LLC is now estopped from claiming that additional consideration was paid. 8 The Fourth Affirmative Defense states: General Statute of Frauds - Plaintiffs claims are barred by the Statute of Frauds set forth in Florida Statute §725.01 in that Exhibits 6-B. 6-C, 6-F, and 6-G to the Complaint indicate Defendant Gabriel Kirchberger signed on behalf of IMKA Immobilien Besitz-und Verwertungsgesellschaft and not in his own name. The subject debt acknowledgment is essentially a confession of judgment, not favored in Florida and must be construed against Plaintiff. 60141383-2 This affirmative defense (a) fails to state which claim is barred to which particular Defendant; (b) is merely a legal conclusion; and (c) fails to state any ultimate facts. These failures render the defense subject to being stricken under Rule 1.140(b). Moreover, Defendants CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC do not have standing to attack the underlying debt acknowledgments, as they are not defendants upon Count I and the defense is personal to GABRIEL KIRCHBERBER. Of course, by virtue of the Judgment attached to the Revised Second Amended Complaint as Exhibit 8, GABRIEL KIRCHBERGER is judicially estopped from raising this claim. Accordingly, the raising of this defense by CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC is nothing more than an attempt to avoid the judicial estoppel that prevents GABRIEL KIRCHBERGER from denying personal liability under the debt acknowledgments. 9. The Fifth and Eighth Affirmative Defenses state: Merger - Debt Acknowledgments Plaintiff seeks to enforce are merged into the Canadian Judgment and are therefore not independently enforceable. Relief_Barred_by Canadian Judgment - Plaintiff's judgment is only enforceable against assets in Ontario Canada and therefore the relief sought in the Revised Second Amended Complaint is barred. As stated above, Defendants CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC do not have standing to attack the underlying debt acknowledgments or “Canadian Judgment.” Moreover, Defendants are barred from asserting that the debt acknowledgments have merged into the Canadian Judgment based upon res judicata. GABRIEL KIRCHBERGER successfully maintained that the Canadian Judgment is not a money judgment and is not enforceable as a money judgment outside of Ontario, Canada. It would be inconsistent for Defendants to now maintain that the Debt Acknowledgments merged into the Canadian Judgment on a world-wide basis. Moreover, the “Heads, I win. Tails, you lose” argument should 60141383-2 be disregarded as immaterial and impertinent, rendering both defense subject to striking under Rule 1.140(h). 10. The Sixth Affirmative Defense states: Failure to state a cause of action - Defendant, Carol Deville would show that none of the pled counts or prayers for relief seek relief or state a cause of action as to Carol Deville individually. This defense is disproven by the allegations of paragraph 54 of the Revised Second Amended Complaint which directly references a contention believed to be held by CAROL DEVILLE. Accordingly, this defense is immaterial and impertinent. On this basis, the defense should be stricken pursuant to Rule 1.140(h). Moreover, if CAROL DEVILLE truly had no interest in the outcome of this litigation, why has she filed an answer and affirmative defenses rather than a consent to judgment? 11. The Seventh Affirmative Defense states: Failure to Join Necessary _and Indispensable Party/Lack of Standing - Plaintiff failed to join a necessary and indispensable party, Berlin Hypo Bank, which holds an interest in the subject assignments attached to the Revised Second Amended Complaint. Further, all claims arising out of Exhibit 7 attached to the Revised Second Amended Complaint must fail for lack of standing. Defendants CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC lack standing to attack the Declaration of Assignment attached to the Revised Second Amended Complaint as Exhibit 7. Additionally, this affirmative defense fails to differentiate whether Berlin Hypo Bank is a necessary or indispensable party and fails to plead ultimate facts necessary to show how failure to have Berlin Hypo Bank as a party results in Plaintiff's lack of standing to bring its claims against Defendants CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC. “Indispensable parties” are necessary parties so essential to a suit that no final decision can be rendered without their joinder. Hertz Corp. v. Piccolo, 453 So. 2d 12 (Fla. 1984). As 60141383-2 to necessary parties other than indispensable parties, i.e., parties who have an interest in the suit and ought to be made parties but who do not have to be joined before a final decision may be rendered, a final decision will bind those necessary parties joined in the suit, but will have no effect on the rights of necessary unjoined parties. Jd. 12. The Ninth Affirmative Defense states: Declaratory Relief Barred - That to be entitled to declaratory relief, a party must plead sufficient ultimate facts that show that the party is in doubt as to some right or status and is entitled to have the doubt removed. A party seeking declaratory relief must show that: 1) there is a bona fide, actual. present, practical need for the declaration; 2) that the declaration deals with a present, ascertained state of facts or present controversy: 3) some right of Plaintiff is dependent on the facts or the law applicable to the facts; 4) there is a party with an actual, present adverse interest; 5) all interests are before the court; and 6) the relief sought is not merely the giving of legal advice by the courts. Plaintiff seeks declaratory relief as a procedural substitute for proceedings supplementary after entry of a Florida money judgment, in attempting to effect all properties owned by Defendant SOUTHERN SHORES ENTERPRISES, LLC with the money judgment Plaintiff seeks in Count I. Plaintiff seeks declaratory relief declaring that alleged debtor GABRIEL KIRCHBERGER is the alter ego of Defendant SOUTHERN SHORES ENTERPRISES, LLC for the purpose of aiding in the execution of a money judgment not yet established therefore there is no present and actual need for any such declaration. SOUTHERN SHORES ENTERPRISES LLC is a separate legal entity, which separate corporate form is generally not to be disregarded and a court will do so only in exceptional circumstances. Moldena v. Hoechst Celanese Corp., 60 F. Supp. 2d 1294 (S.D. Fla. 1999). The disregard of the corporate form or “piercing the corporate veil” requires that three (3) substantive factors be shown: ) that the corporation was dominated and controlled by its shareholders to such an extent that the corporation's independent existence was in fact nonexistent or the corporation was in essence merely an alter ego of the individual shareholders; 2) that some sort of improper conduct in either the formation or the use of the corporate form occurred and was used fraudulently or for an improper purpose. 3) that the fraudulent or improper use of the corporate form or the improper conduct imposed an actual injury on the claimant. Plaintiff alleges nothing in regard to these substantive factors. GABRIEL KIRCHBERGER was not a manager or member of the Defendant SOUTHERN SHORES ENTERPRISES, LLC at any time material to the allegations, there was no improper conduct in the formation or use of the corporate form and no actual Injury. Even if a corporation is merely the alter ego of its dominant shareholder, 60141383-2 corporate veil cannot be pierced so long as corporation's separate identity was lawfully maintained. Houri v Boaziz, 196 So. 3d 383 (Fla. 3d DCA 2016); Stonepeak Partners, LP v. Tall Tower Capital LLC, 231 So. 3d 548 (Fla. 2d DCA 2017). The impropriety required to pierce the corporate veil is present only in cases in which the corporation was a mere device or sham to accomplish some ulterior purpose of improper goal, such as misleading or defrauding creditors, hiding assets, evading the requirements of a statute or some analogous betrayal of trust. This defense misrepresents, or, at a minimum, misinterprets the requested relief as stated in Count IV. Defendants CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC cite case law relevant to piercing the corporate veil of a corporation. However, Plaintiff is not seeking to pierce the corporate veil of SOUTHERN SHORE ENTERPRISES, LLC to attack its shareholders. Rather, Plaintiff is seeking to attack the assets held by the corporation because it is alleged that SOUTHERN SHORE ENTERPRISES, LLC is the alter ego and actually under the custody and control of the Judgment Debtor, GABRIEL KIRCHBERGER. Plaintiffs declaratory action is not barred for failure to state a cause of action because all required elements are alleged in Plaintiff's Revised Second Amended Complaint. Plaintiff is not required to allege the elements to pierce the corporate veil because that is not the requested relief of the Plaintiff. WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, requests entry of an Order striking affirmative defenses 1-8 pled by Defendants, CAROL DEVILLE and SOUTHERN SHORE ENTERPRISES, LLC, replies to said affirmative defenses, and requests entry of such other relief as the Court may deem appropriate. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing document on April 14, 2020 with the Clerk of Court using the Florida Courts E-Filing Portal, which will send a notice of electronic filing to: Glenn N. Siegel, Esquire, Glenn N. Siegel, P.A., 17825 Murdock Circle, 60141383-2 Suite A, Port Charlotte, Florida 33948, at kim@glennsiegellaw.com, Counsel for Gabriel Kirchberger; David K. Oaks, Esquire, David K. Oaks, P.A., 407 East Marion Avenue, Suite 101, Punta Gorda, Florida 33950, at doaksesq@comeast.net, Counsel for Carol DeVille and Southern Shore Enterprises, LLC, Robert W. Segur, Esquire, Robert W. Segur P.A., 2828 S. McCall Road PMB 56, Englewood, Florida 34224, at legal@segurlaw.net, Counsel for Moonstone Holdings, LLC, Niclas Kirchberger, and Christine Frazer; Christopher J. Klein, Esquire, Baur & Klein, P.A., New World Tower, Suite 2100, 100 North Biscayne Boulevard, Miami, Florida 33132, at Cklein@worldwidelaw.com and Ocardonne@worldwidelaw.com, Counsel for Defendants Andreas Kirchberger and Golden Key Properties, LLC. ADAMS AND REESE LLP 1515 Ringling Boulevard, Suite 700 Sarasota, Florida 34236 Primary: ryan.owen@arlaw.com Secondary: drew.chesanck@arlaw.com Secondary: deborah.woodson@arlaw.com Phone: (941) 316-7600 Counsel for Harry Bieberstein By:_/s/ Ryan W. Owen Ryan W. Owen Florida Bar No. 029355 Drew F. Chesanek Florida Bar No. 115933 60141383-2