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Filing # 94938674 E-Filed 08/28/2019 05:01:26 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, HARRY BIEBERSTEIN’S, MOTIONS FOR RECONSIDERATION OF
FINDINGS IN THIS COURT’S JULY 24, 2018 NON-FINAL ORDER AND FOR
PROCEEDINGS SUPPLEMENTARY
Plaintiff/Judgment Creditor, HARRY BIEBERSTEIN, moves this Court for
reconsideration of the finding that the Out-of-Country Foreign Judgment is not a money
judgment in its July 24, 2018 Non-Final Order and moves for commencement of proceedings
supplementary pursuant to Florida Statute §56.29. In support thereof, Plaintiff states:
MOTION FOR RECONSIDERATION
Procedural Background and Authority to Reconside!
1 Plaintiff is the assignee of seven German Debt Acknowledgments
(“Acknowledgments”) originally given to Berlin Hypo Bank, a German bank, by Defendant,
GABRIEL KIRCHBERGER (“Gabriel”), in order to evidence certain loans.
2 Under German law, the Acknowledgments allow for recovery of debt without the
need for a judgment. They are explained by the Maine Supreme Court in GENUJO LOK
Beteiligungs GmbH vy. Zorn, 943 A.2d 573, 575 (Me. 2008) as agreements which provide for (a)
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acknowledgment of indebtedness; (b) the basis of liability; and (c) immediately compulsory
attachment of all assets without the need for a judgment. It is only when the debtor on such
acknowledgments has assets outside of Germany that a judgment is necessary. Jd. at 576.
3 In 2010, Plaintiff brought the suit against Gabriel, among others, in order to
enforce the Acknowledgments in Ontario, Canada captioned Harry Bieberstein v. Gabriel
Kirchberger, et al., Court File No. CV-10-8534-00CL and CV-10-8535-00CL (Ontario Superior
Court of Justice). On September 26, 2016, the court therein entered the judgment attached hereto
as Exhibit “A” in Plaintiffs favor and against Gabriel (the “Ontario Judgment”), which
provides:
a, “[TJhat the amount of the liability assumed in the Acknowledgements is
€8,391,909.49, inclusive of pre-judgment interest through to the date of this
judgment, plus any post-judgment interest accrued on the unpaid balance of the
liability assumed in the Acknowledgements, which shall accrue at the rate of 3%
per year;” and
“[{T]hat the Defendant Gabriel Kirchberger pay to the Plaintiff costs and
disbursements in the amount of [CAN]$56,738.67, inclusive of HST.”
4 On November 18, 2016, Plaintiff recorded a certified copy of the Ontario
Judgment in the Public Records of Sarasota County, Florida and also recorded an affidavit in
accordance with § 55.601, Fla. Stat., et seq.
5 The Sarasota County Clerk of the Circuit Court docketed the Judgment under
Case No. 2016 CA 5872 NC and mailed Defendant/Judgment Debtor GABRIEL
KIRCHBERGER the notice of the recording as required by § 55.604(1)(b), Fla. Stat. on
November 18, 2016. See Exhibit “B.” The notice specifically stated “This judgment may
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become a lien on your property unless you act within 30 days. For additional information,
consult with an attorney or refer to Section 55.505, et. Seq. or 55.601 et. Seq., Florida Statutes.”
6 The Sarasota County Clerk of Court’s Docket does not reflect that the notice was
returned undeliverable or otherwise failed to be delivered to Defendant, Gabriel.
7. Defendant, Gabriel, did not file a “notice of objection with the clerk of the court
specifying the grounds for nonrecognition or nonenforceability” under the Uniform Out-of-
country Foreign Money-Judgment Recognition Act (“UFMJRA”) within 30 days after service of
the notice.
8 Pursuant to § 55.604(4), Fla. Stat., “If the judgment debtor fails to file a notice of
objection within the required time, the clerk of the court shall record a certificate stating that no
objection has been filed.”
9 For unknown reasons, despite its statutory duty to do so, the Sarasota County
Clerk of the Circuit Court did not record a certificate stating that no objection had been filed.
10. Had an order been entered or had the Clerk recorded the certificate that it was
statutorily mandated to record, the Judgment would be enforced in the same manner as a Florida
judgment as required by §55.604(5), Fla. Stat.
11. Section 55.604(3), Fla. Stat. provides the procedure that the parties are intended to
follow in the event that an objection is filed within thirty (30) days. It provides: “[u]pon the
application of any party, and after proper notice, the circuit court shall have jurisdiction to
conduct a hearing, determine the issues, and enter an appropriate order granting or denying
recognition in accordance with the terms of this act.”
12. Rather than seeking to have the Clerk comply with its statutory duty or filing a
motion for an order granting recognition of the Judgment in accordance with the terms of the
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UFMIJRA, Plaintiff, through predecessor counsel, filed a Complaint. Defendants moved to
dismiss the complaint and a hearing was held upon their motions.
13. Although no party applied for the court to enter an order granting or denying
recognition of the Judgment in accordance with the UFMJRA, on July 24, 2018, this Court
entered an Order that denied recognition of the Judgment under the UFMJRA as part of its Order
granting the motions to dismiss and granting Plaintiffs ore tenus motion to amend his pleadings.
A copy of said Order is attached hereto as Exhibit “C.” Prior to the 2014 amendments to Rule
9.130(a)(4) of the Florida Rules of Appellate Procedure, this Order would have been
immediately appealable. However, due to the deletion of “[o]ther non-final orders entered after
final order” makes it clear that this Order cannot be appealed until the entry of a subsequent final
order. Accordingly, this Court retains jurisdiction and has the authority to reconsider its
conclusion as recognized in Comm. Garden Mall y. Success Academy, Inc., 453 So. 2d 934, 934-
35 (Fla. 4th DCA 1984) and North Shore Hospital Inc. v. Barber, 143 So. 2d 849 (Fla. 1962).
Recognition of Out-of-Country Judgments under UFMJRA
14. “The UFMJRA was adopted in Florida in 1994 to ensure the recognition abroad
of judgments rendered in Florida. The Act replaced common law principles of comity relating to
the recognition of foreign judgments. The UFMJRA by its terms applies to foreign judgments
that are final, conclusive, and enforceable where they were rendered.” Nadd y. Le Credit
Lyonnais, 804 So. 2d 1226, 1228 (Fla. 2001). Florida’s UFMJRA is the 1962 version of the
UFMIRA. Florida has not adopted the 2005 revision.
15. “A foreign judgment is defined simply as ‘any judgment of a foreign state
granting or denying recovery of a sum of money.”” Kramer v. Von Mitschke-Collande, 5 So. 3d
689, 689 (Fla. 3d DCA 2008)(quoting § 55.602(2), Fla. Stat.)
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16. The UFMJRA’s procedural provisions need not be followed exactly in order for a
foreign cost judgment to be enforceable. It is sufficient for the judgment creditor to substantially
comply with the notice requirements. Frymer v. Brettschneider, 696 So. 2d 1266, 1267-68 (Fla.
4th DCA 1997).
17. Under the UFMJRA, the judgment creditor carries the initial burden to show that
the judgment meets the requirements of the UFMJRA. Osorio v. Dole Food Co., 665 F. Supp.
2d 1307, 1323-24 (S.D. Fla. 2009). Thereafter, the burden shifts to the debtor on said judgment
to specify and prove a ground for non-recognition. Kramer, 5 So. 3d at 690.
18. In Casado vy. Sanson-Cunillera, 2015 Fla. Cir. LEXIS 23 (11th Cir. Ct. June 2,
2014) (per curium aff'd Sanson-Cunillera v. Casado, 187 So, 3d 1252 (Fla. 3d DCA 2016)), a
Florida Circuit Court recognized an out-of-country foreign judgment and stated “one look at the
Dominican Order reveals that it was intended to be a final judgment .... The Judgment, after all,
is twenty-five pages long and was issued by a three-judge panel where one judge dissented. The
Order also recaps the evidence the court reviewed and contains factual findings based on this
evidence that were then applied to the relevant laws. Sanson was ... required to pay Casado’s
attorney fees, court costs, and a monetary award as compensation for her domestic violence
injuries.”
19, In Cont’l Transfert Technique Ltd. v. Fed. Gov’t of Nigeria, 697 F. Supp. 2d 46,
62-63 (D.D.C. 2010), the court held that an order of an English court that provided:
IT IS ORDERED THAT . . . judgment be entered against the Defendants in the
terms of the said Award, namely
(a) that the Defendants pay to the Claimant the sum of Nigerian Naira
29,660, 166,207.48;
(b) that the Defendants pay to the Claimant US Dollar 247,500.00 in respect of
the Claimant's legal costs incurred in the arbitration;
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(c) to the extent that the Claimant has paid more than 5% of the costs of the
arbitration ., that the Defendants reimburse the Claimant for any such
excess payments.
This Order is absolute, and the Claimant is entitled to apply for enforcement of
this judgment.
was a judgment entitled to recognition because it granted “the right to recover ‘a sum of money’
and even refers to itself as a judgment,” which were “clear indications that the order constitutes a
judgment within the meaning of the UFMJRA.”
20. Similarly, the Court in Zorn, 943 A. 2d at 578 held that the German judgment
sought to be domesticated in Maine “falls within the plain meaning of ‘foreign judgment’ as it is
defined in [Maine’s codification of the UFMJRA]. The May 10, 2004 decision is titled
‘Judgement [sic];’ was issued by a foreign court and bears the seal of that court; grants recovery
of a sum of money; and is not ‘a judgment for taxes, a fine or other penalty or a judgment for
support in matrimonial or family matters.”
21. Finally, the Massachusetts Supreme Court interpreted that state’s adoption of the
UFMJRA, which is identical to Florida’s, to allow enforcement of a Canadian judgment for
attorneys’ fees in Ducharme v. Hunnewell, 411 Mass 711, 713-716 (1992).
22. The issue before the Court pursuant to this Motion is whether the Ontario
Judgment, on its face, “grant[s] or den[ies] recovery of a sum of money.”
Application of the UFMJRA to the Ontario Judgment
23. Here, the Court’s Order does not explain its basis for determining that the Ontario
Judgment is not a “money judgment as defined by § 55.602(2), Fla. Stat.”
24. However, the transcript of the hearing filed with the clerk on July 18, 2018 is
instructive. The Court was not provided with any case law interpreting UFMJRA’s definition of
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“Out-of-country foreign judgment” which is codified by the Florida Legislature at § 55.602(2),
Fla. Stat. and defined 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.”
25. Moreover, none of the attorneys at the hearing argued the correct standard.
Counsel for DeVille argued that the Ontario Judgment is not a “money judgment.” Transcript at
5. This erroneous terminology was followed by Plaintiffs former counsel, id. at 23, and adopted
by the Court. /d. at 34-35.
26. Additionally, because the Court was ruling on motions to dismiss, it believed that
it was limited to the allegations of the Complaint. See id. at 34. However, the case law makes
clear that the Court is not limited to the text of the judgment when determining whether an out-
of-country foreign judgment is entitled to recognition under the UFMJRA. Societe Civile
Succession Richard Guino y. Redstar Corp., 153 Cal. App. 4th 697, 702 (2007).
27. The Ontario Judgment is titled “JUDGMENT” and provides:
1 THIS COURT DECLARES AND ADJUDGES that Acknowledgments
between Gabriel Kirchberger and Berlin Hypo Bank and enforceable.
THIS COURT DECLARES AND ADJUDGES that the Plaintiff is entitled to
enforce against the assets of Gabriel Kirchberger located in Ontario in the
manner and to the extent as if he had obtained judgment against Kirchberger
for the payment of money in the amount of the liability assumed in the
acknowledgments, as quantified in Paragraph 3 below.
THIS COURT DECLARES AND ADJUDGES that the amount of the liability
assumed in the Acknowledgments is €8,391,909.49, inclusive of pre-judgment
interest accrued on the unpaid balance of the liability assumed in the
Acknowledgments, which shall accrue at a rate of 3% per year.
THIS COURT DECLARES AND ADJUDGES that the Claim to enforce the
Acknowledgment between Gabriel Kirchberger and Hypo Bank is dismissed.
THIS COURT DECLARES AND ADJUDGES that the claim in fraud and
unjust enrichment against Gabriel Kirchberger is dismissed.
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6. THIS COURT DECLARES AND ADJUDGES that the claim against Susanne
Viktoria Schmidt, Nomen Fitness, Inc. 487223 Ontario Limited and 1171858
Ontario Limited carrying on business as G.K. York Management Services for
unjust enrichment in relation to the Banks is dismissed.
THIS COURT DECLARES AND ADJUDGES that the Defendant Gabriel
Kirchberger pay to the Plaintiff costs and disbursements in the amount of
[CAN]$56,738.67, inclusive of HST.
28. The Ontario Judgment both grants and denies recovery of a sum of money. It
grants Plaintiff recovery of €8,391,909.49 in paragraphs 2 and 3. It denies Plaintiff's request for
recovery in paragraphs 5 and 6, It grants Plaintiff recovery of an additional CAN$56,738.67 in
paragraph 7. In fact, the language of paragraph 7 of the Ontario Judgment is almost identical to
the language of the judgment in Cont’! Transfert Technique Ltd., 697 F. Supp. 2d at 62-63.
29. The fact that the Ontario Judgment grants and denies a recovery of a sum of
money is further supported by the transcript of proceedings held before the Ontario Court on
February 10, 2014 whereat the parties argued concerning the form that the judgment would take.
During the argument, Counsel for Gabriel argued “So, so that we’re clear, I accept for the
purpose of this action that if Mr. Bieberstein properly holds the acknowledgments and obtains an
order here in Ontario, he can enforce against Mr. [Gabriel] Kirchberger’s assets here in Ontario.
You don’t have to get into the wherever situated business, because if the acknowledgement is
property domesticated here and it’s properly held by Mr. Bieberstein and it’s enforceable for a
particular sum of money, Mr. Bieberstein would, in virtue of the order that this Court grants, be
entitled to look to the assets of Mr. [Gabriel] Kirchberger in Ontario to satisfy that judgment.”
See Excerpt of Transcript of Proceedings attached hereto as Exhibit “D” at 137-38!
30. The Defendants’ arguments that the Ontario Judgment is not “a money judgment”
is most similar to the arguments put forth by the defendants and rejected by the District Court in
' This full transcript was previously filed with the Court on March 20, 2018.
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V. Corp. Ltd. v. Redi Corp. (USA), 2004 WL 2290491, 2004 U.S. Dist. LEXIS 20424 (S.D.N.Y.
October 9, 2004). Therein, the plaintiff sought to domesticate an English arbitration award that
had been confirmed by an English Court under New York’s UFMJRA. In the English Court’s
order, it held that the plaintiff could “enforce the arbitral award ‘in the same manner as a
judgment or order to the same effect.”” The defendants argued that the English Court’s order
was not enforceable under the UFMJRA because it “did not qualify as a ‘judgment’ because it
was a mere ‘order’ granting permission to enforce the arbitral award as a judgment.” The
District Court rejected the defendants’ argument and held that it “elevates form over substance,”
that the order was the “functional equivalent’ of an English judgment,” and that the order was
enforceable under the UFMJRA. In doing so, the District Court summarized the holdings of
other courts in rejecting similar arguments:
Several other cases have demonstrated the functional, as opposed to formalistic,
approach that courts have taken when deciding which judicial acts qualify for
recognition as foreign country judgments. See, e.g., Island Territory of Curacao v.
Solitron Devices, Inc., 489 F.2d 1313, 1317, 1323 (2d Cir. 1973) (Curacao court’s
issuance of “writ of execution” on local arbitral award functioned as final
judgment under Curacao law, even though award left it open to either party to
demand further arbitration and obtain more extensive damages); J. G. Mailaender
Druckmaschinenfabrik GmbH & Co. K. G. y. Otto Isenschmid Corp., 88 A.D.2d
654, 450 N.Y.S.2d 533 (2d Dep’t 1982) (judicial settlement concluded in German
court was equivalent of consent judgment and thus constituted foreign country
judgment under [the UFMJRA]); Overseas Development Bank in Liquidation v.
Nothmann,115 A.D.2d 719, 720-21, 496 N.Y.S.2d 534, 535-36 (2d Dep't
1985) (two English default money judgments recognized as enforceable in
England pursuant to special order of High Court of Justice, Queen’s Bench
Division, even though enforcement of judgments was otherwise time-barred).
Defendant protests that plaintiff cannot make the High Court Order a “judgment”
simply by calling it a “judgment.” (Def.'s Reply Mem. of Law at 5)[.] The
decisions discussed above, however, turn not on whether a foreign court decree is
formally titled a “judgment,” but rather whether the decree is “final, conclusive
and enforceable where rendered,” as required by [the UFMJRA].
Of particular importance here is the statutory requirement that the foreign decree
be enforceable “where rendered” -- that is, in the English courts. See,
e.g., Seetransport, 989 F.2d 572, 583 (2d Cir. 1993) (remanding to determine
57243437v1 Page 9 of 15
“whether the decision of the Court of Appeals of Paris is enforceable in France”)
(emphasis added); Island Territory of Curacao vy. Solitron Devices, Inc., 489 F.2d
1313, 1323 (2d Cir. 1973) (holding that decree “was conclusive and enforceable
in Curacao”).
31. The Ontario Judgment facially recognizes that is the functional equivalent of a
money judgment when it says that Plaintiff may “enforce against the assets of Gabriel
Kirchberger located in Ontario in the manner and to the extent as if he had obtained judgment
against Kirchberger for the payment of money.” The Ontario Judgment may be enforced as a
judgment in Ontario, accordingly, under the above-quoted authorities, it qualifies for recognition
in Florida under the UFMJRA.
Conclusion of Arguments upon Motion for Reconsideration
32. Based upon the foregoing, this Court should (a) reconsider the finding that the
Ontario Judgment is not subject to recognition in Florida under the UFMJRA; (b) in determining
whether the Ontario Judgment may be recognized in Florida under the UFMJRA, consider (i) the
actual language of § 55.602(2), Fla. Stat., (ii) the aforementioned case law, and (iii) the contents
of the Transcript of the February 10, 2014 hearing before the Ontario Court; (c) determine that
insofar as the Ontario Judgment awards recovery of €8,391,909.49, it is entitled to recognition in
Florida under the UFMJRA; (d) determine that insofar as the Ontario Judgment awards recovery
of CAN$56,738.67, it is entitled to recognition in Florida under the UFMJRA; (e) enter an Order
granting recognition of the award of €8,391,909.49 in the Ontario Judgment in accordance with §
55.604(3), Fla. Stat. and establishing that Plaintiff is entitled to recover the principal sum of
US$8,945,775.51 (based upon the exchange rate of US$1.0660 per €1 as of November 18, 2016
in accordance with MacDonald v. International Chemalloy Corp., 473 So. 2d 760, 761 (Fla. 4th
DCA 1985)) and interest of US$38,969.27 (based upon €36,556.54 (per diem of €689.745986 x
53 days) converted to USD) through November 18, 2016, together with post-judgment interest
57243437v1 Page 10 of 15
after November 18, 2016 accruing at the rate set forth in § 55.03, Fla. Stat.; (f) enter an Order
granting recognition of the award of CAN$56,738.67 in the Ontario Judgment in accordance
with § 55.604(3), Fla. Stat. and establishing that Plaintiff is entitled to recover the principal sum
of US$41,969.59 (based upon the exchange rate of US$0.7397 per CAN$1 as of November 18,
2016) together with post-judgment interest after November 18, 2016 accruing at the rate set forth
in § 55.03, Fla. Stat.; (g) dismiss Count I of the Plaintiff's Revised Second Amended Complaint
as moot; and (h) convert the remaining counts of Plaintiffs Revised Second Amended
Complaint to a Supplemental Complaint as requested below in accordance with § 56.29, Fla.
Stat. as more fully set forth below.
MOTION FOR PROCEEDINGS SUPPLEMENTARY
Introduction
33. Plaintiffs who hold unsatisfied judgments are entitled to proceedings
supplementary to execution pursuant to § 56.29, Fla. Stat. (2019) as a matter of law. Aside from
having an unsatisfied judgment, the only prerequisites are filing a motion and an affidavit so
stating, identifying the issuing court, the case number, and the unsatisfied amount of the
judgment, including accrued costs and interest, and stating that the execution is valid and
outstanding. § 56.29(1), Fla. Stat. The Court has no discretion to deny a motion for proceedings
supplementary that meets the requirements of § 56.29(1), Fla. Stat. B&/ Contractors, Inc. v.
Mel-Re Construction Management, 66 So. 3d 1035 (Fla. 2d DCA 2011).
34. The affidavit required by § 56.29(1), Fla. Stat. will be provided to the Court at the
hearing on this motion.
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Applicable Statutes
35, Pursuant to §56.29(2), Fla. Stat., the judgment creditor “shall, in the motion
describe any property of the judgment debtor not exempt from execution in the hands of any
person which may be applied toward the satisfaction of the judgment. Upon filing of the
motion...that property of the judgment debtor...in the custody or control of any other person may
be applied to satisfy the judgment, then the Court shall issue a Notice to Appear.”
36. Pursuant to § 56.29(9), Fla. Stat.,
“The court may entertain claims concerning the judgment debtor’s assets brought
under chapter 726 and enter any order or judgment, including a money judgment
against any initial or subsequent transferee, in connection therewith, irrespective
of whether the transferee has retained the property. Claims under chapter 726
brought under this section shall be initiated by a supplemental complaint and
served as provided by the rules of civil procedure, and the claims under the
supplemental complaint are subject to chapter 726 and the rules of civil
procedure.”
Transfers
37. While the Plaintiffs action in Ontario, Canada was pending, Gabriel began
transferring Florida assets to DeVille, Southern, and Moonstone. Later, Gabriel transferred his
ownership of Moonstone to Niclas.
38. As set forth in the Revised Second Amended Complaint filed on June 6, 2019,
which is incorporated herein by reference, Gabriel transferred his Florida assets to DeVille,
Southern, Moonstone, and Niclas.
39. Additionally, Gabriel’s assets are nominally held by DeVille, Frazer, Andreas,
and Niclas.
40. Said transfers and instances where Gabriel’s assets are in the hands of others are
subject to being set aside pursuant § 59.29, Fla. Stat.
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Conversion of Revised Second Amended Complaint to Supplemental Complaint
41, Accordingly, Counts II-VI of the Revised Second Amended Complaint should be
converted to a Supplemental Complaint and treated as proceedings supplementary. Defendants
DeVille, Southern, Moonstone, Frazer, Andreas, and Niclas should be converted to Impleaded
Defendants.
42. Alternatively, Plaintiff would request leave to voluntarily dismiss Counts II-VII
and immediately re-file them as a Supplemental Complaint without the need for personal service
of the Supplemental Complaint upon each of the Impleader Defendants.
Demand for Attorneys’ Fees
43. Plaintiff has retained the undersigned counsel to represent it in this action, and
has agreed to pay them a reasonable fee for their services, and is entitled to recovery of same
from Defendant/Judgment Debtor, Gabriel, pursuant to §§56.29(11) and 57.115, Fla. Stat.
WHEREFORE, Plaintiff moves that the Court to: (1) reconsider the finding that the Out-
of-Country Foreign Judgment is not a money judgment in its July 24, 2018 Non-Final Order; (2)
find that the Out-of-Country Foreign Judgment is a money judgment; (3) enter an Order granting
recognition of the award of €8,391,909.49 in the Ontario Judgment in accordance with §
55.604(3), Fla. Stat. and establishing that Plaintiff is entitled to recover the principal sum of
US$8,945,775.51 (based upon the exchange rate of US$1.0660 per €1 as of November 18, 2016
in accordance with MacDonald v. International Chemalloy Corp., 473 So. 2d 760, 761 (Fla. 4th
DCA 1985)) and interest of US$38,969.27 (based upon €36,556.54 (per diem of €689.745986 x
53 days) converted to USD) through November 18, 2016, together with post-judgment interest
after November 18, 2016 accruing at the rate set forth in § 55.03, Fla. Stat.; (4) enter an Order
granting recognition of the award of CAN$56,738.67 in the Ontario Judgment in accordance
57243437v1 Page 13 of 15
with § 55.604(3), Fla. Stat. and establishing that Plaintiff is entitled to recover the principal sum
of US$41,969.59 (based upon the exchange rate of US$0.7397 per CAN$1 as of November 18,
2016) together with post-judgment interest after November 18, 2016 accruing at the rate set forth
in § 55.03, Fla. Stat.; (5) dismiss Count I of the Plaintiff's Revised Second Amended Complaint
as moot; (6) initiate the proceedings supplementary to execution; (7) determine that the transfers
from Gabriel to the Impleaded Defendants are fraudulent; (8) determine that Southern,
Moonstone and Golden are the alter-egos of Gabriel; (9) order that the Sheriff of Charlotte
County levy and execute upon the assets of SOUTHERN SHORES ENTERPRISES, LLC,
MOONSTONE HOLDINGS, LLC, and GOLDEN KEY PROPERTIES, LLC or that the Clerk
issue a Writ of Garnishment for the assets of SOUTHERN SHORES ENTERPRISES, LLC,
MOONSTONE HOLDINGS, LLC and GOLDEN KEY PROPERTIES, LLC as if it is the
property of Defendant, Gabriel; (10) order that the proceeds therefrom be applied to the
satisfaction of the judgment debt; (11) tax the attorney’s fees incurred in this proceeding against
Defendant, GABRIEL KIRCHBERGER; and (11) award such other and further relief that the
Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing document on August 28,
2019 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,
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
57243437v1 Page 14 of 15
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.chesanek@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. 0029355
Drew F. Chesanek
Florida Bar No. 115933
57243437v1 Page 15 of 15
* RECORDED IN OFFICIAL RECORDS
INSTRUMENT# 2016143668 6 PG(S)
11/18/2016 2:15PM
KAREN E, RUSHING Court File No. CV-10-8534-00¢ 17-917 CA
CLERK OF THE CIRCUIT COURT
SARASOTA COUNTY, FLORIDA
ONTARI
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CIVIL COURTS
COMMERCIAL LIST
THE HONOURABLE ) me OS"
MADAM JUSTICE THORBURN ) DAY OF Fjord) aolk
BETWEEN:
QOlle CA BETA NC
(Court Seal),
HARRY BIEBERSTEIN
Plaintiff
and
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INC.,
VIKTORIA SCHMIDT, NOMEN FITNESS
GABRIEL KIRCHBERGER, SUSANNE
ARIO LIMITED CARRYING ON
487223 ONTARIO LIMITED an d 1171852 ONT
T SERVICE
BUSINESS AS G.K. YORK MAN AGEMEN
Defendants
JUDGMENT
was heard between February 7, 2014
and March 9, 2014 without a
THIS ACTION
rio, M5G 1R7,
ty Avenue, 8th Floor, Toronto, Onta
jury at the court house, 330 Universi
es,
in the presence of the lawyers for all parti
the
THE PLEADINGS AND HEARING THE EVIDENCE and
ON READING
submissions of the lawyers for the parties,
DECLARE! 'S AND ADJUDGES that Acknowledgments between
1 THIS COURT
Bank are enforceable.
Gabriel Kirchberger and Berlin Hypo
EXHIBIT
A
a
Filed 11/18/2016 01:05 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
2-
THIS COURT DECLARES AND ADJUDGES that the Plaintiff is entitled to
enforce against the assets of Gabriel Kirchberger located in Ontario in the manner
and to the extent as if he had obtained judgment against Kirchberger for the
payment of money in the amount of the liability assumed in the
acknowledgments, as quantified in Paragraph 3 below.
THIS COURT DECLARES AND ADJUDGES that the amount of the liability
assumed in the Acknowledgements is €8,391,909.49, inclusive of pre-judgment
interest through to the date of this judgment, plus any post-judgment interest
accrued on the unpaid balance of the liability assumed in the Acknowledgements,
which shall accrue at a rate of 3% per year.
THIS COURT DECLARES AND ADJUDGES that the Claim to enforce the
Acknowledgment between Gabriel Kirchberger and Hypo Bank is dismissed.
THIS COURT DECLARES AND ADJUDGES that the claim in fraud and unjust
enrichment against Gabriel Kirchberger is dismissed.
THIS COURT DECLARES AND ADJUDGES that the claim against Susanne
Viktoria Schmidt, Nomen Fitness Inc., 487223 Ontario Limited and 1171852
Ontario Limited carrying on business as G.K. York Management Services for
unjust enrichment in relation to the Banks is dismissed.
a
County, FL
16 01:0 5 PM - Kare n E. Rush ing, Clerk of the Circuit Court, Sarasota
Filed 11/1 8/20
3.
THIS COURT DECLARES AND ADJUDGES that the Defendant Gabriel
Kirchberger pay to the Plaintiff costs and disbursements in the amount of
$56,738.67, inclusive of HST.
THIS COURT DECLARES AND ADJUDGES that the Plaintiff pay to Ms.
Susanne Viktoria Schmidt costs in the amount of $5,000.00.
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Filed 11/18/2016 01:05 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
CIVIL DIVISION
HARRY BIEBERSTEIN,
Plaintiff
Vv. Case No.:
GABRIEL KIRCHBERGER, SUSANNE VIKTORIA
SCHMIDT, NOMEN FITNESS INC., 487223
ONTARIO LIMITED and 1171852 ONTARIO
LIMITED CARRYING ON BUSINESS AS
G.K.YORK MANAGEMENT SERVICE,
Defendants.
/
AFFIDAVIT OF DEFENDANT’S LAST KNOWN ADDRESS
STATE OF FLORIDA
COUNTY OF COLLIER
BEFORE ME this day, an officer duly qualified to take acknowledgments in the County
and State aforesaid, personally appeared MARK A. SLACK, ESQ., who, being first duly sworn,
deposes and says:
a) Defendant's name is GABRIEL KIRCHBERGER.
b) The last known addresses of the Defendant are: 608 Harvard Street, Englewood,
Florida 34223 and 15204 Leipzig Circle, port Charlotte, Florida 33981
| declare under penalty of perjury that the foregoing is true and correct to the best of my
knowledge, information and belief.
Further Affiant sayeth naught.
(WU
Mark A. Slack
Florida Bar No.: 394785
WOODS, WEIDENMILLER, MICHETTI, RUDNICK
& GALBRAITH, PLLC
9045 Strada Stell Court, Suite 400
Naples, Florida 34109
(239) 325-4070 — Telephone
(239) 325-4080 — Facsimile
mslack@wwmrglaw.com
Odia: rglaw.com
SS
Filed 11/18/2016 01:05 PM - Karen E, Rushing, Clerk of the Circuit
Court, Sarasota County, FL
The foregoing instrument was aj ledged bef; re me this LS day of November,
2016, by Mark A. Slack, who is person: qwn to me fi who did take an oath.
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Sarasota County, FL
Filed 11/18/2016 01:05 PM - Karen E. Rushing, Clerk of the Circuit Court,
[X) IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA
[71 IN THE COUNTY COURT IN AND FOR SARASOTA COUNTY, FLORIDA
CASE NUMBER: 2016 CA 005872 NC
HARRY BIEBERSTEIN
Plaintiff
~ VS -
GABRIEL KIRCHBERGER
Defendant
NOTICE OF RECORDING
TO: GABRIEL KIRCHBERGER
608 HARVARD STREET
ENGLEWOOD, FL 34223-2818
Please be advised that the attached Judgment has been recorded in the Official Records. This-judgment may become a lien
‘on your property unless you act within 30 days. For additional information, consult with an attorney or refer to Section 55.505
et. Seq. or 55.601 et. Seq., Florida Statutes
HARRY BIEBERSTEIN MARK ALAN SLACK
Judgment Creditor Attorney for Judgment Creditor
Address is unknown WOODS, WEIDENMILLER , MICHETTI ET AL
1045 STRADA STELL COURT, STE. 400
NAPLES, FL. 34109
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true copy of the foregoing has been delivered by U.S. Mail to the above named addressee.
KAREN E. RUSHING, CLERK
sooth,
3S. Py
" CLERK OF THE CIRCUIT COURT
3%
Nad, Seca CPimcteing,
C Brandenburg, Deputy Clerk DATE: . November 18, 2016
Page 1 of 1
A
ty, FL
g, Clerk of the Circuit Court, Sarasota Coun
Filed 11/18/2016 01:18 PM - Karen E. Rushin
[X] IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA
(7 IN THE COUNTY COURT IN AND FOR SARASOTA COUNTY, FLORIDA
CASE NUMBER: 2016 CA 005872 NC
HARRY BIEBERSTEIN
Plaintiff
= VS -
GABRIEL KIRCHBERGER
Defendant
NOTICE OF RECO
Preview
Filing # 94938674 E-Filed 08/28/2019 05:01:26 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, HARRY BIEBERSTEIN’S, MOTIONS FOR RECONSIDERATION OF FINDINGS IN THIS COURT’S JULY 24, 2018 NON-FINAL ORDER AND FOR PROCEEDINGS SUPPLEMENTARY Plaintiff/Judgment Creditor, HARRY BIEBERSTEIN, moves this Court for reconsideration of the finding that the Out-of-Country Foreign Judgment is not a money judgment in its July 24, 2018 Non-Final Order and moves for commencement of proceedings supplementary pursuant to Florida Statute §56.29. In support thereof, Plaintiff states: MOTION FOR RECONSIDERATION Procedural Background and Authority to Reconside! 1 Plaintiff is the assignee of seven German Debt Acknowledgments (“Acknowledgments”) originally given to Berlin Hypo Bank, a German bank, by Defendant, GABRIEL KIRCHBERGER (“Gabriel”), in order to evidence certain loans. 2 Under German law, the Acknowledgments allow for recovery of debt without the need for a judgment. They are explained by the Maine Supreme Court in GENUJO LOK Beteiligungs GmbH vy. Zorn, 943 A.2d 573, 575 (Me. 2008) as agreements which provide for (a) 57243437v1 Page | of 15 acknowledgment of indebtedness; (b) the basis of liability; and (c) immediately compulsory attachment of all assets without the need for a judgment. It is only when the debtor on such acknowledgments has assets outside of Germany that a judgment is necessary. Jd. at 576. 3 In 2010, Plaintiff brought the suit against Gabriel, among others, in order to enforce the Acknowledgments in Ontario, Canada captioned Harry Bieberstein v. Gabriel Kirchberger, et al., Court File No. CV-10-8534-00CL and CV-10-8535-00CL (Ontario Superior Court of Justice). On September 26, 2016, the court therein entered the judgment attached hereto as Exhibit “A” in Plaintiffs favor and against Gabriel (the “Ontario Judgment”), which provides: a, “[TJhat the amount of the liability assumed in the Acknowledgements is €8,391,909.49, inclusive of pre-judgment interest through to the date of this judgment, plus any post-judgment interest accrued on the unpaid balance of the liability assumed in the Acknowledgements, which shall accrue at the rate of 3% per year;” and “[{T]hat the Defendant Gabriel Kirchberger pay to the Plaintiff costs and disbursements in the amount of [CAN]$56,738.67, inclusive of HST.” 4 On November 18, 2016, Plaintiff recorded a certified copy of the Ontario Judgment in the Public Records of Sarasota County, Florida and also recorded an affidavit in accordance with § 55.601, Fla. Stat., et seq. 5 The Sarasota County Clerk of the Circuit Court docketed the Judgment under Case No. 2016 CA 5872 NC and mailed Defendant/Judgment Debtor GABRIEL KIRCHBERGER the notice of the recording as required by § 55.604(1)(b), Fla. Stat. on November 18, 2016. See Exhibit “B.” The notice specifically stated “This judgment may 57243437v1 Page 2 of 15 become a lien on your property unless you act within 30 days. For additional information, consult with an attorney or refer to Section 55.505, et. Seq. or 55.601 et. Seq., Florida Statutes.” 6 The Sarasota County Clerk of Court’s Docket does not reflect that the notice was returned undeliverable or otherwise failed to be delivered to Defendant, Gabriel. 7. Defendant, Gabriel, did not file a “notice of objection with the clerk of the court specifying the grounds for nonrecognition or nonenforceability” under the Uniform Out-of- country Foreign Money-Judgment Recognition Act (“UFMJRA”) within 30 days after service of the notice. 8 Pursuant to § 55.604(4), Fla. Stat., “If the judgment debtor fails to file a notice of objection within the required time, the clerk of the court shall record a certificate stating that no objection has been filed.” 9 For unknown reasons, despite its statutory duty to do so, the Sarasota County Clerk of the Circuit Court did not record a certificate stating that no objection had been filed. 10. Had an order been entered or had the Clerk recorded the certificate that it was statutorily mandated to record, the Judgment would be enforced in the same manner as a Florida judgment as required by §55.604(5), Fla. Stat. 11. Section 55.604(3), Fla. Stat. provides the procedure that the parties are intended to follow in the event that an objection is filed within thirty (30) days. It provides: “[u]pon the application of any party, and after proper notice, the circuit court shall have jurisdiction to conduct a hearing, determine the issues, and enter an appropriate order granting or denying recognition in accordance with the terms of this act.” 12. Rather than seeking to have the Clerk comply with its statutory duty or filing a motion for an order granting recognition of the Judgment in accordance with the terms of the 57243437v1 Page 3 of 15 UFMIJRA, Plaintiff, through predecessor counsel, filed a Complaint. Defendants moved to dismiss the complaint and a hearing was held upon their motions. 13. Although no party applied for the court to enter an order granting or denying recognition of the Judgment in accordance with the UFMJRA, on July 24, 2018, this Court entered an Order that denied recognition of the Judgment under the UFMJRA as part of its Order granting the motions to dismiss and granting Plaintiffs ore tenus motion to amend his pleadings. A copy of said Order is attached hereto as Exhibit “C.” Prior to the 2014 amendments to Rule 9.130(a)(4) of the Florida Rules of Appellate Procedure, this Order would have been immediately appealable. However, due to the deletion of “[o]ther non-final orders entered after final order” makes it clear that this Order cannot be appealed until the entry of a subsequent final order. Accordingly, this Court retains jurisdiction and has the authority to reconsider its conclusion as recognized in Comm. Garden Mall y. Success Academy, Inc., 453 So. 2d 934, 934- 35 (Fla. 4th DCA 1984) and North Shore Hospital Inc. v. Barber, 143 So. 2d 849 (Fla. 1962). Recognition of Out-of-Country Judgments under UFMJRA 14. “The UFMJRA was adopted in Florida in 1994 to ensure the recognition abroad of judgments rendered in Florida. The Act replaced common law principles of comity relating to the recognition of foreign judgments. The UFMJRA by its terms applies to foreign judgments that are final, conclusive, and enforceable where they were rendered.” Nadd y. Le Credit Lyonnais, 804 So. 2d 1226, 1228 (Fla. 2001). Florida’s UFMJRA is the 1962 version of the UFMIRA. Florida has not adopted the 2005 revision. 15. “A foreign judgment is defined simply as ‘any judgment of a foreign state granting or denying recovery of a sum of money.”” Kramer v. Von Mitschke-Collande, 5 So. 3d 689, 689 (Fla. 3d DCA 2008)(quoting § 55.602(2), Fla. Stat.) 57243437v1 Page 4 of 15 16. The UFMJRA’s procedural provisions need not be followed exactly in order for a foreign cost judgment to be enforceable. It is sufficient for the judgment creditor to substantially comply with the notice requirements. Frymer v. Brettschneider, 696 So. 2d 1266, 1267-68 (Fla. 4th DCA 1997). 17. Under the UFMJRA, the judgment creditor carries the initial burden to show that the judgment meets the requirements of the UFMJRA. Osorio v. Dole Food Co., 665 F. Supp. 2d 1307, 1323-24 (S.D. Fla. 2009). Thereafter, the burden shifts to the debtor on said judgment to specify and prove a ground for non-recognition. Kramer, 5 So. 3d at 690. 18. In Casado vy. Sanson-Cunillera, 2015 Fla. Cir. LEXIS 23 (11th Cir. Ct. June 2, 2014) (per curium aff'd Sanson-Cunillera v. Casado, 187 So, 3d 1252 (Fla. 3d DCA 2016)), a Florida Circuit Court recognized an out-of-country foreign judgment and stated “one look at the Dominican Order reveals that it was intended to be a final judgment .... The Judgment, after all, is twenty-five pages long and was issued by a three-judge panel where one judge dissented. The Order also recaps the evidence the court reviewed and contains factual findings based on this evidence that were then applied to the relevant laws. Sanson was ... required to pay Casado’s attorney fees, court costs, and a monetary award as compensation for her domestic violence injuries.” 19, In Cont’l Transfert Technique Ltd. v. Fed. Gov’t of Nigeria, 697 F. Supp. 2d 46, 62-63 (D.D.C. 2010), the court held that an order of an English court that provided: IT IS ORDERED THAT . . . judgment be entered against the Defendants in the terms of the said Award, namely (a) that the Defendants pay to the Claimant the sum of Nigerian Naira 29,660, 166,207.48; (b) that the Defendants pay to the Claimant US Dollar 247,500.00 in respect of the Claimant's legal costs incurred in the arbitration; 57243437v1 Page 5 of 15 (c) to the extent that the Claimant has paid more than 5% of the costs of the arbitration ., that the Defendants reimburse the Claimant for any such excess payments. This Order is absolute, and the Claimant is entitled to apply for enforcement of this judgment. was a judgment entitled to recognition because it granted “the right to recover ‘a sum of money’ and even refers to itself as a judgment,” which were “clear indications that the order constitutes a judgment within the meaning of the UFMJRA.” 20. Similarly, the Court in Zorn, 943 A. 2d at 578 held that the German judgment sought to be domesticated in Maine “falls within the plain meaning of ‘foreign judgment’ as it is defined in [Maine’s codification of the UFMJRA]. The May 10, 2004 decision is titled ‘Judgement [sic];’ was issued by a foreign court and bears the seal of that court; grants recovery of a sum of money; and is not ‘a judgment for taxes, a fine or other penalty or a judgment for support in matrimonial or family matters.” 21. Finally, the Massachusetts Supreme Court interpreted that state’s adoption of the UFMJRA, which is identical to Florida’s, to allow enforcement of a Canadian judgment for attorneys’ fees in Ducharme v. Hunnewell, 411 Mass 711, 713-716 (1992). 22. The issue before the Court pursuant to this Motion is whether the Ontario Judgment, on its face, “grant[s] or den[ies] recovery of a sum of money.” Application of the UFMJRA to the Ontario Judgment 23. Here, the Court’s Order does not explain its basis for determining that the Ontario Judgment is not a “money judgment as defined by § 55.602(2), Fla. Stat.” 24. However, the transcript of the hearing filed with the clerk on July 18, 2018 is instructive. The Court was not provided with any case law interpreting UFMJRA’s definition of 57243437v1 Page 6 of 15 “Out-of-country foreign judgment” which is codified by the Florida Legislature at § 55.602(2), Fla. Stat. and defined 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.” 25. Moreover, none of the attorneys at the hearing argued the correct standard. Counsel for DeVille argued that the Ontario Judgment is not a “money judgment.” Transcript at 5. This erroneous terminology was followed by Plaintiffs former counsel, id. at 23, and adopted by the Court. /d. at 34-35. 26. Additionally, because the Court was ruling on motions to dismiss, it believed that it was limited to the allegations of the Complaint. See id. at 34. However, the case law makes clear that the Court is not limited to the text of the judgment when determining whether an out- of-country foreign judgment is entitled to recognition under the UFMJRA. Societe Civile Succession Richard Guino y. Redstar Corp., 153 Cal. App. 4th 697, 702 (2007). 27. The Ontario Judgment is titled “JUDGMENT” and provides: 1 THIS COURT DECLARES AND ADJUDGES that Acknowledgments between Gabriel Kirchberger and Berlin Hypo Bank and enforceable. THIS COURT DECLARES AND ADJUDGES that the Plaintiff is entitled to enforce against the assets of Gabriel Kirchberger located in Ontario in the manner and to the extent as if he had obtained judgment against Kirchberger for the payment of money in the amount of the liability assumed in the acknowledgments, as quantified in Paragraph 3 below. THIS COURT DECLARES AND ADJUDGES that the amount of the liability assumed in the Acknowledgments is €8,391,909.49, inclusive of pre-judgment interest accrued on the unpaid balance of the liability assumed in the Acknowledgments, which shall accrue at a rate of 3% per year. THIS COURT DECLARES AND ADJUDGES that the Claim to enforce the Acknowledgment between Gabriel Kirchberger and Hypo Bank is dismissed. THIS COURT DECLARES AND ADJUDGES that the claim in fraud and unjust enrichment against Gabriel Kirchberger is dismissed. 57243437v1 Page 7 of 15 6. THIS COURT DECLARES AND ADJUDGES that the claim against Susanne Viktoria Schmidt, Nomen Fitness, Inc. 487223 Ontario Limited and 1171858 Ontario Limited carrying on business as G.K. York Management Services for unjust enrichment in relation to the Banks is dismissed. THIS COURT DECLARES AND ADJUDGES that the Defendant Gabriel Kirchberger pay to the Plaintiff costs and disbursements in the amount of [CAN]$56,738.67, inclusive of HST. 28. The Ontario Judgment both grants and denies recovery of a sum of money. It grants Plaintiff recovery of €8,391,909.49 in paragraphs 2 and 3. It denies Plaintiff's request for recovery in paragraphs 5 and 6, It grants Plaintiff recovery of an additional CAN$56,738.67 in paragraph 7. In fact, the language of paragraph 7 of the Ontario Judgment is almost identical to the language of the judgment in Cont’! Transfert Technique Ltd., 697 F. Supp. 2d at 62-63. 29. The fact that the Ontario Judgment grants and denies a recovery of a sum of money is further supported by the transcript of proceedings held before the Ontario Court on February 10, 2014 whereat the parties argued concerning the form that the judgment would take. During the argument, Counsel for Gabriel argued “So, so that we’re clear, I accept for the purpose of this action that if Mr. Bieberstein properly holds the acknowledgments and obtains an order here in Ontario, he can enforce against Mr. [Gabriel] Kirchberger’s assets here in Ontario. You don’t have to get into the wherever situated business, because if the acknowledgement is property domesticated here and it’s properly held by Mr. Bieberstein and it’s enforceable for a particular sum of money, Mr. Bieberstein would, in virtue of the order that this Court grants, be entitled to look to the assets of Mr. [Gabriel] Kirchberger in Ontario to satisfy that judgment.” See Excerpt of Transcript of Proceedings attached hereto as Exhibit “D” at 137-38! 30. The Defendants’ arguments that the Ontario Judgment is not “a money judgment” is most similar to the arguments put forth by the defendants and rejected by the District Court in ' This full transcript was previously filed with the Court on March 20, 2018. 57243437v1 Page 8 of 15 V. Corp. Ltd. v. Redi Corp. (USA), 2004 WL 2290491, 2004 U.S. Dist. LEXIS 20424 (S.D.N.Y. October 9, 2004). Therein, the plaintiff sought to domesticate an English arbitration award that had been confirmed by an English Court under New York’s UFMJRA. In the English Court’s order, it held that the plaintiff could “enforce the arbitral award ‘in the same manner as a judgment or order to the same effect.”” The defendants argued that the English Court’s order was not enforceable under the UFMJRA because it “did not qualify as a ‘judgment’ because it was a mere ‘order’ granting permission to enforce the arbitral award as a judgment.” The District Court rejected the defendants’ argument and held that it “elevates form over substance,” that the order was the “functional equivalent’ of an English judgment,” and that the order was enforceable under the UFMJRA. In doing so, the District Court summarized the holdings of other courts in rejecting similar arguments: Several other cases have demonstrated the functional, as opposed to formalistic, approach that courts have taken when deciding which judicial acts qualify for recognition as foreign country judgments. See, e.g., Island Territory of Curacao v. Solitron Devices, Inc., 489 F.2d 1313, 1317, 1323 (2d Cir. 1973) (Curacao court’s issuance of “writ of execution” on local arbitral award functioned as final judgment under Curacao law, even though award left it open to either party to demand further arbitration and obtain more extensive damages); J. G. Mailaender Druckmaschinenfabrik GmbH & Co. K. G. y. Otto Isenschmid Corp., 88 A.D.2d 654, 450 N.Y.S.2d 533 (2d Dep’t 1982) (judicial settlement concluded in German court was equivalent of consent judgment and thus constituted foreign country judgment under [the UFMJRA]); Overseas Development Bank in Liquidation v. Nothmann,115 A.D.2d 719, 720-21, 496 N.Y.S.2d 534, 535-36 (2d Dep't 1985) (two English default money judgments recognized as enforceable in England pursuant to special order of High Court of Justice, Queen’s Bench Division, even though enforcement of judgments was otherwise time-barred). Defendant protests that plaintiff cannot make the High Court Order a “judgment” simply by calling it a “judgment.” (Def.'s Reply Mem. of Law at 5)[.] The decisions discussed above, however, turn not on whether a foreign court decree is formally titled a “judgment,” but rather whether the decree is “final, conclusive and enforceable where rendered,” as required by [the UFMJRA]. Of particular importance here is the statutory requirement that the foreign decree be enforceable “where rendered” -- that is, in the English courts. See, e.g., Seetransport, 989 F.2d 572, 583 (2d Cir. 1993) (remanding to determine 57243437v1 Page 9 of 15 “whether the decision of the Court of Appeals of Paris is enforceable in France”) (emphasis added); Island Territory of Curacao vy. Solitron Devices, Inc., 489 F.2d 1313, 1323 (2d Cir. 1973) (holding that decree “was conclusive and enforceable in Curacao”). 31. The Ontario Judgment facially recognizes that is the functional equivalent of a money judgment when it says that Plaintiff may “enforce against the assets of Gabriel Kirchberger located in Ontario in the manner and to the extent as if he had obtained judgment against Kirchberger for the payment of money.” The Ontario Judgment may be enforced as a judgment in Ontario, accordingly, under the above-quoted authorities, it qualifies for recognition in Florida under the UFMJRA. Conclusion of Arguments upon Motion for Reconsideration 32. Based upon the foregoing, this Court should (a) reconsider the finding that the Ontario Judgment is not subject to recognition in Florida under the UFMJRA; (b) in determining whether the Ontario Judgment may be recognized in Florida under the UFMJRA, consider (i) the actual language of § 55.602(2), Fla. Stat., (ii) the aforementioned case law, and (iii) the contents of the Transcript of the February 10, 2014 hearing before the Ontario Court; (c) determine that insofar as the Ontario Judgment awards recovery of €8,391,909.49, it is entitled to recognition in Florida under the UFMJRA; (d) determine that insofar as the Ontario Judgment awards recovery of CAN$56,738.67, it is entitled to recognition in Florida under the UFMJRA; (e) enter an Order granting recognition of the award of €8,391,909.49 in the Ontario Judgment in accordance with § 55.604(3), Fla. Stat. and establishing that Plaintiff is entitled to recover the principal sum of US$8,945,775.51 (based upon the exchange rate of US$1.0660 per €1 as of November 18, 2016 in accordance with MacDonald v. International Chemalloy Corp., 473 So. 2d 760, 761 (Fla. 4th DCA 1985)) and interest of US$38,969.27 (based upon €36,556.54 (per diem of €689.745986 x 53 days) converted to USD) through November 18, 2016, together with post-judgment interest 57243437v1 Page 10 of 15 after November 18, 2016 accruing at the rate set forth in § 55.03, Fla. Stat.; (f) enter an Order granting recognition of the award of CAN$56,738.67 in the Ontario Judgment in accordance with § 55.604(3), Fla. Stat. and establishing that Plaintiff is entitled to recover the principal sum of US$41,969.59 (based upon the exchange rate of US$0.7397 per CAN$1 as of November 18, 2016) together with post-judgment interest after November 18, 2016 accruing at the rate set forth in § 55.03, Fla. Stat.; (g) dismiss Count I of the Plaintiff's Revised Second Amended Complaint as moot; and (h) convert the remaining counts of Plaintiffs Revised Second Amended Complaint to a Supplemental Complaint as requested below in accordance with § 56.29, Fla. Stat. as more fully set forth below. MOTION FOR PROCEEDINGS SUPPLEMENTARY Introduction 33. Plaintiffs who hold unsatisfied judgments are entitled to proceedings supplementary to execution pursuant to § 56.29, Fla. Stat. (2019) as a matter of law. Aside from having an unsatisfied judgment, the only prerequisites are filing a motion and an affidavit so stating, identifying the issuing court, the case number, and the unsatisfied amount of the judgment, including accrued costs and interest, and stating that the execution is valid and outstanding. § 56.29(1), Fla. Stat. The Court has no discretion to deny a motion for proceedings supplementary that meets the requirements of § 56.29(1), Fla. Stat. B&/ Contractors, Inc. v. Mel-Re Construction Management, 66 So. 3d 1035 (Fla. 2d DCA 2011). 34. The affidavit required by § 56.29(1), Fla. Stat. will be provided to the Court at the hearing on this motion. 57243437v1 Page 11 of 15 Applicable Statutes 35, Pursuant to §56.29(2), Fla. Stat., the judgment creditor “shall, in the motion describe any property of the judgment debtor not exempt from execution in the hands of any person which may be applied toward the satisfaction of the judgment. Upon filing of the motion...that property of the judgment debtor...in the custody or control of any other person may be applied to satisfy the judgment, then the Court shall issue a Notice to Appear.” 36. Pursuant to § 56.29(9), Fla. Stat., “The court may entertain claims concerning the judgment debtor’s assets brought under chapter 726 and enter any order or judgment, including a money judgment against any initial or subsequent transferee, in connection therewith, irrespective of whether the transferee has retained the property. Claims under chapter 726 brought under this section shall be initiated by a supplemental complaint and served as provided by the rules of civil procedure, and the claims under the supplemental complaint are subject to chapter 726 and the rules of civil procedure.” Transfers 37. While the Plaintiffs action in Ontario, Canada was pending, Gabriel began transferring Florida assets to DeVille, Southern, and Moonstone. Later, Gabriel transferred his ownership of Moonstone to Niclas. 38. As set forth in the Revised Second Amended Complaint filed on June 6, 2019, which is incorporated herein by reference, Gabriel transferred his Florida assets to DeVille, Southern, Moonstone, and Niclas. 39. Additionally, Gabriel’s assets are nominally held by DeVille, Frazer, Andreas, and Niclas. 40. Said transfers and instances where Gabriel’s assets are in the hands of others are subject to being set aside pursuant § 59.29, Fla. Stat. 57243437v1 Page 12 of 15 Conversion of Revised Second Amended Complaint to Supplemental Complaint 41, Accordingly, Counts II-VI of the Revised Second Amended Complaint should be converted to a Supplemental Complaint and treated as proceedings supplementary. Defendants DeVille, Southern, Moonstone, Frazer, Andreas, and Niclas should be converted to Impleaded Defendants. 42. Alternatively, Plaintiff would request leave to voluntarily dismiss Counts II-VII and immediately re-file them as a Supplemental Complaint without the need for personal service of the Supplemental Complaint upon each of the Impleader Defendants. Demand for Attorneys’ Fees 43. Plaintiff has retained the undersigned counsel to represent it in this action, and has agreed to pay them a reasonable fee for their services, and is entitled to recovery of same from Defendant/Judgment Debtor, Gabriel, pursuant to §§56.29(11) and 57.115, Fla. Stat. WHEREFORE, Plaintiff moves that the Court to: (1) reconsider the finding that the Out- of-Country Foreign Judgment is not a money judgment in its July 24, 2018 Non-Final Order; (2) find that the Out-of-Country Foreign Judgment is a money judgment; (3) enter an Order granting recognition of the award of €8,391,909.49 in the Ontario Judgment in accordance with § 55.604(3), Fla. Stat. and establishing that Plaintiff is entitled to recover the principal sum of US$8,945,775.51 (based upon the exchange rate of US$1.0660 per €1 as of November 18, 2016 in accordance with MacDonald v. International Chemalloy Corp., 473 So. 2d 760, 761 (Fla. 4th DCA 1985)) and interest of US$38,969.27 (based upon €36,556.54 (per diem of €689.745986 x 53 days) converted to USD) through November 18, 2016, together with post-judgment interest after November 18, 2016 accruing at the rate set forth in § 55.03, Fla. Stat.; (4) enter an Order granting recognition of the award of CAN$56,738.67 in the Ontario Judgment in accordance 57243437v1 Page 13 of 15 with § 55.604(3), Fla. Stat. and establishing that Plaintiff is entitled to recover the principal sum of US$41,969.59 (based upon the exchange rate of US$0.7397 per CAN$1 as of November 18, 2016) together with post-judgment interest after November 18, 2016 accruing at the rate set forth in § 55.03, Fla. Stat.; (5) dismiss Count I of the Plaintiff's Revised Second Amended Complaint as moot; (6) initiate the proceedings supplementary to execution; (7) determine that the transfers from Gabriel to the Impleaded Defendants are fraudulent; (8) determine that Southern, Moonstone and Golden are the alter-egos of Gabriel; (9) order that the Sheriff of Charlotte County levy and execute upon the assets of SOUTHERN SHORES ENTERPRISES, LLC, MOONSTONE HOLDINGS, LLC, and GOLDEN KEY PROPERTIES, LLC or that the Clerk issue a Writ of Garnishment for the assets of SOUTHERN SHORES ENTERPRISES, LLC, MOONSTONE HOLDINGS, LLC and GOLDEN KEY PROPERTIES, LLC as if it is the property of Defendant, Gabriel; (10) order that the proceeds therefrom be applied to the satisfaction of the judgment debt; (11) tax the attorney’s fees incurred in this proceeding against Defendant, GABRIEL KIRCHBERGER; and (11) award such other and further relief that the Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing document on August 28, 2019 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, 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 57243437v1 Page 14 of 15 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.chesanek@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. 0029355 Drew F. Chesanek Florida Bar No. 115933 57243437v1 Page 15 of 15 * RECORDED IN OFFICIAL RECORDS INSTRUMENT# 2016143668 6 PG(S) 11/18/2016 2:15PM KAREN E, RUSHING Court File No. CV-10-8534-00¢ 17-917 CA CLERK OF THE CIRCUIT COURT SARASOTA COUNTY, FLORIDA ONTARI Ree PERIOR COURT OF JUSTICE CIVIL COURTS COMMERCIAL LIST THE HONOURABLE ) me OS" MADAM JUSTICE THORBURN ) DAY OF Fjord) aolk BETWEEN: QOlle CA BETA NC (Court Seal), HARRY BIEBERSTEIN Plaintiff and Xe INC., VIKTORIA SCHMIDT, NOMEN FITNESS GABRIEL KIRCHBERGER, SUSANNE ARIO LIMITED CARRYING ON 487223 ONTARIO LIMITED an d 1171852 ONT T SERVICE BUSINESS AS G.K. YORK MAN AGEMEN Defendants JUDGMENT was heard between February 7, 2014 and March 9, 2014 without a THIS ACTION rio, M5G 1R7, ty Avenue, 8th Floor, Toronto, Onta jury at the court house, 330 Universi es, in the presence of the lawyers for all parti the THE PLEADINGS AND HEARING THE EVIDENCE and ON READING submissions of the lawyers for the parties, DECLARE! 'S AND ADJUDGES that Acknowledgments between 1 THIS COURT Bank are enforceable. Gabriel Kirchberger and Berlin Hypo EXHIBIT A a Filed 11/18/2016 01:05 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2- THIS COURT DECLARES AND ADJUDGES that the Plaintiff is entitled to enforce against the assets of Gabriel Kirchberger located in Ontario in the manner and to the extent as if he had obtained judgment against Kirchberger for the payment of money in the amount of the liability assumed in the acknowledgments, as quantified in Paragraph 3 below. THIS COURT DECLARES AND ADJUDGES that the amount of the liability assumed in the Acknowledgements is €8,391,909.49, inclusive of pre-judgment interest through to the date of this judgment, plus any post-judgment interest accrued on the unpaid balance of the liability assumed in the Acknowledgements, which shall accrue at a rate of 3% per year. THIS COURT DECLARES AND ADJUDGES that the Claim to enforce the Acknowledgment between Gabriel Kirchberger and Hypo Bank is dismissed. THIS COURT DECLARES AND ADJUDGES that the claim in fraud and unjust enrichment against Gabriel Kirchberger is dismissed. THIS COURT DECLARES AND ADJUDGES that the claim against Susanne Viktoria Schmidt, Nomen Fitness Inc., 487223 Ontario Limited and 1171852 Ontario Limited carrying on business as G.K. York Management Services for unjust enrichment in relation to the Banks is dismissed. a County, FL 16 01:0 5 PM - Kare n E. Rush ing, Clerk of the Circuit Court, Sarasota Filed 11/1 8/20 3. THIS COURT DECLARES AND ADJUDGES that the Defendant Gabriel Kirchberger pay to the Plaintiff costs and disbursements in the amount of $56,738.67, inclusive of HST. THIS COURT DECLARES AND ADJUDGES that the Plaintiff pay to Ms. Susanne Viktoria Schmidt costs in the amount of $5,000.00. Sw TO ENTERE DAT} INSCAIT ATORON : tel BOOK DANS LE REGISTRE NO: SEP 2.6 2016 pen reanl/\ ST Filed 11/18/2016 01:05 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2 t 2.> oy bE a3 as =Z Be DBD SD xm 2 Oo mw <6 Qe wa et By AZ Za oe oo ZaQ On 2 a2 Os roOO cm ty _ Filed 11/18/2016 01:05 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA CIVIL DIVISION HARRY BIEBERSTEIN, Plaintiff Vv. Case No.: GABRIEL KIRCHBERGER, SUSANNE VIKTORIA SCHMIDT, NOMEN FITNESS INC., 487223 ONTARIO LIMITED and 1171852 ONTARIO LIMITED CARRYING ON BUSINESS AS G.K.YORK MANAGEMENT SERVICE, Defendants. / AFFIDAVIT OF DEFENDANT’S LAST KNOWN ADDRESS STATE OF FLORIDA COUNTY OF COLLIER BEFORE ME this day, an officer duly qualified to take acknowledgments in the County and State aforesaid, personally appeared MARK A. SLACK, ESQ., who, being first duly sworn, deposes and says: a) Defendant's name is GABRIEL KIRCHBERGER. b) The last known addresses of the Defendant are: 608 Harvard Street, Englewood, Florida 34223 and 15204 Leipzig Circle, port Charlotte, Florida 33981 | declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information and belief. Further Affiant sayeth naught. (WU Mark A. Slack Florida Bar No.: 394785 WOODS, WEIDENMILLER, MICHETTI, RUDNICK & GALBRAITH, PLLC 9045 Strada Stell Court, Suite 400 Naples, Florida 34109 (239) 325-4070 — Telephone (239) 325-4080 — Facsimile mslack@wwmrglaw.com Odia: rglaw.com SS Filed 11/18/2016 01:05 PM - Karen E, Rushing, Clerk of the Circuit Court, Sarasota County, FL The foregoing instrument was aj ledged bef; re me this LS day of November, 2016, by Mark A. Slack, who is person: qwn to me fi who did take an oath. A Wig oN {s Ia DIANAB. DIAZ ‘Wotary Public - State of Florida Se mm plic Sdn My Commission Exp ires: 0 p19 Commission @ FE 915550 My Comm. Expires Dec 26, 2019) Banded tyough National Notary heen. . —— Sarasota County, FL Filed 11/18/2016 01:05 PM - Karen E. Rushing, Clerk of the Circuit Court, [X) IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA [71 IN THE COUNTY COURT IN AND FOR SARASOTA COUNTY, FLORIDA CASE NUMBER: 2016 CA 005872 NC HARRY BIEBERSTEIN Plaintiff ~ VS - GABRIEL KIRCHBERGER Defendant NOTICE OF RECORDING TO: GABRIEL KIRCHBERGER 608 HARVARD STREET ENGLEWOOD, FL 34223-2818 Please be advised that the attached Judgment has been recorded in the Official Records. This-judgment may become a lien ‘on your property unless you act within 30 days. For additional information, consult with an attorney or refer to Section 55.505 et. Seq. or 55.601 et. Seq., Florida Statutes HARRY BIEBERSTEIN MARK ALAN SLACK Judgment Creditor Attorney for Judgment Creditor Address is unknown WOODS, WEIDENMILLER , MICHETTI ET AL 1045 STRADA STELL COURT, STE. 400 NAPLES, FL. 34109 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true copy of the foregoing has been delivered by U.S. Mail to the above named addressee. KAREN E. RUSHING, CLERK sooth, 3S. Py " CLERK OF THE CIRCUIT COURT 3% Nad, Seca CPimcteing, C Brandenburg, Deputy Clerk DATE: . November 18, 2016 Page 1 of 1 A ty, FL g, Clerk of the Circuit Court, Sarasota Coun Filed 11/18/2016 01:18 PM - Karen E. Rushin [X] IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA (7 IN THE COUNTY COURT IN AND FOR SARASOTA COUNTY, FLORIDA CASE NUMBER: 2016 CA 005872 NC HARRY BIEBERSTEIN Plaintiff = VS - GABRIEL KIRCHBERGER Defendant NOTICE OF RECO