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Filing # 94669259 E-Filed 08/23/2019 11:25:23 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
HARRY BIEBERSTEIN,
Plaintiff,
Vv. CASE NO.: 17-CA-917
GABRIEL KIRCHBERGER, CAROL DEVILLE,
SOUTHERN SHORES ENTERPRISES, LLC, a
Florida limited liability company and
MOONSTONE HOLDINDINGS, LLC, a
Nevada limited liability company,
Defendants,
DEFENDANT, GOLDEN KEY PROPERTIES, LLC’s
MOTION FOR PROTECTIVE ORDER
Defendant, GOLDEN KEY PROPERTIES, LLC, through counsel, files this Motion for
Protective Order pursuant to Florida Rule of Civil Procedure 1.280(c), and states:
1)Plaintiff filed a First Request for Production of Documents to Defendant, GOLDEN
KEY PROPERTIES, LLC, on July 25, 2019.
2)This action originates from the assignment of a German debt to the Plaintiff which
resulted in an Ontario, Canada judgment enforceable only in that jurisdiction against Defendant
GABRIEL KIRCHBERGER and others not a party in this instant action but not including
movant, GOLDEN KEY PROPERTIES, LLC.
3)Plaintiff thereafter sought to domesticate the Canadian Judgment in Charlotte County,
Florida and in ruling on Motions to Dismiss brought by the Defendants, the Court specifically
held by Order dated July 24, 2018:
CASE NO. 17-CA-917
"The Out-of-Country Foreign Judgment entered by the Ontario
Superior Court of Justice on September 23, 2016 against Gabriel
Kirchberger, Susanne Viktoria Schmidt, Nomen Fitness, Inc,, 487223
Ontario Limited and 1171852 Ontario Limited Carrying on Business as
G.K. York Management Service, is not a money judgment and therefore
cannot be recognized and enforced under the Out-of-Country Foreign-
Money Judgment Act.”
The Court found that the judgment obtained by the Plaintiff in Canada is not a money
judgment and could not be domesticated in Charlotte County, Florida and such ruling
constitutes the law of the case, Florida Department of Transportation v. Juliano, 801 So.2d 101
(Fla. 2001).
4) Count I of the Revised Second Amended Complaint purports to be a collection action
against Defendant GABRIEL KIRCHBERGER and alleges entitlement to a judgment against
Kirchberger based on assignment of the German Debt.
5) Count VI of the Revised Second Amended Complaint alleges that Defendant
GOLDEN KEY PROPERTIES, LLC is the alter ego of Defendant GABRIEL,
KIRCHBERGER.
6) Exhibit “8" to the Revised Second Amended Complaint is the Ontario judgment
which provides in paragraph 2:
This Court declares and adjudges the Plaintiff is entitled to enforce the
assets of Gabriel Kirchberger located in Ontario in the manner to the
extent as if he had obtained a judgment against Kirchberger for the
payment of money in the amount of the liability assumed in the
acknowledgments, as quantified in paragraph 3 below.
7) Pursuant to Florida Statutes Chapter 726 and the rulings referenced above, Plaintiff is
neither a “creditor" nor does he hold a “claim" enforceable under said statutes thereby rendering the
discovery irrelevant. Materials being sought must be relevant to the matters in the pending action.
Friedman v. Heart Institute. of Port St. Lucie, Inc., 63 So.2d 189 (Fla. 2003).
CASE NO. 17-CA-917
8) That Count VI fails to state a cause of action for declaratory relief establishing that
Defendant GOLDEN KEY PROPERTIES, LLC and its current assets are available in order to
satisfy the yet unestablished debt Plaintiff claims is owed. Plaintiff in effect seeks disregard of
the corporate entity.
9) 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.
10)That 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 GOLDEN KEY PROPERTIES, 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 GOLDEN KEY PROPERTIES, 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.
11)That GOLDEN KEY PROPERTIES, 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. Moldenda 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:
CASE NO. 17-CA-917
a) 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,
b)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.
c) That the fraudulent or improper use of the corporate form or the improper
conduct imposed an actual injury on the claimant.
Plaintiff alleges nothing respecting GOLDEN KEY PROPERTIES, LLC in regard to
these substantive factors.
12)Trial courts have broad discretion in controlling discovery and in issuing protective
orders, Katzman v. Rediron Fabrication, Inc., 2011 WL 6373037 (Fla. Dist. Ct. App. 4th Dist.
2011).
That in deciding whether a protective order is appropriate in a particular case, the court must
balance the competing interests that would be served by granting discovery or by denying it. Alterra
Healthcare Corp. v_ Estate of Shelley, 827 So.2d 936 (Fla. 2002).
13) Plaintiff has requested of GOLDEN KEY PROPERTIES, LLC the production of
corporate documents, records, bank statements from 2012 to the present, front and backs of checks,
wire transfer receipts, all communications between and among the officers, directors, employees and
agents, payroll tax returns, K-1's, HUD-1, Settlement Statements, Sales Contracts, leases and closing
documents for over 27 properties in order to aid in the collection of a claim against Defendant
Kirchberger which is incapable of being reduced to a judgment. Plaintiff is neither a judgment
creditor nor a claimant as to Defendant, GOLDEN KEY PROPERTIES, LLC and discovery of
GOLDEN KEY PROPERTIES, LLC's financial worth and holdings in aid of execution is not
warranted.
.
CASE NO. 17-CA-917
14)The disclosure of financial information prejudgment may cause irreparable harm to an
entity forced to disclose it, in a case in which the information is not relevant. Chetu_Inc. v. Ko
Gaming. Inc_ , 261 So.3d 605 (Fla. 4" DCA 2019); Regions Bank v, MDG Frank Helmerich
LLC; 118 So.3d 968 (Fla. 2" DCA 2013).
WHEREFORE, Defendant, GOLDEN KEY PROPERTIES, LLC, seeks an Order of
protection from producing the discovery requested for the reasons stated herein together with such
other and further relief as the Court deems necessary and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing Motion for
Protective Order has been sent via Florida Courts E-Filing Portal to counsel of record this 23rd
day of August, 2019.
BAUR & KLEIN, P.A.
Attorneys for Golden Key Properties, LLC
and Andreas Kirchberger
New World Tower, Suite 2100
100 North Biscayne Boulevard
Miami, Florida 33132
Phone: (305) 377-3561 / Fax: (305) 371-4380
ee,
ff
By:
CHRISTOPHER J. KLEIN
Fla. Bar. No.: 311855
cklein@worldwidelaw.com
ocardonne@worldwidelaw.com
elaw.com
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Filing # 94669259 E-Filed 08/23/2019 11:25:23 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA HARRY BIEBERSTEIN, Plaintiff, Vv. CASE NO.: 17-CA-917 GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, LLC, a Florida limited liability company and MOONSTONE HOLDINDINGS, LLC, a Nevada limited liability company, Defendants, DEFENDANT, GOLDEN KEY PROPERTIES, LLC’s MOTION FOR PROTECTIVE ORDER Defendant, GOLDEN KEY PROPERTIES, LLC, through counsel, files this Motion for Protective Order pursuant to Florida Rule of Civil Procedure 1.280(c), and states: 1)Plaintiff filed a First Request for Production of Documents to Defendant, GOLDEN KEY PROPERTIES, LLC, on July 25, 2019. 2)This action originates from the assignment of a German debt to the Plaintiff which resulted in an Ontario, Canada judgment enforceable only in that jurisdiction against Defendant GABRIEL KIRCHBERGER and others not a party in this instant action but not including movant, GOLDEN KEY PROPERTIES, LLC. 3)Plaintiff thereafter sought to domesticate the Canadian Judgment in Charlotte County, Florida and in ruling on Motions to Dismiss brought by the Defendants, the Court specifically held by Order dated July 24, 2018: CASE NO. 17-CA-917 "The Out-of-Country Foreign Judgment entered by the Ontario Superior Court of Justice on September 23, 2016 against Gabriel Kirchberger, Susanne Viktoria Schmidt, Nomen Fitness, Inc,, 487223 Ontario Limited and 1171852 Ontario Limited Carrying on Business as G.K. York Management Service, is not a money judgment and therefore cannot be recognized and enforced under the Out-of-Country Foreign- Money Judgment Act.” The Court found that the judgment obtained by the Plaintiff in Canada is not a money judgment and could not be domesticated in Charlotte County, Florida and such ruling constitutes the law of the case, Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla. 2001). 4) Count I of the Revised Second Amended Complaint purports to be a collection action against Defendant GABRIEL KIRCHBERGER and alleges entitlement to a judgment against Kirchberger based on assignment of the German Debt. 5) Count VI of the Revised Second Amended Complaint alleges that Defendant GOLDEN KEY PROPERTIES, LLC is the alter ego of Defendant GABRIEL, KIRCHBERGER. 6) Exhibit “8" to the Revised Second Amended Complaint is the Ontario judgment which provides in paragraph 2: This Court declares and adjudges the Plaintiff is entitled to enforce the assets of Gabriel Kirchberger located in Ontario in the manner to the extent as if he had obtained a judgment against Kirchberger for the payment of money in the amount of the liability assumed in the acknowledgments, as quantified in paragraph 3 below. 7) Pursuant to Florida Statutes Chapter 726 and the rulings referenced above, Plaintiff is neither a “creditor" nor does he hold a “claim" enforceable under said statutes thereby rendering the discovery irrelevant. Materials being sought must be relevant to the matters in the pending action. Friedman v. Heart Institute. of Port St. Lucie, Inc., 63 So.2d 189 (Fla. 2003). CASE NO. 17-CA-917 8) That Count VI fails to state a cause of action for declaratory relief establishing that Defendant GOLDEN KEY PROPERTIES, LLC and its current assets are available in order to satisfy the yet unestablished debt Plaintiff claims is owed. Plaintiff in effect seeks disregard of the corporate entity. 9) 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. 10)That 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 GOLDEN KEY PROPERTIES, 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 GOLDEN KEY PROPERTIES, 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. 11)That GOLDEN KEY PROPERTIES, 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. Moldenda 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: CASE NO. 17-CA-917 a) 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, b)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. c) That the fraudulent or improper use of the corporate form or the improper conduct imposed an actual injury on the claimant. Plaintiff alleges nothing respecting GOLDEN KEY PROPERTIES, LLC in regard to these substantive factors. 12)Trial courts have broad discretion in controlling discovery and in issuing protective orders, Katzman v. Rediron Fabrication, Inc., 2011 WL 6373037 (Fla. Dist. Ct. App. 4th Dist. 2011). That in deciding whether a protective order is appropriate in a particular case, the court must balance the competing interests that would be served by granting discovery or by denying it. Alterra Healthcare Corp. v_ Estate of Shelley, 827 So.2d 936 (Fla. 2002). 13) Plaintiff has requested of GOLDEN KEY PROPERTIES, LLC the production of corporate documents, records, bank statements from 2012 to the present, front and backs of checks, wire transfer receipts, all communications between and among the officers, directors, employees and agents, payroll tax returns, K-1's, HUD-1, Settlement Statements, Sales Contracts, leases and closing documents for over 27 properties in order to aid in the collection of a claim against Defendant Kirchberger which is incapable of being reduced to a judgment. Plaintiff is neither a judgment creditor nor a claimant as to Defendant, GOLDEN KEY PROPERTIES, LLC and discovery of GOLDEN KEY PROPERTIES, LLC's financial worth and holdings in aid of execution is not warranted. . CASE NO. 17-CA-917 14)The disclosure of financial information prejudgment may cause irreparable harm to an entity forced to disclose it, in a case in which the information is not relevant. Chetu_Inc. v. Ko Gaming. Inc_ , 261 So.3d 605 (Fla. 4" DCA 2019); Regions Bank v, MDG Frank Helmerich LLC; 118 So.3d 968 (Fla. 2" DCA 2013). WHEREFORE, Defendant, GOLDEN KEY PROPERTIES, LLC, seeks an Order of protection from producing the discovery requested for the reasons stated herein together with such other and further relief as the Court deems necessary and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing Motion for Protective Order has been sent via Florida Courts E-Filing Portal to counsel of record this 23rd day of August, 2019. BAUR & KLEIN, P.A. Attorneys for Golden Key Properties, LLC and Andreas Kirchberger New World Tower, Suite 2100 100 North Biscayne Boulevard Miami, Florida 33132 Phone: (305) 377-3561 / Fax: (305) 371-4380 ee, ff By: CHRISTOPHER J. KLEIN Fla. Bar. No.: 311855 cklein@worldwidelaw.com ocardonne@worldwidelaw.com elaw.com