Motion,Ex Parte: BIBERSTEIN, HARRY vs. KIRCHBERGER, GABRIEL

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                                Filing # 93641722 E-Filed 08/05/2019 11:04:16 AM


                         IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
                                  IN AND FOR CHARLOTTE COUNTY, FLORIDA
                                               CIVIL ACTION


                                                                       CASE NO.    17-CA-917
        HARRY BIEBERSTEIN,

                    Plaintiff,

        Vv.


        GABRIEL KIRCHBERGER, CAROL DEVILLE,
        SOUTHERN SHORES ENTERPRISES, LLC, a
        Florida limited liability company and
        MOONSTONE HOLDINGS, LLC, a
        Nevada limited liability company,


                    Defendants.
                    seinen


              GOLDEN KEY PROPERTIES, LLC’S AND ANDREAS KIRCHBERGER’S MOTION
              TO DISMISS REVISED SECOND AMENDED COMPLAINT AND FOR JUDGMENT
                                      ON THE PLEADINGS

                    Golden Key Properties, LLC (“Golden”) and Andreas Kirchberger (“Andreas”), through

       counsel, file this Motion To Dismiss the Revised Second Amended Complaint for failure to state

       a cause of action and for Judgment on the Pleadings and state:

               1    In Count VI of the Revised Second Amended      Complaint, Plaintiff seeks a declaratory

      judgment that Defendant Gabriel Kirchberger (‘Gabriel”) is the de facto owner of Defendant

       Golden Key Properties, LLC (“Golden’), that Golden is Gabriel’s alter ego, and that Golden and

      its assets are otherwise amenable to execution in connection with Gabriel’s indebtedness to

      Plaintiff.

               2.   Plaintiff's claims against Defendant Gabriel Kirschberger originated with German “Debt

      Acknowledgements” that Plaintiff sued upon in Canada, copies being attached to his pleading as
Exhibits 6A through 6G. Plaintiff's Canadian lawsuit on the “Debt Acknowledgements” resulted

in the Canadian judgment attached to his pleading as Exhibit “8”. Since Plaintiff's claims herein

are predicated upon the same “Debt Acknowledgements” that Plaintiff sued upon to obtain his

Canadian judgment, such “Debt Acknowledgements” (Exhibits 6A — 6G) have merged into such

Canadian judgment (Exhibit 8) and are not enforceable separate therefrom. JP Morgan Chase

Bank, N.A. v. Hernandez, 99 So0.3d 508 (Fla. 3% DCA         2011); Diamond R. Fertilizer Co., Inc. v.

Lake Packing Partnership, Day Packing, 743 So.2d 547 (Fla. 5" DCA 1999).

     3.   As indicated on Exhibit 8, the Canadian Court ruled that Plaintiff could enforce the

German “Debt Acknowledgements” as against Gabriel’s assets in Canada. On July 24, 2018, this

Court determined that such Canadian judgment could not be enforced in Florida, which ruling

was proper and acts herein as the law of the case. Florida Dept. of Transportation v. Juliano, 801

So.2d 101 (Fla. 2001).
     4.   Based   on the merger of the Debt Acknowledgements           into the Canadian judgment,

combined with the law of this case that such Canadian judgment cannot be enforced in Florida,

Plaintiff is judicially estopped from attempts to enforce the Debt Acknowledgements herein.

Alternatively, Plaintiff has failed to state a cause of action because his allegations in furtherance

of enforcing the Debt Acknowledgements herein conflict with and are negated by the Canadian

judgment authorizing enforcement against Gabriel’s Canadian assets. BAC Funding Consortium,

Inc. ISAOA/ATIMA vy. Jean-Jacques, 28 $0.34 936 (Fla. 2" DCA 2010).

     5.   Plaintiff has not alleged that he has a Florida judgment against Gabriel, and this Court has

already   ruled that Plaintiff's Canadian judgment,      into which    the Debt Acknowledgements

merged, is unenforceable herein. Although he lacks a Florida judgment, Plaintiff essentially seeks

to conduct pre-judgment collection efforts as against Golden and Andreas in the guise of his
Count VI claims that “Golden and its assets are otherwise amenable to execution in connection

with Gabriel’s indebtedness to Plaintiff”      As the Court is well aware, pre-judgment collection

efforts are only available in the form of such extraordinary remedies as pre-judgment gamishment

or pre-judgment attachment.

     6.   Rather than seeking a proper remedy as against Golden and Andreas (and posting the

requisite bond, etc.) in the form of pre-judgment garnishment, pre-judgment attachment, etc., or

rather than first obtaining a judgment against Gabriel and thereafter conducting post-judgment

supplementary proceedings, Plaintiff improperly seeks pre-judgment collection of assets under the

guise of a request for a declaratory judgment. Plaintiff wants the Court to declare that Golden is

Gabriel’s alter ego, and that Golden and its assets are amenable to execution in connection with

Gabriel’s indebtedness to Plaintiff, even though Plaintiff lacks a money judgment. Plaintiff is, in

essence, improperly attempting to execute on the assets of Golden and Andreas in connection

with his attempts to enforce a non-existent judgment against Gabriel.

     7.   As a matter of Jaw, Plaintiffs claims in Count VI are not the proper subject of a

declaratory judgment     action.   Since Plaintiff lacks an enforceable money judgment          against

Gabriel, the issue of whether Gabriel is Golden’s alter ego, and whether Golden and its assets are

amenable to execution, cannot possibly constitute a bona fide, actual, present, practical need for

the requested declaration. Absent a Florida money judgment against Gabriel, there is no bona fide

dispute between adversaries who present the Court with a justiciable question, so Count VI must

be dismissed for failure to state a cause of action. Grable v. Hillsborough County Port Authority,

132 So.2d 423 (Fla. 2" DCA 1961).

    8.    Additionally, without alleging the requisite ultimate facts, “Plaintiff contends that Golden

is Gabriel’s alter ego”, thereby seeking to disregard Golden as a legal entity and effectively pierce
its corporate veil. Plaintiffs allegations are based on “information and belief’, which “belief is

based upon” the alleged facts that “statements made by Gabriel disguised his ownership of

Golden” and that “Gabriel similarly disguised his ownership of Moonstone and Southern.” These

are not reasons to pierce a corporate veil. Even if a corporation is merely the alter ego of its

dominant shareholder, its corporate veil cannot be pierced so long as its separate identity was

lawfully maintained. Houri v. Boaziz, 196 So.3d 383(Fla. 3 DCA 2016).




    WHEREFORE, Golden and Andreas respectfully request that this Court dismiss the Revised

Second Amended Complaint and/or grant a judgment on the pleadings in their favor, and request

such other relief as the Court deems appropriate


                                  CERTIFICATE OF SERVICE


       WE HEREBY CERTIFY that a true and correct copy of the foregoing has been filed with

the Clerk of Court via the Florida Courts E-Filing Portal which will serve as a notice of

electronic filing upon all counsel of record this 5th 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

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                                               By:          Le
                                                           ‘STOPHER J. KLEIN
                                                      Fla. Bar. No 311855