Preview
Filing # 92272045 E-Filed 07/09/2019 03:53:08 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDI bia CIRCUIT IN AND
FOR.
CHARLOTTE COUNTY, FLORIDA CIVIL ACTION
HARRY BIBERSTEIN {
i
Plaintiff
WS.
CASH NO. 17-917-CA
GABRIEL KIRCHBERGER,
CAROL DEVILLE. 3, SOUTHERN SHORES
ENTERPRIS . LLC, a Florida limited Hability
company, and MOONSTONE HOLDINGS, LLC,
a Nevada limited liability Company,
Detendants.
DEFENDANTS NICLAS X. CIRCHBER TER, c HRISTINE FRAZER and
MOONSTONE HOLDIN -LC's MOTION TO DISMISS AND FOR JUDG NT ON
THE PLEADINGS AS TO THE PLAINTIFF”S REVISED SECOND AMENDED
COMPLAINT |
i
COMES NOW NICLAS X. KIRCHBERGER, CHRISTINE FRAZER, AND
MOONSTONE HOLDIN LLC, Defendants by and through their undersigned counsel and
files this Motion to Dismiss Plaintiff's Revised Second Ampnded Complaint and would state as
follows: |
|i
1 May 31, 2019 Plaintiff filed his Revised Sedond . Amended as to the above listed
Defendants and adding Niclas X. Kirchberger, Christine Praver, Andreas Kirchberger, and
Golden Key Properties. LLC as additional Defendants. |t
4
ie This action emanates from an assignment ofa German cebt to the Plaintiff on
which suit was brought in Toronto, Ontario Canada that produced a judgment limited to that
geographic jurisdiction against Gabriel Kirchberger and others who are not subject to this
proceeding. |
3 Thereafter Plaintiff brought the original actibn in this proceeding secking to
domesticate the Ontario, Canada Judgment in Florida, |
4 July 24,2018 this Honorable Court ruled onlthe Motions to Dismiss brought by
the original Defendants in the action and held as follows:
|t
“The Out-of-Country Foreign Judgment enlered by the Ontario Superior Court
4
of justice on September 2016 against Gubriel Kirchberger, Susanne Viktoria Schmidt.
Norman Pitmess. Inc.. 487223 Ontario Limited and 117] Ontario Limited carrying on
busin as GK York Management Servic e. is not a money judgment end therefor
e cannot be
recogniz ‘d and enforced under the Out-of-Country Foreigh Money Judgment Act.”
‘This court determined that the Canadian J udgment sought to biz enforced was
in fact nota
money Judgment and as such was unenforceable in Florida. That ruling acts
as the law of the
case. Florida Department of 1 wsportation v. Juliano, 801 So. 2d
101 (Fla. 2001
43
Count {1 of the Second Amended Complaint alleges aright of collection as to
the
Defendant Gabriel Kirchberger based on the purchase and a ignment of an alleged German
debt.
6 As drafted PlaintifY
has alleged that the German debts can be pursued separately
from prior efforts in Canada. In fact in the German debts lleged were merged into
the
Canadian Judgment and can not be separated from that judgment and es such are not
enforceable
Diamond R. Fertilizer Co. Ine v. Lake Packing Partnership Day Packing 743 So. 2D 547 (Fla
5® D 1999) |
i
7.; Count IT of the revised Amended Complaint alleges an action as to the Uniform
Fraudulent Conveyance Act regarding Southern Shores En| erprises. LLC pursuant to Florida
Statute 726.105.
8 Count II fails to state a cause of action as aiptied. the statute requires specific
allegations that a debtor make a transfer with an actual intent to hinder. delay, or defraud a
creditor without receiving a reasonably equivalent value i jexchange for the transaction and that
the debtor was engaged in a transaction for which the remaining assets of the debtor were
insufficient in relation to the business or transaction or that the debtor incurred the debt beyond
his ability to pay same when the debt came due.
i
|
9 ‘The complaint as drafied fails to meet the s cificity recuirements of 726.105 as
to the Defendants or as to the elements of fraud and as such should be dismissed. Ocala Loan
Company y. W. Robert Smith and Ann |. Cooper 155 So, 2p 711 Gila 1 D 1963)
10. Count {1 is barred as a result of the law of the case and the merger of the Debt
Acknowledgments into the Ontario Judgment as set forth i paragraphs 4, 5, and 6 of this Motion
to Dismiss. |
i. Count HL of the Revised Second Complaint beeks relief pursuant to the Uniform
Fraudulent Conveyance Act as to Niclas Kirchberger. |
42. As of May |, 2019 there was no judgment in place other than an Ontario
Judgment that has been determined by this court not to be @ money to be and thus unenforceable.
||
13. Plaintiff fails to allege specific f as to thd value of consideration or lack
thereof, the allegations simply state that Defendant Gabriel Kirchberger did not receive
reasonably equivalent value and was insolvent at the time of transfer,
14. the mere assertion of unsupported statutory conclusions and a failure
to al lege to
allege specific facts is insufficient to plead a valid cause o f action and should
be dismissed.
Jafffer v. Chase Home Finance 15 ».3D_1199 (Fla 4 D2015)
|
15 Count III of the Revised Second Amended Complaint should also be dismiss
ed as
the cause of action is barred by the law of the case as indidated in paragraph 4.
hereof.
16 Count IT] of the Revised Second Amended Complaint $’ should also be dismissed as
the cause of action is barred due to the merger of the Debt Acknowle
aments into the Ontario
Judgment as set forth in paragraphs 3 and 6, hereof,
17, Count V of the Revised Second Amended Complaint fails to state a cause of
action for declaratory relief as to Defendant Moonstone Merprises, LLC and assets held by that
company in an effort to satisfy an unestablished debt. As such there is no current basis for a
determination of declaratory relief.
|
i
18, Count V of the Revised Second Amended Complaint asks for determination that
Moonstone Holdings, LLC is the alter ego of Gabriel Kire berger and that the LLC
assets are
available to satisfy the debts of Gabriel Kirchbrger. |
ii
19. Declaratory reliefis only available to resolve factual issues affecting liability
when the Plaintiff shows that it is in doubt as to some rightor status and that as such they
are
entitled to have such doubt removed. Medical Center Hea Ith Plan v. Brick $72 0 2d 548 (Fla 1
D 1990) ; |
|
I
20. As such a moving party needs to display that (1) there is a bona fide, actual,
present, and practical need for the declaration; (2) that the declaration should deal with a
present, ascertained state of facts or present controvers: 3) that some immunity, power,
privilege, or right of the plaintiffis dependent on the { ts or the law applicable to the facts: (4)
:
that there is some person or persons that there is a party with an actual, present, adverse interest:
(3) all interests are before the court: (6) the relief requeste is not simply to seek legal advice
from the courts. L|
21, The Plaintiff's efforts to seek declaratory rellet in Count V are insufficient in that
|
there is a failure of allegation of ultimate facts nee ry to document tiat Moonstone Holdings,
LLC was in fact the alter ego of Gabriel Kirchberger. |
i
22. The Plaintiff's cfforts in paragraph 60 of the Revised Second Amended Complaint
to meet the elements required for a declaratory y action fails fe meet all of the necessary elements
for relief and subject Count V to a dismissal.
||
23. Count VI of the Revised Second Complaint seeks relief pursuant to the Uniform
Fraudulent Conveyance Act as to Niclas Kirchberger as to ral property located at 15123 Leipzig
Circle Port Charlotte, Florida.
24. As of June 22, 2016 there was no judgment in place otrer than an
Ontario
Judgment that has been determined by this court not to be amoaney to be
and thus unenforceable.
25 Plaintiff fails to allege specific facts as to the value of consideration or lack
thereof, the allegations simply state that Defendant Gabridl Kirchberger
did not receive
reasonably equivalent vahte and was insolvent at the time of transfe
r.
|
26. ‘The mere assertion of unsuy pporied statutory conclusioris and a failure to
specific facts is insufticient to pl ead 4 valid cause of action and should allege
be dismissed. Jaftfer y,
Chase Home Finance 155 So. 3D 1199 (la 4 D 2015)
|
27. Count VI of the Revised Second Amended Complaint should also be dismissed
as the cause of action is barred by the law of the case as int icated in paragraph
4, hereof.
28. Count VII of the Revised Second Amended Complaint should also be dismissed
as the cause of action is barred due to the merger of the Debt Acknowledgments into
the Ontario
Judgment as set forth in paragraphs § and 6, hereof.
WHEREFORE, NICLAS K. KIRCHBERGER, CHRISTINE FRAZER, AND
MOO! STONE HOLDINGS, LLC., move this Honorable Court for she entry ofan Order
dismis: ng the complaint and for the entry of judgment in their favor as allowed pursuant to
the
pleadings rule to Florida Civil procedure,
i
CERTIFICATE OF SERV. ICE
1 HEREBY CERTIFY that a true and correct conly of the foregoing has been furnished
by via the E-Portal to Ryan W. Owen, Esquire, as Attorney for Plair ff, Adams & Reese, LLP
1515 Ringling Blvd. Suite 700, Sarasota, Fl rvan.owené parlaw.com: David K. Oaks, quire,
David K. Oaks. P.A. 497 . Marion Ave. Punta Gorda, FL 43950 doaksesq@:comeast.net
Glenn Siegel 178. Murdock Circle. Suite A. Port c arlotte, Florida 33948, kin jean
siegellaw.com this 9" of July, 2019,
soe) < —
ROBERT W s JR. ESQUIRE
ROBERT W SEGOR, P.A.
2828 §. McCall Road. PMB 56
Englewood, FL 34224
941-473-8878
Fla, Bar No.: 0700932
leg: segurlaw.net
Attorney for Moonstone Holdings.
LLC, Niclas Kirchberger, and
Chistipe Frazer
Preview
Filing # 92272045 E-Filed 07/09/2019 03:53:08 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDI bia CIRCUIT IN AND FOR. CHARLOTTE COUNTY, FLORIDA CIVIL ACTION HARRY BIBERSTEIN { i Plaintiff WS. CASH NO. 17-917-CA GABRIEL KIRCHBERGER, CAROL DEVILLE. 3, SOUTHERN SHORES ENTERPRIS . LLC, a Florida limited Hability company, and MOONSTONE HOLDINGS, LLC, a Nevada limited liability Company, Detendants. DEFENDANTS NICLAS X. CIRCHBER TER, c HRISTINE FRAZER and MOONSTONE HOLDIN -LC's MOTION TO DISMISS AND FOR JUDG NT ON THE PLEADINGS AS TO THE PLAINTIFF”S REVISED SECOND AMENDED COMPLAINT | i COMES NOW NICLAS X. KIRCHBERGER, CHRISTINE FRAZER, AND MOONSTONE HOLDIN LLC, Defendants by and through their undersigned counsel and files this Motion to Dismiss Plaintiff's Revised Second Ampnded Complaint and would state as follows: | |i 1 May 31, 2019 Plaintiff filed his Revised Sedond . Amended as to the above listed Defendants and adding Niclas X. Kirchberger, Christine Praver, Andreas Kirchberger, and Golden Key Properties. LLC as additional Defendants. |t 4 ie This action emanates from an assignment ofa German cebt to the Plaintiff on which suit was brought in Toronto, Ontario Canada that produced a judgment limited to that geographic jurisdiction against Gabriel Kirchberger and others who are not subject to this proceeding. | 3 Thereafter Plaintiff brought the original actibn in this proceeding secking to domesticate the Ontario, Canada Judgment in Florida, | 4 July 24,2018 this Honorable Court ruled onlthe Motions to Dismiss brought by the original Defendants in the action and held as follows: |t “The Out-of-Country Foreign Judgment enlered by the Ontario Superior Court 4 of justice on September 2016 against Gubriel Kirchberger, Susanne Viktoria Schmidt. Norman Pitmess. Inc.. 487223 Ontario Limited and 117] Ontario Limited carrying on busin as GK York Management Servic e. is not a money judgment end therefor e cannot be recogniz ‘d and enforced under the Out-of-Country Foreigh Money Judgment Act.” ‘This court determined that the Canadian J udgment sought to biz enforced was in fact nota money Judgment and as such was unenforceable in Florida. That ruling acts as the law of the case. Florida Department of 1 wsportation v. Juliano, 801 So. 2d 101 (Fla. 2001 43 Count {1 of the Second Amended Complaint alleges aright of collection as to the Defendant Gabriel Kirchberger based on the purchase and a ignment of an alleged German debt. 6 As drafted PlaintifY has alleged that the German debts can be pursued separately from prior efforts in Canada. In fact in the German debts lleged were merged into the Canadian Judgment and can not be separated from that judgment and es such are not enforceable Diamond R. Fertilizer Co. Ine v. Lake Packing Partnership Day Packing 743 So. 2D 547 (Fla 5® D 1999) | i 7.; Count IT of the revised Amended Complaint alleges an action as to the Uniform Fraudulent Conveyance Act regarding Southern Shores En| erprises. LLC pursuant to Florida Statute 726.105. 8 Count II fails to state a cause of action as aiptied. the statute requires specific allegations that a debtor make a transfer with an actual intent to hinder. delay, or defraud a creditor without receiving a reasonably equivalent value i jexchange for the transaction and that the debtor was engaged in a transaction for which the remaining assets of the debtor were insufficient in relation to the business or transaction or that the debtor incurred the debt beyond his ability to pay same when the debt came due. i | 9 ‘The complaint as drafied fails to meet the s cificity recuirements of 726.105 as to the Defendants or as to the elements of fraud and as such should be dismissed. Ocala Loan Company y. W. Robert Smith and Ann |. Cooper 155 So, 2p 711 Gila 1 D 1963) 10. Count {1 is barred as a result of the law of the case and the merger of the Debt Acknowledgments into the Ontario Judgment as set forth i paragraphs 4, 5, and 6 of this Motion to Dismiss. | i. Count HL of the Revised Second Complaint beeks relief pursuant to the Uniform Fraudulent Conveyance Act as to Niclas Kirchberger. | 42. As of May |, 2019 there was no judgment in place other than an Ontario Judgment that has been determined by this court not to be @ money to be and thus unenforceable. || 13. Plaintiff fails to allege specific f as to thd value of consideration or lack thereof, the allegations simply state that Defendant Gabriel Kirchberger did not receive reasonably equivalent value and was insolvent at the time of transfer, 14. the mere assertion of unsupported statutory conclusions and a failure to al lege to allege specific facts is insufficient to plead a valid cause o f action and should be dismissed. Jafffer v. Chase Home Finance 15 ».3D_1199 (Fla 4 D2015) | 15 Count III of the Revised Second Amended Complaint should also be dismiss ed as the cause of action is barred by the law of the case as indidated in paragraph 4. hereof. 16 Count IT] of the Revised Second Amended Complaint $’ should also be dismissed as the cause of action is barred due to the merger of the Debt Acknowle aments into the Ontario Judgment as set forth in paragraphs 3 and 6, hereof, 17, Count V of the Revised Second Amended Complaint fails to state a cause of action for declaratory relief as to Defendant Moonstone Merprises, LLC and assets held by that company in an effort to satisfy an unestablished debt. As such there is no current basis for a determination of declaratory relief. | i 18, Count V of the Revised Second Amended Complaint asks for determination that Moonstone Holdings, LLC is the alter ego of Gabriel Kire berger and that the LLC assets are available to satisfy the debts of Gabriel Kirchbrger. | ii 19. Declaratory reliefis only available to resolve factual issues affecting liability when the Plaintiff shows that it is in doubt as to some rightor status and that as such they are entitled to have such doubt removed. Medical Center Hea Ith Plan v. Brick $72 0 2d 548 (Fla 1 D 1990) ; | | I 20. As such a moving party needs to display that (1) there is a bona fide, actual, present, and practical need for the declaration; (2) that the declaration should deal with a present, ascertained state of facts or present controvers: 3) that some immunity, power, privilege, or right of the plaintiffis dependent on the { ts or the law applicable to the facts: (4) : that there is some person or persons that there is a party with an actual, present, adverse interest: (3) all interests are before the court: (6) the relief requeste is not simply to seek legal advice from the courts. L| 21, The Plaintiff's efforts to seek declaratory rellet in Count V are insufficient in that | there is a failure of allegation of ultimate facts nee ry to document tiat Moonstone Holdings, LLC was in fact the alter ego of Gabriel Kirchberger. | i 22. The Plaintiff's cfforts in paragraph 60 of the Revised Second Amended Complaint to meet the elements required for a declaratory y action fails fe meet all of the necessary elements for relief and subject Count V to a dismissal. || 23. Count VI of the Revised Second Complaint seeks relief pursuant to the Uniform Fraudulent Conveyance Act as to Niclas Kirchberger as to ral property located at 15123 Leipzig Circle Port Charlotte, Florida. 24. As of June 22, 2016 there was no judgment in place otrer than an Ontario Judgment that has been determined by this court not to be amoaney to be and thus unenforceable. 25 Plaintiff fails to allege specific facts as to the value of consideration or lack thereof, the allegations simply state that Defendant Gabridl Kirchberger did not receive reasonably equivalent vahte and was insolvent at the time of transfe r. | 26. ‘The mere assertion of unsuy pporied statutory conclusioris and a failure to specific facts is insufticient to pl ead 4 valid cause of action and should allege be dismissed. Jaftfer y, Chase Home Finance 155 So. 3D 1199 (la 4 D 2015) | 27. Count VI of the Revised Second Amended Complaint should also be dismissed as the cause of action is barred by the law of the case as int icated in paragraph 4, hereof. 28. Count VII of the Revised Second Amended Complaint should also be dismissed as the cause of action is barred due to the merger of the Debt Acknowledgments into the Ontario Judgment as set forth in paragraphs § and 6, hereof. WHEREFORE, NICLAS K. KIRCHBERGER, CHRISTINE FRAZER, AND MOO! STONE HOLDINGS, LLC., move this Honorable Court for she entry ofan Order dismis: ng the complaint and for the entry of judgment in their favor as allowed pursuant to the pleadings rule to Florida Civil procedure, i CERTIFICATE OF SERV. ICE 1 HEREBY CERTIFY that a true and correct conly of the foregoing has been furnished by via the E-Portal to Ryan W. Owen, Esquire, as Attorney for Plair ff, Adams & Reese, LLP 1515 Ringling Blvd. Suite 700, Sarasota, Fl rvan.owené parlaw.com: David K. Oaks, quire, David K. Oaks. P.A. 497 . Marion Ave. Punta Gorda, FL 43950 doaksesq@:comeast.net Glenn Siegel 178. Murdock Circle. Suite A. Port c arlotte, Florida 33948, kin jean siegellaw.com this 9" of July, 2019, soe) < — ROBERT W s JR. ESQUIRE ROBERT W SEGOR, P.A. 2828 §. McCall Road. PMB 56 Englewood, FL 34224 941-473-8878 Fla, Bar No.: 0700932 leg: segurlaw.net Attorney for Moonstone Holdings. LLC, Niclas Kirchberger, and Chistipe Frazer