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

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                                Filing # 91953583 E-Filed 07/01/2019 04:30:49 PM



               IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRGUIT IN AND FOR
               CHARLOTTEhated COUNTY, FLORIDA                                          one        VIL AGI ION
               HARRY BIEBERSTEIN,

                              Plaintiff,
               v                                                         Case No.    17-917 CA

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

                              Defendants
                      stint                    eer      s

                   DEFENDANT DEVILLE’S MOTIONTO DISMISS REVISED                             SECOND   AMENDED
               COM!                ALTERNATIVELY,           MOTION       FOR MORE       DEFINITE STATEMENT
                      COMES        NOW     CAROL      DEVILLE,       Defendant, by and through her undersigned

               counsel and file this Motion to Dismiss Plaintiff's Revised Second Amended Compiaint or

               alternatively a Motion      for More    Definite      Statement   pursuant   to Florida Rule   of Civil

               Procedure 1.140(e) and for reasons states as follows

                      1) Plaintiff filed a Revised Second Amended Complaint deemed fled on May 37,

               2019 by previous Order of this Court against the above-captioned Defendants and adding

               Christine Frazer, Andreas Kirchberger, Niclas X. Kirchberger and Golden Key Properties,

               LLC as parties defendant.

                      2) This action originates from the assignment of a German debt te the Plaintiff which

               resulted in ar Ontario, Canada judgment enforceable only in that jurisdiction against

               Defendant GABRIEL KIRCHBERGER and others not 4 party in this instant action.

                      3) Plaintéf thereafter sought te domesticate the Canadian Judgment in Charlotte

              County, Florida and in ruling on Motions te Dismiss brought by the Defendants, the Court
specifically heid by Order dated July 24, 2018:

                    "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 1177852 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 Deparment
                                                    ol Transportation v Julia ne, 804

$o.2d 101 (Fla. 2004).
         4) Count | of the Revised Second Amended Compiaint purports to bea eollectian

action   against   Defendant   GABRIEL   KIRCHBERGER       and   alleges   entitlement   to a

judgment against Kirchberger hased on assignment of the German Debt.

         5) Count Il of the Revised Second   Amended   Complaint purports to be an action

under the Unifarm Fraudulent Conveyance Act against Defendant SOUTHERN SHORES

ENTERPRISES,        LLC and alleges Kirchberger on June 2, 2015 fraudulently transferred

2699 Sevile Boulevard, Unit 602, Clearwater, Florida to Southern Shores.      This property

is no longer owned by Southern Shores and is nat listed in the Notice of Lis Pendens.

         §} Count II! of the Revised Second Amended Complaint purports to be an action

under the Uniform Fraudulent Conveyance Act against newly added Defendant NICLAS

X. KIRCHBERGER and alleges Kirchberger improperly transferred a membership interest

in Defendant MOONSTONE          HOLDINGS,    LLC ir order to avoid the Plaintiffs claimed

judgment

         7) Count IV of the Revised Second Amended      Compiaint alleges that Defendant
SOUTHERN       SHORES      ENTERPRISES,    LLC is the alter ego of Defendant GABRIEL

KIRCHBERGER.

       8) Count V of the Revised Second Amended Complaint alleges that Defendant

MOONSTONE HOLDINGS, LLC is the alter ego of Defendant GABRIEL KIRCHBERGER

       S} Count Vi of the Revised Second Amended Complaint alleges that Defendant

GOLDEN      KEY     PROPERTIES,     LLC   is   the   alter   ego   of   Defendant   GABRIEL

KIRCHBERGER.

       10} Count Vi of the Revised Second Amended Complaint purports to be an action

under the Uniform Fraudulent Conveyance Act against newly added Defendant NICLAS

X. KIRCHBERGER and alleges Kirchherger improperly transferred certain properties,

       14} That the only allegations in the Revised Second Amended             Complaint that

remotely pertain to Defendant CAROL DEVILLE are General Allegations paragraphs 7,

8. 27, 28(b) and 28{n)}.

              a) Paragraph 7 alleges residency

              6) Paragraph 8 alleges Deville is Kirchberger’s longtime fiancee.

              ¢) Paragraph 27 alleges a quit claim deed executed November 14, 2041 and

fecorded January 4, 201? from Gabriel Kirchberger to Caro! Devilie of 7135          Beardsiey

Street, Englewood, Florida.

              @) That paragraph 28(5) of the Revised Second Amended Complaint alleges

that 12038 Green Gulf property was purchased by Gabriel Kirchberger and Caro! Deville

on August 28, 2008 and that Gabriel Kirchberger transferred his one-half (4) interest to

Southern Shores Enterprises, LUC on August 18, 2044.

              @) That paragraph 28(n) of the Revised Second Amended Complaint alleges
that 2814 69" Street W was purchased by Gabriel Kirchberger and Carol Deville on August

11, 2008 and that Gabriel Kirchberger transferred His one-half (14) interest to Southern

Shore Enterprises, LLC on August 9, 2011.

       12) That none of the seven (7) pied counts or prayers for relief state a cause of

action or seek relief as to Defendant CAROL DEVILLE.

       13) That Defendant alternatively moves the Court for an order requiring Plaintiff to

make his Revised Second Amended Complaint more definite pursuant to Florida Rule of

Ciwil Procedure 1.140{e) on the ground that the pleading is so vague and ambiguous that

Defendant cannot reasonably be required to frame a responsive pleading,            The pleading

is vague in that none of the seven (7) pled counts or prayers for relief are directed to

CAROL DEVILLE.

       14) Delendant moves that the Revised Second Amended Complaint be made more

definite in the following respect and particulars:

       State   by a separate   and   specific   Count   the facts   supporting   the granting   of

Specifically stated relief as to Defendant DEVILLE or her interest in     7135 Beardsley,   12038

Green Gulf and 2814 69° Street W.

       WHEREFORE, Defendant CAROL DEVILLE seeks an order dismissing the Revised

Second Amended Complaint for failure to state a cause of action or alternatively, an Order

fequiring Plaintiff to make his pleading more definite pursuant to Fla. R, Civ. P. 1.140{e)

together with fees, costs and such other and further relief as the Court deems penensary

and proper

                               CERTIFIC,             F SERVICE
       | HEREBY CERTIFY that a true and correct copy of the above and foregoing Notice
of Unavailability has been sent via Florida Courts E-Filing Portal to counsei of record this

+ day of July, 2019.


                                                              /   [;
                                                                             t   if      Sah
                                                         ge            OAI
                                                                       . ESQ,
                                                         DAVID K. OAKS, P.A.
                                                         407 East Marion Ave. Suite 104
                                                         Punta Gorda, FL         33960
                                                         (941)639-7627
                                                         Florida Bar No. 0301877
                                                         Attorney for Defendants DEVILLE
                                                         &     SOUTHERN      SHORE
                                                         ENTERPRISES, LLC
                                                         Email. doaksesq@comcast.net