Abitbol v. Benarroch

273 So. 3d 147

• Court: District Court of Appeal of Florida
• Decided: February 20, 2019
• Docket: 17-1053 & 17-1725
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 20, 2019. Not final until disposition of timely filed motion for rehearing.

________________

Nos. 3D17-1725 & 3D17-1053 Lower Tribunal No. 15-27539 ________________

Monique Abitbol, Appellant,

vs.

Alberto Benarroch, Turnberry Isle North One Corporation, et al., Appellees.

Appeals from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge.

Becker & Poliakoff, P.A., and Evan B. Berger, Allen M. Levine, and Daniel L. Wallach (Ft. Lauderdale), for appellant.

Rosenthal, Rosenthal, Rasco, LLC, and Eduardo I. Rasco, and Steve M. Bimston, for appellees.

Before EMAS,1 C.J., and SALTER and LINDSEY, JJ.

LINDSEY, J.

1 Chief Judge Emas did not participate in Oral Argument. Monique Abitbol (“Abitbol”) appeals two amended orders granting motions

to dismiss with prejudice various counts from her Second Amended Complaint for

Equitable Relief and Damages (the “Second Amended Complaint”). For the

reasons set forth below, we affirm.

I. INTRODUCTION

In Case No. 3D17-1053, Abitbol appeals the trial court’s September 27,

2018 Amended Order Granting Motion to Dismiss Counts II, III, VI, VII, VIII, IX,

X, XII, XIII, and XV with Prejudice as against Defendants Las Princesas Corp.

(“Las Princesas”), Turnberry TS2 Corp. (“TS2”), Turnberry Isle 8D Corp. (“8D”),

Alberto Benarroch (“Alberto”), and Esser Melul (“Melul”).

In Case No. 3D17-1725, Abitbol appeals the trial court’s September 27,

2018 Amended Order Granting Motion to Dismiss with Prejudice Counts VII,

VIII, IX, X, XIV, and XV as against Defendants Turnberry Isle North One Corp.

(“North One”), Turnberry Isle North Two Corp. (“North Two”), North 7C Corp.

(“7C”), Turnberry 8C Corp. (“8C”), Miami Alone Properties Corp. (“Miami

Alone”), Isaac Industries, Inc. (“Isaac”), and Molly and David Avan (the “Avans”).

By order of this Court, the cases were consolidated for all appellate purposes.

II. FACTUAL AND PROCEDURAL HISTORY

Alberto Benarroch and Monique Abitbol were married in 1994. At the time,

Abitbol was a Canadian resident living in Canada and Alberto, a resident of both 2 Canada and Venezuela, was living in Venezuela. Shortly after the wedding,

however, Abitbol decided to move to Venezuela to be with Alberto. The couple

remained in Venezuela for approximately six years until safety concerns led

Abitbol to move to the United States. From thereon, Abitbol and the couple’s

children moved back and forth between Miami, Venezuela, and Ontario while

Alberto remained in Venezuela. Their marriage began to deteriorate and the

couple separated in 2013. Two years later, Alberto commenced marriage

dissolution proceedings in Ontario, Canada, where Abitbol and the couple’s

children had been residing for the previous six years.

In her Answer in the divorce proceedings, Abitbol sought full custody of the

five youngest children, child support, spousal support, exclusive possession of the

marital home, and a greater than equal share of the net family properties. Abitbol

also requested that a worldwide preservation order be entered against Alberto and

his close associates. Based on information and belief, Abitbol alleged that in the

years leading up to the divorce, Alberto diverted and concealed his income and

assets for the purpose of defeating any entitlement that she might claim.

She alleged that he used the named entities and his close associates to hold

his assets in trust. Those parties were Jacob Benarroch (“Jacob”), Louis R.

Montello (“Montello”), HPI Administrative Services LLC (“HPI”), Hercules

Products Inc. (“Hercules”), TS2, Miami Alone, Plasticos Hercules CA

3 (“Plasticos”), Productos Hercules CA (“Productos”), Las Princesas, and Rafael

Benarroch (“Rafael”). As proof, she pointed to the fact that the named entities

were either in Alberto’s, Jacob’s, Rafael’s, or Montello’s name. Jacob, who was

83 years old and retired at the time, is Alberto’s father, Rafael is Alberto’s brother,

and Montello is Alberto’s lawyer.

On November 26, 2015, the Ontario Family Court granted Abitbol’s ex parte

motion and issued a Mareva2 injunction. The Mareva injunction prohibited

Alberto, Jacob, Rafael, Montello, HPI, Hercules, TS2, Miami Alone, Plasticos,

Productos, and Las Princesas from “transferring, alienating, assigning, mortgaging,

encumbering, pledging, disposing of, or otherwise dealing with any property of

any kind in any jurisdiction worldwide” in which Abitbol may claim an interest.

The order also listed an adjournment date of December 7, 2015.

The following day, Abitbol filed a complaint in Miami-Dade County to

enforce the Mareva injunction as it pertains to property interests in Florida. Yet,

Abitbol did not seek enforcement alone. She also brought claims for violations of

Florida’s Uniform Fraudulent Transfer Act (“FUFTA”), conspiracy to commit 2 Named after the second English case to issue one, a Mareva injunction is a freezing order “designed to prevent a defendant from dissipating or hiding his assets at the outset of a case thus making any judgment subsequently rendered against him either worthless or difficult to enforce.” Guinness PLC v. Ward, 955 F.2d 875, 900 (4th Cir. 1992) (citing Mareva Compani Naviera, S.A. v. Int'l Bulk Carriers, S.A., 2 Lloyd's Rep. 509 (Eng. C.A. 1975)). Mareva injunctions are available under both English and Canadian law, among other common law jurisdictions. See SEC v. Cavanagh, 445 F.3d 105, 117 n.27 (2d Cir. 2006).

4 violations of FUFTA, constructive fraud, unjust enrichment, and injunctive relief.

The complaint named six defendants. Of those listed, only Alberto, Jacob, TS2,

and Las Princesas were also named in the Mareva injunction. The remaining two

defendants, Melul and 8D, had no involvement with the proceedings in Canada

prior to being named a party defendant in the Florida action.

On December 7, 2015, the Ontario Family Court reconvened. Pursuant to

that hearing, the court filed an endorsement removing TS2 and Miami Alone from

the scope of the Mareva injunction. The court removed both corporations having

found “no connection” between Alberto and them. The injunction was still

preserved with respect to other parties, including Alberto, Jacob, and Las

Princesas. Following the endorsement, Abitbol filed an amended complaint. The

Amended Complaint was substantively indistinguishable from the original

Complaint but added a claim seeking to enforce the Mareva injunction as to Jacob.

On September 16, 2016, Alberto, Las Princesas, TS2, 8D, and Melul filed a

Motion to Stay or Abate the case pending final determination of the marriage

dissolution proceedings in the Ontario Family Court. Abitbol opposed the

proposed stay, arguing that because the Ontario Court has no jurisdiction through

its interlocutory injunction over the disputed property in Florida, “a stay order

would prevent [her] from reversing the fraudulent transfers.” Then, on December

5, 2016, Abitbol filed a Motion to File a Second Amended Complaint, which the

5 trial court subsequently granted the following day. The Second Amended

Complaint sought to add seven new parties after Abitbol discovered five additional

properties she contends were owned by Alberto despite being titled in the name of

other individuals and shell corporations. Based on those contentions, Abitbol

asserted claims against North One, North Two, 7C, 8C, Miami Alone, Isaac, and

the Avans.3

In total, the Second Amended Complaint asserted 15 causes of action against

Alberto and 13 other defendants. On its face, all claims alleged in the Second

Amended Complaint were based on Abitbol’s marital relationship with Alberto.

Specifically, Abitbol alleged therein that she has brought this action “for numerous

causes of action against Alberto and his nominees for their participation in the

intentional dissipation and misappropriation of marital assets in this jurisdiction.”

She sought to “preserve assets and properties equitably owned by [her] that

Defendants are purposefully concealing and depriving her from through systematic

fraudulent transfers, evasive titling of assets, and corporate formations intended to

shield martial assets from Monique’s lawful and equitable claims.”4

3 Abitbol subsequently recorded a supplement to the original Lis Pendens recorded just one month prior with respect to the five additional parcels of property. 4 Counts I-VI seek to enforce the Mareva injunction as to Las Princesas, TS2, 8D,

Alberto, Jacob, and Melul, respectively. Count VII asserts a cause of action against all defendants for violation of the UFTA. Count VIII asserts a cause of action against all defendants for conspiracy to commit a violation of the UFTA. Count IX asserts a cause of action against all defendants for constructive fraud. Count X asserts a cause of action for unjust enrichment as against Las Princesas, 6 On the same day that Abitbol filed the Second Amended Complaint, Las

Princesas, TS2, 8D, and Melul withdrew the Motion to Stay or Abate. The motion

was withdrawn one day shy of the trial court’s special set hearing scheduled for

December 6, 2016. Soon thereafter, Alberto, Las Princesas, TS2, 8D, and Melul

filed a Motion to Dismiss Counts II, III, VI, VII, VIII, IX, X, XII, XIII, and XV of

the Seconded Amended Complaint with Prejudice. The Motion to Dismiss sought

dismissal only as to the counts unrelated to the Mareva injunction. Specifically,

the Motion to Dismiss argued: (1) Abitbol is attempting to expand the scope of the 8D, TS2, North One, North Two, 7C, 8C, and Miami Alone. Count XI asserts a cause of action against Jacob for unjust enrichment. Count XII asserts a cause of action against Alberto for unjust enrichment. Count XIII asserts a cause of action against Melul for unjust enrichment. Count XIV asserts a cause of action against Isaac and the Avans for unjust enrichment. Count XV seeks preliminary and permanent injunctive relief as against all defendants. The causes of action asserted against each defendant are as follows:

DEFENDANT SPECIFIC COUNTS Alberto Benarroch IV, VII, VII, IX, XII, XV Las Princesas I, VII, VIII, IX, X , XV Turnberry TS2 III, VII, VIII, IX, X, XV Turnberry Isle 8D II, VII, VIII, IX, X, XV Jacob Benarroch V, VII, VIII, IX, XI, XV Esser Melul VI, VII, VIII, IX, XIII, XV Turnberry Isle North One VII, VIII, IX, X, XV Turnberry Isle North Two VII, VIII, IX, X, XV North 7C VII, VIII, IX, X, XV Turnberry Isle 8C VII, VIII, IX, X, XV Miami Alone Properties VII, VIII, IX, X, XV Isaac Industries VII, VIII, IX, XIV, XV Molly Avan VII, VIII, IX, XIV, XV David Avan VII, VIII, IX, XIV, XV

7 Mareva injunction by including parties not named therein; (2) Florida law does not

recognize civil claims predicated on the intentional dissipation of marital assets;

and (3) Abitbol’s only option is to seek equitable distribution of the marital estate

under section 61.075, Florida Statutes (2018), but that option is not available

because Florida law requires all claims regarding the marital estate to be litigated

within a single action. Defendants did not seek dismissal of Count I (Las

Princesas) or Count IV (Alberto) because Las Princesas and Alberto were named

in the Mareva injunction.5

The trial court agreed and on April 7, 2017 entered an order granting

Alberto, Las Princesas, TS2, 8D, and Melul’s Motion to Dismiss with Prejudice.

On May 2, 2017, after denying Abitbol’s Motion for Rehearing, the trial court

entered a Corrected Order granting the Motion to Dismiss.6 The trial court found

there was nothing to enforce as against those parties because “the Ontario Court

had not made any rulings concerning such entity or individual that would be

entitled to enforcement as a matter of comity.” Additionally, the Ontario Court

had “expressly rejected” the TS2 property as a marital asset.

5 Appellees allege Jacob was never served with process, which is why they did not seek to dismiss Count V and nothing in the record suggests that he was served. As the Defendants added in the Second Amended Complaint had not been served with process at that time, they did not join in moving to dismiss the complaint. 6 The Corrected Order issued by the trial court is identical to the original Order

entered on April 7, 2017, except for a clarification that the Order was “not final as to all parties.” 8 Furthermore, the trial court found that Abitbol’s second amended counts

were “entirely based upon [her] marital relationship with Alberto.” Based upon

these findings, the trial court concluded that Abitbol’s approach was precluded for

two reasons: (1) “the principle of priority prohibits [Abitbol] from pursuing

duplicative litigation which merely parallels pending litigation in a foreign

jurisdiction involving the same parties and subject matter” and (2) “Florida law

precludes general civil claims premised upon a spouse’s intentional dissipation of

marital assets.”

On May 18, 2017, North One, 7C, North Two, 8C, Miami Alone, Isaac

Industries, and the Avans filed a substantially similar motion seeking to dismiss

with prejudice counts of the Second Amended Complaint, specifically, Counts VII,

VIII, IX, X, XIV, and XV. The trial court granted that motion on June 27, 2017,

dismissing those defendants from the counts for the same reasons set forth in the

Corrected Order of May 2, 2017. Abitbol filed two timely notices of appeal as to

both trial court orders. This Court, however, dismissed the consolidated cases,

without prejudice, for lack of jurisdiction as both trial court orders were non-final.

Consequently, Abitbol filed a Motion for Rehearing. After granting

Abitbol’s Motion for Rehearing, this Court relinquished jurisdiction to the trial

court to enter a final appealable judgment. On September 27, 2018, the trial court

entered two Amended Orders granting the Motion to Dismiss and entered final

9 judgment as it pertains to all Defendants except Alberto and Las Princesas.

Abitbol filed both orders in this Court two days later.

III. JURISDICTION

The trial court’s final judgment contains the requisite language of finality

and the notice of appeal was timely filed, therefore, this Court has jurisdiction

pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A).

IV. STANDARD OF REVIEW

A trial court’s decision to order or deny a stay based on the principle of

priority is reviewed for an abuse of judicial discretion. See Pilevsky v. Morgans

Hotel Grp. Mgmt., LLC, 961 So. 2d 1032 (Fla. 3d DCA 2007). However, an order

granting a motion to dismiss presents a pure question of law and is subject to de

novo review. See Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732 (Fla.

2002). The factual allegations of the complaint are to be taken as true and

considered in the light most favorable to the non-moving party. Id.

V. ANALYSIS

The sole challenge on appeal is the trial court’s alleged failure to stay the

Florida proceedings pending the outcome of the Canadian proceedings. Principles

of comity, Abitbol argues, required the trial court to stay the subsequently-filed

Miami-Dade action as it parallels litigation pending in a foreign jurisdiction

involving substantially similar parties and subject matter. She further argues that

10 the trial court’s decision not to postpone this case in favor of the Ontario Family

Court, which first exercised jurisdiction, was an abuse of discretion. We disagree.

Granting a stay would not change the fact that Abitbol failed to assert viable

claims under Florida law. See Levy v. Levy, 862 So. 2d 48, 53 (Fla. 3d DCA

2003) (“[W]here there is no specific transaction or agreement between spouses, the

dissolution of marriage statute provides the exclusive remedy where one spouse

has intentionally dissipated marital property during the marriage.” (citing Beers v.

Beers, 724 So. 2d 109, 116 (Fla. 5th DCA 1998) (“In our view, there simply is no

cognizable tort claim for constructive fraud for a concealed dissipation of marital

assets.”))).

On its face, the entirety of Abitbol’s Second Amended Complaint is

expressly based on her marital relationship with Alberto. Thus, the trial court

correctly dismissed, rather than stayed, the subsequently-filed Miami-Dade case

because the Ontario Family Court had already exercised jurisdiction over the

dissolution proceedings and, as such, the Florida proceedings were ancillary to the

Ontario proceedings. Abitbol’s right to seek enforcement of the Mareva injunction

as to those parties named therein, however, is still preserved. See Cermesoni v.

Maneiro, 144 So. 3d 627 (Fla. 3d DCA 2014) (affirming Florida trial court’s

decision to carry out the cross-border request for assistance by recognizing the

Argentinian Court’s ruling and entering the injunction directed to specific Florida

11 assets in marital dissolution action first-filed in Argentina where Florida’s

jurisdiction was ancillary, not primary (citing Cardenas v. Solis, 570 So. 2d 996

(Fla. 3d DCA 1990)).7

VI. CONCLUSION

For the reasons set forth above, we affirm both orders on appeal.

Affirmed.

7 Nothing herein preludes Abitbol from seeking to add additional parties and claims in the Ontario Family Court case and to then seek enforcement of any orders entered with respect thereto in Miami-Dade. 12