F.V. de Araujo S.A. Madeiras, Agricultora, Industria e Comercio v. Dantzler Lumber & Export Co.

• Court: District Court of Appeal of Florida
• Decided: July 10, 2024
• Docket: 2022-1618
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 10, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1618 Lower Tribunal No. 20-4708 ________________

F.V. de Araujo S.A. Madeiras, Agricultora, Industria e Comercio, Appellant,

vs.

Dantzler Lumber & Export Co., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge.

Bushell Law, P.A., and Daniel A. Bushell (Ft. Lauderdale); Barakat + Bossa, PLLC, and Giacomo Bossa, for appellant.

Wicker Smith O'Hara McCoy & Ford, P.A., and Jordan S. Cohen (Ft. Lauderdale) and Ethan A. Arthur (Tampa), for appellee.

Before SCALES, LINDSEY, and MILLER, JJ.

LINDSEY, J. Appellant F.V. de Araujo S.A. Madeiras, Agricultora, Industria, e

Comercio appeals from an Order of Dismissal with Prejudice, which

dismissed Araujo’s action under Florida’s Uniform Out-of-Country Foreign

Money-Judgment Recognition Act, §§ 55.601-07, Florida Statutes (2023)

(the “Act”). Because the alleged foreign judgment Araujo seeks to enforce

is not an out-of-country foreign final judgment within the meaning of the Act

nor is it subject to recognition and enforcement under common law comity

principles, we affirm.

I. BACKGROUND

This case stems from a 2001 maritime shipping dispute that arose

when a Danish vessel failed to deliver a shipment of lumber that Appellee

Dantzler Lumber & Export, Co., a Florida-based buyer, ordered from Araujo,

a Brazil-based seller. In December 2001, Dantzler and Araujo brought a joint

action in Brazil against the vessel’s owner. A Brazilian court ordered the

owner to issue a clean bill of landing, but the order was ignored. This

resulted in a drawn-out dispute between Araujo and Dantzler.

In December 2003, Araujo sued Dantzler in Brazil seeking payment for

the lumber.1 Dantzler failed to timely oppose the action, so it was converted

into a Brazilian enforcement proceeding. Dantzler then challenged the

1 Araujo alleged it could recover from Dantzler because the lumber was shipped “Free on Board” export, so Dantzler, as the buyer, assumed the risk of loss once the goods were loaded onto the ship.

2 validity of service arguing that the wrong person was served. In response,

Araujo requested that Dantzler be held liable for abuse of process. In

September 2005, the Brazilian court entered an order finding that Dantzler

had engaged in abuse of process, and it imposed a penalty equal to 2% of

the value of the case. The order was unanimously affirmed by a Brazilian

appellate court. Araujo alleges it spent years trying to seize Dantzler’s

assets in Brazil, which was unsuccessful.

In February 2020, Araujo initiated proceedings below to recognize a

foreign judgment pursuant to the Act. Araujo initially sought recognition and

enforcement by recording six documents, including various Brazilian court

documents (translated into English). In response, Dantzler filed a Notice of

Objection arguing, inter alia, that Araujo failed to record a final judgment as

required by the Act. See § 55.603, Fla. Stat. (2023) (“This act applies to any

out-of-country foreign judgment that is final and conclusive and enforceable

where rendered, even though an appeal therefrom is pending or is subject

to appeal.”).

Araujo acknowledged that it did not attach the correct documents, and

it filed a motion to amend, attaching several additional documents. Dantzler

moved for judgment on the pleadings arguing that Araujo had still failed to

record a final foreign judgment. Following a hearing, the trial court denied

Dantzler’s motion, concluding that the motion was not a proper procedural

3 vehicle because neither party had filed pleadings in the form of a complaint

or answer.

To address the trial court’s procedural concerns, Araujo filed a

complaint. The operative Complaint contains two counts: (I) recognition

under the Act and (II) recognition under the common law of comity. The

Complaint attaches a one-page May 2004 Order from Brazil, which provides

as follows:

This is a Monitory Action and, once the complaint was received, it was determined that the defendant should be notified to pay off or file an embargo,[2] under penalty of turning the claimed property into a judicial executive title with the continuance of this Executive Action (article 1102, CCP).

The defendant was notified, letting the time limit elapse without any reply.

Therefore, based on article 1102 of the Code of Civil Procedure, I turn this Monitory Action into an Enforcement Action, consequently the Registry Office is to rectify the records and official notification.

The Debtor is to be notified to, within 24 hours, pay off or provide property as a pledge, after recognition of the communication.

Fees 10%.

The Complaint also attaches an “Abstract of Record,” prepared by the

Brazilian Court Office Head in September 2019, over 15 years after the May

2 According to the Complaint, embargos are defenses.

4 2004 Order. According to this document, the “judgment debt” as of

September 2019 was $2,591,721.68 Brazilian Reals (“BRL”).

In its Complaint, Araujo attempts to explain how the May 2004 Order

is a final order. According to the Complaint, Araujo sought to collect an

unsecured debt in the amount of USD $103,654.76 from Dantzler through a

summary civil proceeding in Brazil known as ação monitória. Dantzler then

had the option of either filing defenses or paying the amount due. Dantzler

failed to answer, so the Brazilian court issued the May 2004 Order converting

the lawsuit from an ação monitória into an enforcement proceeding.

According to Araujo, this Order is the equivalent of a final default judgment,

though this is not clear from the Order itself.

Dantzler filed a motion to dismiss arguing that the May 2004 Order is

not a foreign final judgment for the purposes of the Act because it does not

award a specific sum of money. Dantzler also argued that Araujo’s

alternative theory of recovery based on common law comity should be

dismissed because the Act has replaced comity.

Following a hearing, the trial court agreed with Dantzler and dismissed

Araujo’s action with prejudice. Araujo timely appealed.

II. ANALYSIS

We review de novo the trial court’s interpretation of the Act and its legal

determination that the May 2004 Order is not a foreign final judgment for the

5 purposes of the Act. See, e.g., Parisi v. de Kingston, 357 So. 3d 1254, 1257

(Fla. 3d DCA 2023) (“A trial court’s legal conclusions and interpretation of a

statute are reviewed de novo.”).3 On appeal, Araujo argues that the May

2004 Order is subject to recognition and enforcement through two alternative

procedural mechanisms: (1) the Act and (2) common law comity.

a. The Act

“States are not required to recognize judgments rendered in foreign

countries under the Full Faith and Credit Clause of the Constitution of the

United States.” Osorio v. Dole Food Co., 665 F. Supp. 2d 1307, 1322 (S.D.

Fla. 2009), aff’d sub nom. Osorio v. Dow Chem. Co., 635 F.3d 1277 (11th

Cir. 2011). However, Florida, like other states, has adopted a variant of the

Uniform Foreign Money–Judgments Recognition Act. See §§ 55.601-07,

Fla. Stat. (2023). “The [Act] was adopted in Florida in 1994 to ensure the

recognition abroad of judgments rendered in Florida.” Nadd v. Le Credit

Lyonnais, S.A., 804 So. 2d 1226, 1228 (Fla. 2001). “[T]he intent of the Act .

3 Both parties cite the standard of review that is applicable when reviewing orders dismissing for failure to state a cause of action, which requires accepting the allegations in the complaint as true. However, we need not go there because nowhere in the Act or case law are pleadings required. See Chabert v. Bacquie, 694 So. 2d 805, 811 (Fla. 4th DCA 1997) (“The common law procedure for recognition of a foreign money judgment . . . was cumbersome because it required an entirely new action, with its own pleadings and evidence, simply to go after property of the judgment debtor within our jurisdiction. . . . The Act certainly remedies . . . these concerns and provides a speedier and more certain framework for recognition.” (emphasis added)).

6 . . is to provide a speedy and certain framework for recognition of foreign

judgments.” Laager v. Kruger, 702 So. 2d 1362, 1363 (Fla. 3d DCA 1997).

Because this appeal comes to us with an unusual procedural history,

we review the proper procedure set forth in the Act for the recognition and

enforcement of a foreign final judgment. As our Supreme Court has

explained:

If a judgment creditor wishes to enforce a judgment in Florida under the [Act], he must first file the judgment with the clerk of court of the county or counties where enforcement is sought. See § 55.604, Fla. Stat. The judgment is then recorded in that county. See id. Once the registration and recordation are complete, the clerk sends notice to the debtor, who then may file a notice of objection within thirty days of service. See § 55.604(2), Fla. Stat. Whether or not the judgment debtor responds within the thirty- day period, either party may apply for a hearing regarding recognition. See § 55.601(3), Fla. Stat. If no objections are filed within thirty days, the clerk of court files a statement stating that fact. Under such a circumstance, the judgment creditor is entitled to enforcement without a hearing.

Nadd, 804 So. 2d at 1228–29.

“Under the [Act], a foreign judgment is prima facie enforceable if it ‘is

final, conclusive, and enforceable where rendered, even though an appeal

therefrom is pending or is subject to appeal.’” Osorio, 665 F. Supp. 2d at

1323–24 (quoting § 55.603, Fla. Stat.). “The party seeking enforcement has

the initial burden of proof that the judgment is final, conclusive, and

enforceable where rendered.” Id. at 1324; see also Nadd, 804 So. 2d at

7 1231 (“The language of section 55.603 makes it clear that the first question

in the recognition process is whether or not the foreign judgment is ‘final and

conclusive and enforceable’ in the country where the judgment was

rendered.”).

Araujo failed to meet its initial burden. Below, Araujo struggled to

produce a Brazilian final judgment, and after attaching numerous documents

(many of which were not judicial orders), it ultimately relied on the May 2004

Order. But this Order contains no indication that it is final. See, e.g., S.L.T.

Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974) (“Generally, the test

employed by the appellate court to determine finality of an order, judgment

or decree is whether the order in question constitutes an end to the judicial

labor in the cause, and nothing further remains to be done by the court to

effectuate a termination of the cause as between the parties directly

affected.”). Indeed, it is clear from the record that judicial labor in Brazil

continued well after entry of the May 2004 Order.

Moreover, the Act defines an “out-of-country foreign judgment” as “any

judgment of a foreign state granting or denying recovery of a sum of money

. . . .” § 55.602(2) (emphasis added). The May 2004 Order, on its face, does

not grant or deny recovery of any sum of money. The Order simply explains

that Araujo’s “Monitory Action” was converted into an “Enforcement Action”

8 because Dantzler failed to file a timely reply. The only hint of a monetary

amount is at the end of the order, which simply states “Fees 10%.”

Since the May 2004 Order contains no language of finality nor does it

specify any sum of money, Araujo also relies on the Abstract of Record. This

document is not a court order nor is it incorporated into any order by

reference; it was prepared by the Brazilian Court Office Head over 15 years

after the May 2004 Order. Even if this document were a court order, the

amount specified is problematic. The original amount Araujo sought was

BRL $304,641.34 (USD $ 103,654.76). As of September 2019, the amount

has ballooned into over 2.5 million BRL, and it is impossible to determine

from the Abstract of Record how this amount has been calculated. Arguably,

much of this amount is due to accruing interest, but it could also include

taxes, fines, or other penalties, which are not enforceable under the Act. See

§ 55.602 (“‘Out-of-country foreign judgment’ means any judgment . . . other

than a judgment for taxes, a fine, or other penalty.” (emphasis added)).

Because Araujo has failed to attach a final order that grants or denies

a sum of money, we conclude that the trial court did not err in refusing to

enforce the May 2004 Order pursuant to the Act.

b. Common Law Comity

Araujo, in the alternative, seeks recognition of the alleged foreign

judgment under the common law doctrine of comity. Araujo argues that

9 common law comity permits courts to recognize a broader range of foreign

orders than the Act. See Nahar v. Nahar, 656 So. 2d 225, 228 (Fla. 3d DCA

1995) (“[F]inal judgments of, and certain interlocutory orders by, the highest

court of a foreign nation are entitled to comity.”).4

We decline to resort to common law principles of comity because they

have been replaced by the Act. See Nadd, 804 So. 2d at 1228 (“The Act

replaced common law principles of comity relating to the recognition of

foreign judgments.”); see also Chabert v. Bacquie, 694 So. 2d 805, 811 (Fla.

4th DCA 1997) (“The Act effectively replaces the common law principles of

comity for recognizing foreign judgments, at least to the extent of any

differences between the Act and the common law.”).

III. CONCLUSION

Because the May 2004 Order is not an out-of-country foreign final

judgment within the meaning of the Act, it is not subject to recognition or

enforcement in Florida. We therefore affirm the trial court’s dismissal with

prejudice.

Affirmed.

4 Nahar was originally decided in 1993, before the Act’s enactment. See Ch. 94-239, Laws of Fla. (creating the Uniform Out-of-country Foreign Money- Judgment Recognition Act, effective October 1, 1994). Although the en banc opinion in Nahar was issued after the Act’s effective date (June 1995), it does not mention the Act and only addresses common law comity, which was controlling at the time of the panel opinion.