Abitbol v. Benarroch

Third District Court of Appeal
State of Florida
Opinion filed February 20, 2019.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D17-1725 & 3D17-1053
Lower Tribunal No. 15-27539
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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
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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
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(“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).
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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
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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
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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
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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
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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
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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.
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