Amezcua v. Cortez

• Court: Florida District Court of Appeals
• Writing for the Court: MILLER, J.
• Citation: Amezcua v. Cortez, 314 So.3d 666 (Fla. App. 2021)
• Decision Date: 13 January 2021
• Docket Number: No. 3D20-1649,3D20-1649
• Parties: Rafael Antonio Olvera AMEZCUA, Appellant, v. Hector Armando Vejar CORTEZ, Appellee.

314 So.3d 666

Rafael Antonio Olvera AMEZCUA, Appellant,

v.Hector Armando Vejar CORTEZ, Appellee.

No. 3D20-1649

District Court of Appeal of Florida, Third District.

Opinion filed January 13, 2021.

GrayRobinson, P.A., and Frank A. Shepherd, and Juan C. Martinez, for appellant.

Andreu, Palma, Lavin & Solis, PLLC, and Yulexy Solis, for appellee.

Before HENDON, MILLER, and BOKOR, JJ.

MILLER, J.

Appellant, Rafael Antonio Olvera Amezcua ("Olvera"), challenges a nonfinal order denying a motion to dismiss, or, alternatively, dissolve a temporary injunction entered in favor of Hector Armando Vejar Cortez ("Vejar"). We have jurisdiction. Fla. R. Civ. P. 9.130(a)(3)(B). After receiving a formal request for assistance from a Mexican tribunal, the lower court recognized and enforced a foreign embargo order, prohibiting the alienation of a condominium unit located in Aventura, Florida. Olvera sought dismissal or, in the alternative, dissolution of the domestic order. Although a hearing was afforded, relief was denied. On appeal, Olvera assigns error in the continuation of the injunction in the absence of service of process.¹ We affirm.

BACKGROUND

In mid-2014, Vejar deposited the sum of ten million Mexican pesos in Ficrea, S.A. & C.V., S.F.D., a banking institution organized and headquartered in Mexico. Shortly thereafter, the National Banking and Securities Commission of Mexico ("NBSC") involuntarily dissolved and liquidated the bank, citing investor fraud.

Vejar filed suit in Mexico against Olvera, Ficrea's majority shareholder, seeking to hold him personally liable for the loss of his deposit. The Mexican tribunal issued a preliminary embargo, enjoining Olvera from transferring certain assets, including a condominium unit located in Aventura, Florida.

The Attorney General of Mexico issued an arrest warrant for Olvera, and, as the warrant remained unserved, the International Criminal Police Organization ("Interpol") published a Red Notice alert. The alert notified cooperating countries of the existence of the warrant and sought the apprehension of Olvera.

Seeking assistance in enforcing the embargo in the United States, the Mexican court issued a letter rogatory directed to the Clerk of Courts of Miami-Dade County. In the document, the Mexican tribunal identified the need to enjoin any transfer of the Aventura property and termed Olvera a "fugitive of [j]ustice."

Vejar also filed suit in Miami-Dade County, seeking to effectuate the letter rogatory by invoking the ancillary jurisdiction of the court for the purpose of issuing a temporary injunction prohibiting the transfer of title of the Aventura condominium. After Vejar made several unfruitful attempts to serve Olvera at two separate residential locations, including the address identified on the embargo, he discovered the condominium was listed for sale. Vejar then sought entry of the injunction without notice.

The lower tribunal scheduled a hearing, and Vejar unsuccessfully attempted to provide Olvera notice of the hearing date. Ultimately, the court, issued the injunction, and, some four years later, Olvera filed a motion to dismiss the case, or, alternatively, to dissolve the injunction, citing a failure to effect service of process and changed circumstances. Following a hearing, the trial court denied relief, concluding that, absent dissolution of the foreign decree, relief was improvident. The instant appeal ensued.

STANDARD OF REVIEW

"The standard of review in determining whether a trial court properly refuses to dissolve a temporary injunction is abuse of discretion." Sea Tow Servs. Int'l, Inc. v. Pontin, 973 So. 2d 531, 532 (Fla. 3d DCA 2007) (citations omitted). However, appurtenant legal matters are reviewed de novo. Price v. Taylor, 298 So. 3d 654, 656 (Fla. 4th DCA 2020) (citation omitted).

LEGAL ANALYSIS

The extraterritorial effect of a foreign decree "depends upon what our greatest jurists have been content to call ‘the comity of nations.’ " Hilton v. Guyot, 159 U.S. 113, 163, 16 S. Ct. 139, 143, 40 L. Ed. 95 (1895). Comity is meant to solve the dilemma that "[n]o law has any effect of its own force, beyond the limits of the sovereignty from which its authority derived." Id. at 163, 16 S. Ct. at 143.

Although comity "has been fertile in suggesting a discretion unregulated by general principles," in Hilton the Supreme Court "articulated clear rules for the enforcement of foreign judgments in the United States:"

[W]here there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh.

William S. Dodge, International Comity in American Law, 115 Colum. L. Rev. 2071, 2075-90 (2015) (quoting Hilton, 159 U.S. at 202-03, 16 S. Ct. at 158 ). These rules have evolved slightly over the years, and, today, most state courts adhere to the standard promulgated under the Restatement (Second) of Conflict of Law.² Under the Restatement,

a decree rendered in a foreign nation which orders or enjoins the doing of an act will be enforced in this country provided that such enforcement is necessary to effectuate the decree and will not impose an undue burden upon the American court and provided further that in the view of the American court the decree is consistent with fundamental principles of justice and of good morals.

Restatement (Second) of Conflict of Law § 102 cmt. g (Am. Law Inst. 1971); see also Nahar v. Nahar, 656 So. 2d 225, 229 (Fla. 3d DCA 1995) ("[A]ny foreign decree should be recognized as a valid judgment, and thus be entitled to comity, where the parties have been given notice and the opportunity to be heard, where the foreign court had original jurisdiction and where the foreign decree does not offend the public policy of the State of Florida.").

In Florida, recognition of international final foreign judgments is governed by statute, while general principles of comity allow for the discretionary enforcement of certain interlocutory rulings. See § 55.604, Fla. Stat. As is relevant to this case, courts have "repeatedly approved the enforcement in Florida of temporary injunctions issued by foreign courts." Cermesoni v. Maneiro, 144 So. 3d 627, 629 (Fla. 3d DCA 2014).

Here, it is uncontroverted Olvera was afforded due process in Mexico and the foreign tribunal possessed original jurisdiction. Further, given the preliminary finding by the NBSC of creditor fraud and the resultant weighty need to preserve assets, along with the pervasive sentiment that debtors ought "not be able to walk away from their foreign court-imposed obligations by spiriting away their money or assets" in the United States, the foreign decree neither offends the public policy of our State nor emburdens our courts. de Pacanins v. Pacanins, 650 So. 2d 1028, 1029-30 (Fla. 3d DCA 1995) (citation omitted).

Olvera, however, assails the failure to perfect service of process in the Miami-Dade County proceedings as fatal to the continuing vitality of the injunction. Undoubtedly, a judge "has the power to issue a temporary injunction prior to service of process upon a defendant." Pascul v. George Davis & Co., 170 So. 2d 466, 467 (Fla. 3d DCA 1965) (citing Smith v. Hous. Auth. of Daytona Beach, 148 Fla. 195, 3 So. 2d 880 (Fla. 1941) ; Thebaut v. Canova, 11 Fla. 143 (1866) ; 28 Am. Jur. Injunctions § 246 ). Moreover, here, Vejar strictly complied with the narrow requirements of Florida Rule of Civil Procedure 1.610(a) in seeking relief without notice. See Fla. High Sch. Activities Ass'n, Inc. v. Benitez, 748 So. 2d 358, 359 (Fla. 5th DCA 1999) ("A party seeking injunction may, under certain narrow circumstances, be entitled to receive an ex parte hearing on his request provided that he complies with the procedure set forth in Florida Rule of Civil Procedure 1.610."). Thus, the entry of the injunction does not offend any traditional notion of due process.

Further, as Vejar persuasively argues, the role of the lower court, serving in an ancillary capacity to the Mexican tribunal, "was confined to the[ ] in rem matter[ ]" of recognizing and enforcing the embargo. Cermesoni, 144 So. 3d at 629. Hence, the court "merely carried out the cross-border request for assistance by recognizing the [Mexican] Court's ruling and entering the injunction directed to specific Florida asset[ ]." Id. Given the due process afforded in Mexico and the limited role of the court below, while...