GYPTEC, S.A. v. Hakim-Daccach
| Decision Date | 26 February 2020 |
| Docket Number | No. 3D19-1629,3D19-1629 |
| Citation | 299 So.3d 481 |
| Parties | GYPTEC, S.A. now known as Violet Investment Corp. S.A. en Liquidación, et al., Appellants, v. Carlos HAKIM-DACCACH, Appellee. |
| Court | Florida District Court of Appeals |
Quinn Emanuel Urquhart & Sullivan LLP, and Juan P. Morillo, Daniel Pulecio-Boek and Gianna Puccinelli (Washington, D.C.), David M. Cooper (New York, NY), and Alex H. Loomis (Boston, MA); Boies Schiller Flexner LLP, and James Lee and Andrew Beyda, Miami; Greenberg Traurig, P.A., and Elliot H. Scherker, Brigid F. Cech Samole, Miami, and Bethany J. M. Pandher, Fort Lauderdale, for appellants.
Sequor Law, P.A., and Edward H. Davis, Jr., Arnoldo B. Lacayo and Amanda E. Finley, Miami; Waldman Barnett, PL, and Glen H. Waldman and Michael A. Sayre, Coconut Grove, for appellee.
Before LINDSEY1 , HENDON, and MILLER, JJ.
The Appellants, Gyptec, S.A., n.k.a. Violet Investment Corporation, S.A. en Liquidación, et al., ("Gyptec"), seek to reverse the trial court's imposition of a mandatory injunction in favor of Appellee, Dr. Hakim-Daccach ("Dr. Hakim"), ordering them to return $19.5 million to a restricted escrow account in Miami-Dade County, and to prohibit further transfers out of that account pending determination of Dr. Hakim's ownership interests in that res. We affirm.
Dr. Hakim, a Florida resident and U.S. citizen, personally loaned $300,000 to his two cousins, Alejandro and Jorge Tawil. When the cousins failed to repay him, Dr. Hakim and his cousins made oral agreements to convert Dr. Hakim's outstanding loan into equity in the Colombian corporation, Gyptec, a company started by the Tawils and owned by two other Panamanian companies. Dr. Hakim alleges that he eventually acquired a one-third equity interest in Gyptec. There is no documentation to substantiate these alleged capital contributions or agreements, as everything was apparently done by oral agreement.
Dr. Hakim alleges that sometime in 2004 he gave his bearer bonds (or share certificates, representing 1000 shares each and his one-third interest) to his cousin, Jorge, to hold them for him as a fiduciary. In 2008, Dr. Hakim requested the return of the shares, but Jorge did not return the shares/certificates. In 2009, Dr. Hakim entered into a stock purchase agreement with Jorge, which document indicated that Dr. Hakim was a one-third owner of the company. This agreement was voided by a Colombian arbitration panel in 2011 (the "Arbitral Award"), which found the agreement null and void because Appellants improperly assigned the agreement and defaulted. The Colombian arbitration panel found, however, that Dr. Hakim had an undisputed 33.33% ownership. The arbitration panel directed that Dr. Hakim be restored his "four shares," representing his one-third interest. Tawil did not comply with the Arbitral Award, leading Dr. Hakim to litigate further in both Colombia and Panama, all of which concluded in Dr. Hakim's favor as to his one-third ownership interest.
In 2015, Gyptec sold its assets and operations to Knauf GmBH and its subsidiaries, without notice to Dr. Hakim. After doing its due diligence on Gyptec, however, Knauf required Gyptec to place $40 million of the purchase price into a restricted escrow account, and required $20 million of that to account for Dr. Hakim's one-third interest should his ownership claim prove valid. Those funds are held in escrow in Banco de Bogota's Miami branch.
This leads us to the present case: Dr. Hakim continues to allege that he owns one-third of Gyptec as a result of his and his father's significant monetary investments in that company, and that the Appellants have deprived him of his ownership interest. Dr. Hakim initially filed in federal court, and eventually the cause was remanded to state circuit court as a constructive trust claim.2
During the pendency of this case, Appellants transferred approximately $30 million of the escrow funds to offshore accounts in Panama and Colombia. Dr. Hakim immediately moved for a mandatory injunction to compel the return of the escrow funds pending determination of Dr. Hakim's ownership and entitlement, and a prohibitory injunction against further fraudulent transfers and dissipation of the escrow funds. After a lengthy evidentiary hearing, the trial court found that there was probable danger of dissipation of the Florida escrow funds, citing evidence of the Appellants transferring those specific, identifiable funds at issue in this case out of Florida without notice to the court or other parties to this case. The court further found that Dr. Hakim has a likelihood of success on the merits as to his claim of constructive trust. The trial court concluded that the evidence provided at the hearing supported Dr. Hakim's claim of a one-third ownership interest in Gyptec, e.g., five foreign rulings in Dr. Hakim's favor on the issue of his one-third ownership, and the new owner's own due diligence and placement of the funds into a restricted account for benefit of Dr. Hakim.3 The court exercised its in rem jurisdiction, and issued an injunction order directing the Appellants to transfer one-third of the $58,500,000 sales price of assets of Gyptec, or $19.5 million, back to the escrow account in Miami-Dade County, and temporarily enjoined the Appellants from any further transfers out of that account pending determination of Dr. Hakim's ownership interest. This appeal ensued.
In order to be entitled to an injunction under Florida law, the moving party must plead and establish: (1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) that the threatened injury to the movant outweighs any possible harm to the non-mov...
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