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Judge says Miami-Dade Is No Place for Venezuelan Dispute
Daily Business Review
Venezuelan companies that dispute a deal they consummated in Curacao may return there to seek missing U.S. Treasury bills, but first they will appeal the ejection of their $72 million complaint from Miami-Dade Circuit Court.
Publicidad Vepaco, a billboard company, and LaTele Television have retained Holland & Knight partner Rodolfo Sorondo Jr. to appeal the decision that the complex deal hatched in Caracas has no business in a Florida courtroom.
"This case is dismissed for plaintiffs to refile in Curacao if they choose to do so," Judge Jacqueline Hogan Scola said in her order.
Vepaco and LaTele seek the T-bills they assert were stolen by defendants Nelson Mezerhane and Rogelio Trujillo. Mezerhane, former owner of Banco Federal, and Trujillo, its chief executive, moved to South Florida after the Venezuelan government took over the bank in mid-2010.
In October 2009 the corporations borrowed from Caracas-based Banco Federal to convert Venezuelan currency into U.S. Treasury bills.
Fernando Fraiz, the principal of Vepaco and LaTele, executed various documents authorizing the purchase and transfer of the T-bills through three Curacao entities.
"However, at the direction and instructions of Federal, Vepaco and LaTele signed off on a series of letters that rather than completing plaintiffs' contemplated purchase of the T-bills served instead as a means to divert the T-bills plaintiffs had paid for to companies ultimately owned and controlled by you," the Miami attorney for the Venezuelan corporations, Leoncio de la Pena of De La Pena Group, said in letters demanding the defendants repay the money.
Vepaco and LaTele alleged six causes of action against Mezerhane and Trujillo: fraud, conspiracy to defraud, conversion, conspiracy to commit conversion, civil theft and unjust enrichment.
"The Venezuelan government has filed criminal charges against defendant Mezerhane for masterminding a criminal enterprise that successfully looted Federal of hundreds of millions of dollars of other people's monies to pay for a gilded exile and an army of lawyers to hide and keep stolen money," their complaint said.
"They deny that they defrauded or misled anybody," said solo practitioner Henry Bell of Miami, one of their lawyers.
Scola based much of her 19-page order to dismiss on the forum non conveniens analysis the Florida Supreme Court established in Kenney System v. Continental Insurance.
"Nothing in our law establishes a policy that Florida must be a courthouse for the world, nor that the taxpayers of the state must pay to resolve disputes utterly unconnected with this state's interests," the high court ruled.
Scola agreed with defense co-counsel Joseph DeMaria that Curacao is an available and adequate alternate forum and that neither Florida nor Curacao provides a clear advantage to either party for access to witnesses and documents. She said Florida's tenuous connection to the case does not justify its commitment of judicial resources and the defendants have agreed to submit themselves to the jurisdiction of Curacaoan courts.
Scola noted the Venezuelan companies initiated judicial proceedings in Curacao almost two months before filing the Miami-Dade complaint in December 2011, then dropped the Caribbean court action two weeks after DeMaria and Bell filed the motion to dismiss in February 2012.
"Plaintiffs' own actions in filing a nearly identical lawsuit in Curacao, raising the same claim, attests to the adequacy of that forum," Scola wrote.
She also ruled the three Curacao entities are indispensable parties to the action.
Scola also dismissed the civil theft claim.
"There are no allegations in the complaint that any of the alleged acts constituting a violation of the criminal statutes occurred within Florida," she wrote in her January 4 order.
Had the civil theft count been held applicable, it could have resulted in triple damages for a $216 million verdict, Bell said.
"You can see why the count was important to us on its own," he said.
DeMaria, a partner at Tew Cardenas in Miami, said the Treasury bills were swept up in Venezuela's nationalization of the banking industry.
"Our position was, if you've got a beef, take it up with the government of Venezuela," DeMaria said.
De la Pena is no longer on the case. Sorondo said the plaintiffs were in the midst of changing trial attorneys, and he was retained to appeal Scola's order too recently to comment.
The case could return to Miami-Dade Circuit Court, Scola wrote.
"In the event that plaintiffs refile this action in Curacao and attempt in good faith to assert jurisdiction over the defendants and the Curacaoan courts refuse to assert jurisdiction over this case ... plaintiffs shall have leave to refile this case before this court," she wrote.
Mezerhane is seeking political asylum in the United States. He filed a $1 billion lawsuit in 2011 against Venezuelan president Hugo Chavez's government in Miami federal court. Based in part on the Alien Tort Statute and the Torture Victim Protection Act, the suit claims Mezerhane suffered arbitrary arrest, psychological torture, restriction on assembly, denial of his right to a fair trial and inhumane treatment after he spent 37 days in jail accused of being an "intellectual author" of the 2004 assassination of a prosecutor.
DeMaria described Mezerhane as "a very significant Venezuelan." He was a partner in the anti-government news network Globovision, which was part-owned by Banco Federal. The government took a minority stake in the network when the bank was nationalized. Mezerhane led an investment group that bought Miami's Diario las Americas earlier this month.
Fraiz's daughter attends Florida International University.