Full Opinion

Third District Court of Appeal State of Florida Opinion filed February 26, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1629 Lower Tribunal No. 17-1358 ________________ Gyptec, S.A. now known as Violet Investment Corp. S.A. en Liquidación, et al., Appellants, vs. Carlos Hakim-Daccach, Appellee. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge. 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; Greenberg Traurig, P.A., and Elliot H. Scherker, Brigid F. Cech Samole and Bethany J. M. Pandher, for appellants. Sequor Law, P.A., and Edward H. Davis, Jr., Arnoldo B. Lacayo and Amanda E. Finley; Waldman Barnett, PL, and Glen H. Waldman and Michael A. Sayre, for appellee. Before LINDSEY1, HENDON, and MILLER, JJ. HENDON, J. 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. I. FACTS 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, 1 Judge Lindsey did not participate in oral argument. 2 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 3 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 2 The Gyptec Appellants’ motion to dismiss is still pending below. 4 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. II. STANDARD OF REVIEW 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-movant; and, (4) that the granting of a temporary injunction will not disserve the public interest. Credo LLC v. Speyside Invs. Corp., 259 So. 3d 893, 898 (Fla. 3d DCA 2018). If the trial court enters a temporary injunction, its ruling is subject to an abuse of discretion standard. Bay N Gulf, Inc. v. Anchor Seafood, Inc., 971 So. 2d 842, 843 (Fla. 3d DCA 2007). Further, the trial court’s discretionary ruling 3 The trial court considered the Appellants’ personal jurisdiction arguments, acknowledged that a ruling on that issue had not yet been made, and entered the Injunction Order predicated solely on the court’s in rem jurisdiction. For that matter, the Appellants’ forum non conveniens argument, as well as its assertion that constructive trust is a remedy, is still pending below and cannot be raised for the first time at this level. 5 should not be disturbed on appeal unless it is unreasonable. Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). III. ANALYSIS Florida courts have entered injunctions to protect the res of a trust implied by operation of law. See e.g., TJ Mgmt. Grp, L.L.C. v. Zidon, 990 So. 2d 623, 625 (Fla. 3d DCA 2008) (holding that “an order freezing funds held in a bank account for further determination on the ownership rights to those funds is in the nature of an injunction properly entered”); Ga. Banking Co. v. GMC Lending & Mortg. Servs. Corp., 923 So. 2d 1224 (Fla. 3d DCA 2006) (finding injunctive relief appropriate to prevent dissipation of specific, identifiable funds that had been collected on behalf of the lender and were being held in trust for the bank); Vargas v. Vargas, 771 So. 2d 594, 595-96 (Fla. 3d DCA 2000) (affirming the issuance of an injunction where the plaintiffs “have shown that . . . a lifting of the injunction would expose those assets to conversion or dissipation by a third party,” and “if the assets are taken outside the court’s jurisdiction, the corpus of any possible constructive trust would no longer be available, thereby rendering such equitable relief unattainable should the [plaintiffs] ultimately prevail”); Castillo v. Vlaminck De Castillo, 701 So. 2d 1198, 1199 (Fla. 3d DCA 1997) (affirming the injunctive order where the mother sought imposition of a constructive trust on an account that her son established by improperly employing 6 the proceeds of her $200,000.00 check made payable to him, allegedly on the understanding that he would purchase a certificate of deposit in the names of her and all her surviving children); Pendergraft v. C.H., 225 So. 3d 420, 421 (Fla. 5th DCA 2017) (citing T.J. Mgmt. Grp., 990 So. 2d at 625) (“An order freezing assets for further determination of the ownership right to those assets is in the nature of an injunction.”). Dr. Hakim sought a temporary mandatory injunction to return the Escrow Trust Funds to a restricted escrow account in Miami-Dade County, pending adjudication of his claims to those funds on the merits. Dr. Hakim did not seek, and the trial court did not grant, the ultimate relief that may yet be awarded after trial to determine his one-third ownership interest. Dr. Hakim merely sought to put the trial court and the parties back in the position they were in prior to the Appellants’ transfer of a significant portion of the escrow funds to offshore accounts in Panama and Colombia without notice to the trial court or to Dr. Hakim. The Injunction Order causes the escrow funds to be returned and preserves the status quo ante pending the trial court’s determination of Dr. Hakim’s ownership claims. We hold that the injunction was necessary to protect the specific identified res of the constructive trust claim and to prevent further dissipation of the funds. After a thorough review of the record on appeal, we conclude that the trial court did not abuse its discretion by imposing a mandatory injunction. We 7 therefore affirm the trial court’s order granting Dr. Hakim’s emergency motion for a mandatory injunction to compel the return of the Florida escrow funds to Florida pending adjudication of Dr. Hakim’s ownership and entitlement, and imposing a prohibitory injunction against further fraudulent transfers and dissipation of the Florida escrow funds until Dr. Hakim’s ownership interest is finally determined. Affirmed. 8