IN THE SUPREME COURT OF FLORIDA

Filing # 15572814 Electronically Filed 07/03/2014 05:32:02 PM RECEIVED, 7/3/2014 17:33:34, John A. Tomasino, Clerk, Supreme Court MOHAMMAD ANWAR FARID AL-SALEH, IN THE SUPREME COURT OF FLORIDA CASE NO. SC14-1120 vs. Petitioner, L.T. Case nos. 4D13-1447, 502008CA10187XX HARRY SARGEANT, III, MUSTAFA ABU-NABA A, and INTERNATIONAL OIL TRADING COMPANY, LLC, Respondents. / PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT RESPONDENTS BRIEF ON JURISDICTION Charles W. Throckmorton KOZYAK TROPIN & THROCKMORTON, P.A. 2525 Ponce de Leon, 9th Floor Coral Gables, FL 33134 Telephone: (305) 372-1800 Facsimile: (305) 372-3508 Christopher M. Kise FOLEY & LARDNER LLP 106 East College Avenue, Ste. 900 Tallahassee, Florida 32301 Telephone: (850) 222-6100 Facsimile: (850) 561-6475 Co-Counsel for Respondents Raoul G. Cantero David P. Draigh Laura M. Reich WHITE & CASE LLP Southeast Financial Center 200 S. Biscayne Blvd., Ste. 4900 Miami, Florida 33131-2352 Telephone: (305) 371-2700 Facsimile: (305) 358-5744

TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS... ii JURISDICTIONAL STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 I. II. THE OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE THIRD DCA S DECISION IN GENERAL ELECTRIC OR THIS COURT S DECISION IN RUTH... 3 PETITIONER S POLICY ARGUMENTS ARE UNAVAILING... 6 CONCLUSION... 8 CERTIFICATE OF SERVICE... 10 CERTIFICATE OF COMPLIANCE... 11 i

TABLE OF CITATIONS PAGE CASES Aravena v. Miami-Dade Cnty., 928 So. 2d 1163 (Fla. 2006)... 3 Dep t of Health and Rehabilitative Servs. v. Nat l Adoption Counseling Serv., Inc., 498 So. 2d 888 (Fla. 1986)... 3 Dusesoi v. Dusesoi, 498 So. 2d 1348 (Fla. 2d DCA 1986)... 6 General Elec. Capital Corp. v. Advance Petroleum, Inc., 660 So. 2d 1139 (Fla. 3d DCA 1995)... passim In re Emergency Amendments to Rules of Appellate Procedure, 381 So. 2d 1370 (Fla. 1980)... 6 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 3, 6 Koehler v. Bank of Bermuda Ltd., 911 N.E.2d 825 (N.Y. 2009)... 7 Ruth v. Dep t of Legal Affairs, 684 So. 2d 181 (Fla. 1996)... 1, 2, 5, 6 Sargeant v. Al-Saleh, 2013 WL 1980264 (Fla. 4th DCA May 15, 2013)... 1 Times Publ g Co. v. Russell, III, 615 So. 2d 158 (Fla. 1993)... 3, 5 STATUTES AND RULES Fla. R. App. P. 9.030(a)(2)(A)(iv)... 1 55.202, Fla. Stat. (2013)... 4 55.501-09, Fla. Stat. (2013)... 7, 8 ii

56.29, Fla. Stat. (2013)... 7 329.51, Fla. Stat. (2013)... 5 OTHER AUTHORITY Article V, Section 3(b)(3), Florida Constitution... 1 iii

JURISDICTIONAL STATEMENT This Court does not have conflict jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv), because the Fourth DCA s March 5, 2014 opinion (the Opinion ) does not directly and expressly conflict with General Electric Capital Corp. v. Advance Petroleum, Inc., 660 So. 2d 1139 (Fla. 3d DCA 1995), or Ruth v. Department of Legal Affairs, 684 So. 2d 181 (Fla. 1996). STATEMENT OF THE CASE AND FACTS 1 Petitioner, Mohammad Anwar Farid Al-Saleh, sued Defendants, Harry Sargeant, III, Mustafa Abu-Naba a, and International Oil Trading Company, alleging that Sargeant and Abu-Naba a breached an agreement to share equally in the profits of a joint venture that shipped fuel to the U.S. military in Iraq under U.S. Defense Department supply contracts (A. 1-4). The trial court entered final judgment against Sargeant and Abu-Naba a in the amount of $28.8 million (A. 1). The Fourth DCA affirmed. Sargeant v. Al-Saleh, Nos. 4D11 3851, 4D12 760, 2013 WL 1980264 (Fla. 4th DCA May 15, 2013). Petitioner then filed proceedings supplemental to execution, and moved for a court order compelling [Sargeant and Abu-Naba a] to turn over all stock certificates and/or any similar documents memorializing their ownership interest in all corporations in which they 1 The Statement of the Case and Facts is taken from the Opinion, which is attached in the Appendix. A. # refers to the page number of the Appendix. 1

have an ownership interest (A. 1). Sargeant and Abu-Naba a responded that the entities for which Plaintiff sought stock certificates are organized under the laws of foreign countries the Bahamas, the Netherlands, Jordan, the Isle of Man, and the Dominican Republic and that there is no legal basis to compel production of stock certificates of foreign entities because Florida courts have no jurisdiction over such property (A. 1). On March 15, 2013, the trial court entered an order compelling [Sargeant and Abu-Naba a] to turn over the stock certificates to their counsel (A. 1). The Fourth DCA reversed, holding that the trial court lacked jurisdiction to compel the turnover of property located outside the State of Florida (A. 3). Petitioner contends that the Opinion directly and expressly conflicts with General Electric Capital Corp. v. Advance Petroleum, Inc., 660 So. 2d 1139 (Fla. 3d DCA 1995), and Ruth v. Department of Legal Affairs, 684 So. 2d 181 (Fla. 1996). As we show below, no such conflict exists. Therefore, this Court lacks jurisdiction. SUMMARY OF ARGUMENT This Court does not have jurisdiction to review the Opinion because it does not expressly and directly conflict with General Electric Capital Corp. v. Advance Petroleum, Inc., 660 So. 2d 1139 (Fla. 3d DCA 1995), or Ruth v. Department of Legal Affairs, 684 So. 2d 181 (Fla. 1996). As the Fourth DCA held, this case is distinguishable from General Electric because the creditor in that case had a 2

perfected lien on an airplane, for nonpayment for fuel that had been loaded in Florida, under a statute that allowed a lien to be perfected whether or not the airplane remained in Florida. By contrast, in this case there is no dispute that the property sought to be turned over is located in foreign countries, and that it is not subject to any lien. And there is no conflict with Ruth because in that case this Court decided equitable rights to two pieces of real estate, both of them in Florida. ARGUMENT I. THE OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE THIRD DCA S DECISION IN GENERAL ELECTRIC OR THIS COURT S DECISION IN RUTH As the Court knows, conflict jurisdiction exists only if a decision of a court of appeal [] expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980). The conflict cannot be inherent or implied, Dep t of Health and Rehabilitative Servs. v. Nat l Adoption Counseling Serv., Inc., 498 So. 2d 888, 889 (Fla. 1986), and Petitioners own authority holds that the test for conflict jurisdiction is whether the opinions are irreconcilable. Aravena v. Miami-Dade Cnty., 928 So. 2d 1163, 1166 (Fla. 2006). If no irreconcilable conflict exists, this Court lacks jurisdiction to decide the case. Times Publ g Co. v. Russell, III, 615 So. 2d 158, 158 (Fla. 1993). 3

Here, there is no conflict with General Electric Capital Corp. v. Advance Petroleum, Inc., 660 So. 2d 1139 (Fla. 3d DCA 1995). As the Fourth DCA held, this case is distinguishable from General Electric Capital Corp. because the creditor in General Electric Capital Corp. had a perfected lien on the property [an airplane] that the trial court ordered the debtor to return to the State of Florida (A. 2). Petitioner dismisses that distinction, arguing that it was not a controlling fact in General Electric, and that that court had jurisdiction to order the airplane returned to Florida solely because the trial court properly asserted in personam jurisdiction over the defendant, General Electric (br. at 7). Petititioner is simply wrong. The Third DCA made it clear that it did not have jurisdiction over the airplane itself since the aircraft is not within the court s in rem or quasi in rem jurisdictional domain. General Electric, 660 So. 2d at 1143. However, the party seeking return of the aircraft clearly ha[d] a valid, perfected lien on the subject aircraft, and such a lien entitles the lienor to seize the property and sell it in satisfaction of [a] debt. Id. at 1141-42. Thus, the trial court enforced the lienor s rights through its exercise of personal jurisdiction over General Electric. There is no such lien here. There is no dispute that the stock certificates that the trial court ordered to be turned over are located outside of the United States (A. 1). For such property, Florida law only permits a party to obtain a lien on property in this state subject to execution[.] 55.202, Fla. Stat. (2013) 4

(emphasis supplied). By contrast, the creditor in General Electric had a lien under section 329.51, Florida Statutes, which does not require the aircraft to be in Florida when a lien is perfected, but provides that such a lien is enforceable when the lienor records a verified lien notice with the clerk of the circuit court in the county where the aircraft was located at the time the labor, services, fuel, or material was last furnished. 329.51, Fla. Stat. (2013). Given this sharp contrast in circumstances, the Opinion does not expressly and directly conflict with General Electric. See, e.g., Times Publ g Co., 615 So. 2d at 158-59 (finding no conflict where [s]eeking to close records that are presumably open is a substantially different task than seeking to open records that have already been closed ). Petitioner also argues that this Court approved [General Electric] in Ruth v. Dep t of Legal Affairs, 684 So. 2d 181, 185-86 (Fla. 1996) and that the Opinion thus expressly and directly conflicts with Ruth as well, because it sets forth a contrary legal principle limiting a trial court s ability to order a defendant over which it has personal jurisdiction to take action with respect to out-of-state property (br. at 8-9). But Ruth merely cited General Electric for the proposition that the local action rule does not preclude an action such as this where the State and defendant only seek an equitable remedy that will not directly affect the property or its title. Ruth, 684 So. 2d at 186. And Ruth cannot conflict with the 5

Opinion because it addressed equitable rights to two pieces of real estate, both in Florida. Id. at 183. In a footnote citing seven cases upon which the Third District relied, Petitioner argues that those cases reveal the actual holding of [General Electric] (br. at 8 n.4). However, [i]t is conflict of decisions, not conflict of opinions or reasons that supplies jurisdiction for review by certiorari. Jenkins, 385 So. 2d at 1359 (citation omitted). Moreover, only two of those seven cases both divorce cases are from Florida courts, and Dusesoi v. Dusesoi, 498 So. 2d 1348 (Fla. 2d DCA 1986), does not hold that a Texas divorce decree with [an] in personam provision directing [a] wife to execute [a] warranty deed for Florida property [is] entitled to full faith and credit (br. at 8 n.4). To the contrary, the court expressly stated that [w]hether that provision of the Texas decree may be enforced in Florida is not before us. Dusesoi, 498 So. 2d at 1350 (emphasis supplied). Because the Opinion does not expressly and directly conflict with either General Electric or Ruth, this Court lacks jurisdiction. II. PETITIONER S POLICY ARGUMENTS ARE UNAVAILING Petitioner argues that the Opinion is bad public policy, and raises serious concerns about a creditor s ability to collect on its judgments in the Fourth District (br. at 9-10). But Petitioner relies solely on some newspaper articles and blog posts, and ten cases from other jurisdictions (id.). See In re Emergency 6

Amendments to Rules of Appellate Procedure, 381 So. 2d 1370, 1383 (Fla. 1980) ( The jurisdictional brief should be a short, concise statement of the grounds for invoking jurisdiction and the necessary facts. It is not appropriate to argue the merits of the substantive issue involved in the case or discuss any matters not relevant to the threshold jurisdictional issue. ). Petitioner s arguments also ignore the law. Indeed, in proceedings supplementary to execution, judgment creditors may discover the location of debtors assets as the Petitioner has done in this case. See 56.29, Fla. Stat. (2013) (providing that defendant in execution must appear to be examined concerning his or her property and testify under oath concerning all matters and things pertaining to the business and financial interests of defendant which may tend to show what property he or she has and its location ). A judgment creditor may then follow the established procedure for levying on assets located outside of Florida: domesticating a judgment in the court where the asset is located. See, e.g., 55.501-09, Fla. Stat. (2013) (establishing the procedure for recording foreign judgments, granting them full faith and credit in Florida courts). This long-established procedure is informed by strong policy considerations. As the Fourth DCA explained, in many instances there may be competing claims to the foreign assets (A. 3). In such situations, claims against a single asset should be decided in a single forum and... that forum should be, as it 7

traditionally has been, a court of the jurisdiction in which the asset is located (id. (citing Koehler v. Bank of Bermuda Ltd., 911 N.E.2d 825, 831 (N.Y. 2009) (Smith, J., dissenting))). Moreover, allowing trial courts to compel judgment debtors to bring out-of-state assets into Florida would effectively eviscerate the domestication of foreign judgment statutes (id.). As the Fourth DCA also found, [w]e are not aware of any Florida statute or case that expressly permits the action taken by... the trial court in this case (id.). CONCLUSION For all of these reasons, this Court lacks jurisdiction. 8

Dated: July 3, 2014 Respectfully submitted, Charles W. Throckmorton Florida Bar No. 286192 KOZYAK TROPIN & THROCKMORTON, P.A. 2525 Ponce de Leon, 9th Floor Coral Gables, FL 33134 Telephone: (305) 372-1800 Facsimile: (305) 372-3508 E-mail: cwt@kttlaw.com Christopher M. Kise Florida Bar No. 855545 FOLEY & LARDNER LLP 106 East College Avenue, Suite 900 Tallahassee, Florida 32301 Telephone: (850) 222-6100 Facsimile: (850) 561-6475 E-mail: CKise@foley.com WHITE & CASE LLP s/raoul G. Cantero Co-Counsel for Respondents Raoul G. Cantero Florida Bar No. 552356 David P. Draigh Florida Bar No. 624268 Laura M. Reich Florida Bar No. 22792 Southeast Financial Center 200 S. Biscayne Blvd., Suite 4900 Miami, Florida 33131-2352 Telephone: (305) 371-2700 Facsimile: (305) 358-5744 E-mail: rcantero@whitecase.com E-mail: ddraigh@whitecase.com E-mail: lreich@whitecase.com 9

CERTIFICATE OF SERVICE I CERTIFY that on July 3, 2014, a copy of this brief was filed with the Court and was served on the same day by e-mail upon the following: Louis M. Silber, Esq. Silber & Davis, LLC 1806 Old Okeechobee Road West Palm Beach, FL 33409 Telephone: (561) 615-6200 Facsimile: (561) 615-6263 E-mail: lsilber@silberdavis.com Co-Counsel for Petitioner Michael D. Kibler, Esq. Jonathan M. Weiss, Esq. Simpson Thacher & Bartlett LLP 1999 Avenue of the Stars, 29th Floor Los Angeles, CA 90067-4607 Telephone: (310) 407-7500 Facsimile: (310) 407-7502 E-mail: mkibler@stblaw.com E-mail: jweiss@stblaw.com Co-Counsel for Petitioner Barry R. Ostrager, Esq. Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, New York 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 E-mail: bostrager@stblaw.com Co-Counsel for Petitioner Edward H. Davis, Jr. Edward M. Mullins Rodrigo S. Da Silva Astigarraga Davis Mullins & Grossman, P.A. 701 Brickell Avenue, 16th Floor Miami, Florida 33131-2847 Telephone: (305) 372-8282 Facsimile: (305) 372-8202 E-mail: edavis@astidavis.com E-mail: emullins@astidavis.com E-mail: rdasilva@astidavis.com Co-Counsel for Petitioner s/raoul G. Cantero Raoul G. Cantero 10

CERTIFICATE OF COMPLIANCE I CERTIFY that the foregoing brief complies with the font requirement of Florida Rule of Appellate Procedure 9.210(a)(2) and is submitted in Times New Roman 14-point font. s/raoul G. Cantero Raoul G. Cantero 11