WILLEMSTAD–In a case with international political intrigue, a state appellate court in Miami resurrected a US $72 million theft claim against two Latin American bankers, including a top opponent of the late Venezuelan President Hugo Chavez.
The Third District Court of Appeal in Miami found that Miami-Dade Circuit Judge Jacqueline Hogan Scola should not have dismissed the case on forum grounds when she ruled the case should have been pursued in Curaçao.
The unanimous panel, with a specially concurring opinion by Chief Judge Frank A. Shepherd, found Scola “erroneously shifted the burden of proof regarding the viability of the alternative forum to the plaintiffs.” The opinion stems from the growing amount of Latin American litigationa brought in South Florida.
The plaintiffs are two powerful Venezuelan media companies: billboard company Publicidad Vepaco C.A. and television network LaTele Television C.A. The companies claim ex-bankers Nelson Mezerhane and Rogelio Trujillo stole and converted US $72 million in U.S. Treasury bills belonging to the plaintiffs through their Venezuelan bank, Banco Federal C.A., passing the money through three entities in Curaçao.
In 2009, the Venezuelan government took control of Banco Federal and took a controlling interest in Globovision, a 24-hour news station that was a Chavez opposition voice.
Mezerhane, the bank’s owner, also held a substantial stake in the media company. He and Trujillo fled to Florida before criminal charges were filed against them in Venezuela.
“I’m glad the court saw it our way and we will have a chance to take it to trial,” said attorney Rodolfo Sorondo Jr., a partner at Holland & Knight in Miami and a former appellate judge representing Vepaco and LaTele.
Sorondo noted Mezerhane didn’t find South Florida inconvenient to bring his federal lawsuit. The defendants argued to the DCA that the alleged harmful events occurred in Curaçao and therefore the island country has jurisdiction.
Mezerhane sought political asylum in the U.S. and filed a federal lawsuit in Miami against the Venezuelan government.
“As for the references to charges in Venezuela, the U.S. State Department granted my client asylum because of the persecution he faced in Venezuela. That speaks loud,” said Miami attorney Joseph DeMaria, a partner at Fox Rothschild who represents Mezerhane of Boca Raton.
Scola dismissed the most serious count, a civil theft claim, with prejudice. That decision was not appealed and stands, DeMaria said.
South Miami attorney Henry Bell, who represents ex-bank CEO Trujillo, said if the DCA decision stands, it will make Florida taxpayers carry the burden of adjudicating numerous disputes stemming from facts and businesses with little or no connection to the state.
“It’s bad enough for Mr. Trujillo that he was run out of his country because of its political upheaval. He is a victim,” Bell said. “He did not commit any fraud upon anyone and we will contest any claim or suggestion otherwise.”
Judge Leslie Rothenberg wrote the majority opinion. Judge Kevin Emas concurred. The appellate court heard arguments in November 2013.
Rothenberg said the “harmful events” allegedly occurred in Venezuela, not Curaçao where the T-bills allegedly were misappropriated. “It is uncertain whether the courts in the alternative forum (Curaçao) will have the subject matter jurisdiction over the litigation,” she wrote.
Rothenberg said the trial court made other rulings that would cost the plaintiffs time and money if Curaçao ended up denying jurisdiction.
In his concurring opinion, Shepherd said the defendants’ position that Florida presented “relative disadvantages” didn’t pass the “proverbial straight-face test.” He said there appeared to be material witnesses in Florida, including former officers and directors of Banco Federal, who could be called at trial.
“The defendants, who live in Florida, are the alleged architects of the fraud,” Shepherd wrote. “Their testimony alone should be sufficient to acquit themselves of the alleged fraud, if a defence there be.”
DeMaria said for an appellate judge to make such a statement is troubling because there has been no fraud evidence presented. “They are mere allegations of a plaintiff,” he said. “I don’t think any judge should be pre-judging this case.”
Shepherd said he reluctantly joined the majority, stating the only connection for the defendants is Florida residence. “They reside here as a matter of grace, growing out of political upheaval in their own country,” he wrote. “The courts of this state have no obligation, legal or otherwise, to supplement the federal munificence being received by them.”
DeMaria said the concurrence reads more like a dissent. “He is inviting us to go to the Florida Supreme Court on this,” DeMaria said.
LaTele has been making legal news of late in South Florida, bringing a high-profile copyright infringement lawsuit against Telemundo Telecommunications Group, claiming the Spanish-language network in Hialeah stole the premise of its telenovela (soap opera) “Maria Maria” for the show “El Rostro de Analia.”