DYC Fishing Ltd v Perla del Caribe Inc.

JurisdictionJamaica
CourtCourt of Appeal (Jamaica)
JudgeHarris JA,Dukharan JA,Phillips JA
Judgment Date24 June 2014
Neutral Citation[2014] JMCA Civ 26,JM 2014 CA 65
Date24 June 2014
Docket NumberAPPEAL NO 11/2012

[2014] JMCA Civ 26

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT CIVIL

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

APPEAL NO 11/2012

Between
DYC Fishing Limited
Appellant
and
Perla Del Caribe Inc
Respondent

Ransford Braham QC and Christopher Dunkley instructed by Phillipson Partners for the appellant

Abraham Dabdoub instructed by Dabdoub Dabdoub and Co for the respondent

JUDGMENTS - Enforcement of foreign judgment - Joint venture agreement - Breach of contract - Jurisdiction - Whether Jamaica was the natural forum for the hearing

Harris JA
1

This appeal arises out of an action brought by the respondent for the enforcement of a judgment obtained against the appellant in the 11 th Judicial Circuit Court for Miami-Dade County, in the state of Florida, which judgment was enforced by Anderson J on 17 December 2011. The appellant now challenges the judgment of Anderson J.

2

The appellant, DYC Fishing Ltd (“DYC”) is a limited liability company duly incorporated under the laws of Jamaica and the respondent, Perla Del Caribe (“Perla”) is a corporation duly incorporated under the laws of Florida in the United States of America. Perla was incorporated in 1998, by two shareholders, Antonio Martinez-Malo and Ramon Placers. Prior to Perla's incorporation, DYC had entered into a joint venture agreement with Messrs Martinez-Malo and Placers for the sale and distribution of conchs and other seafood products. Subsequent to Perla's incorporation, its shares were transferred to Mr Placers' daughter, Mrs Clara Martinez, and to Mrs Liliana Martinez-Malo, Mr Martinez-Malo's wife. Each of these ladies held 50 percent of the shares. Despite the transfer of the shares, the joint venture agreement remained intact. The agreement continued up until 2001. Mr Martinez-Malo is the president and principal shareholder of Anchor Seafood Inc, a company in Miami, which DYC appointed as agent for conducting its business in Florida. On 14 June 2001, DYC entered into a brokerage agreement with Essex Exports Inc, ‘Essex’, an American company, for the purchase and resale of conchs, to the European Union and its dominions. On each occasion on which Essex sold a container of conchs, it issued a purchase order to DYC which, in turn, released the product from its cold storage facility in Miami.

3

A dispute arose between DYC and Perla, following which, on 25 February 2002, Perla and Mrs Martinez brought a claim against Anchor Seafood Inc, Mr Martinez-Malo and Mrs Martinez-Malo in the Circuit Court of the 11 th Judicial Circuit for the Miami-Dade County in the state of Florida, the United States of America, for damages and breach of contract. DYC and Essex were subsequently joined as defendants, by way of an amended verified complaint filed by Perla on 15 April 2002. On 3 May 2002, Anchor Seafood Inc and Mr and Mrs Martinez-Malo filed answers, defences and a counterclaim against Mrs Martinez and also filed a third party complaint against Placers and Sons, a corporation in Florida operated by Mr Martinez Malo. On 14 December 2004, DYC defended the claim by the filing of an answer and affirmative defences to the claim.

4

On 27 June 2002, a second verified complaint was filed by Perla seeking judgment against DYC:

  • ‘(a) Dissolving the partnership;

  • (b) Ordering Defendant DYC to comply with this Court's previous Order by depositing all funds collected from October of 2001 to the present into the escrow account;

  • (c) Restraining DYC from disposing of or drawing on any of the partnership funds so diverted to it to date;

  • (d) Ordering the marshalling of the monies collected by DYC from sales to Essex, as well as for impending sales to Essex, for deposit into the escrow account;

  • (e) Ordering DYC to account for and pay to Perla, share of the partnership funds misappropriated and diverted by DYC;

  • (f) For attorneys [sic] fees and costs of this action; and

  • (g) For such action and further relief as this Court seems [sic] appropriate.’

5

On 29 July 2002, a motion was filed by DYC to dismiss this complaint ‘for lack of jurisdiction and for failure to state a cause of action’. Two years later, DYC withdrew the motion. On 17 February 2005, an evidentiary hearing as to jurisdiction was conducted in which the pleadings and the evidence advanced by Perla and DYC were considered, subsequent to which the court held that the Floridian court exercised personal jurisdiction over DYC.

6

DYC, thereafter, on 9 January 2006, filed a request for admissions which was served on Perla. The effect of this document was to obtain admissions on the merits of the claim.

7

Perla filed a fourth amended verified complaint on 24 March 2006. In April 2006, DYC filed interrogatories and a request for the production of documents by Perla, on which it (Perla) intended to place reliance in proof of its claim. An order was made for the production of documents by DYC. DYC failed to comply as a consequence of which, an order for contempt of court was made against DYC on 6 November 2006. DYC's defence was struck out and a default judgment was entered against it. Subsequently, damages were assessed by a jury and an award was made to Perla.

8

DYC, being unhappy with the judgment, filed an appeal. On 26 November 2008, the Third District Court of Appeal set aside the judgment in part. It upheld the striking out of the defence but remitted for trial, the question of damages, by the court below, as that court, in awarding damages, ordered unliquidated damages to Perla by placing reliance solely on Mrs Martinez's affidavit.

9

At the retrial of the issue of damages, DYC was represented by an attorney, and on 24 November 2009, a verdict was given by a jury in favour of Perla for loss of profits which was assessed at US$1,034,111.54. Following the verdict, on 14 January 2010, a final judgment was delivered in the undermentioned terms:

‘IT IS ADJUDGED that [sic] Plaintiff PERLA DEL CARIBE, INC. 750 West 20 th Street, Hialeah, Florida 33010, recover from [sic] Defendant DYC FISHING, LTD., 23 Brentford Road, Kingston, Jamaica, W.I., compensatory damages in the sum of $1,034,111.54, and prejudgment interest from February 25, 2002 to January 14, 2010 at the statutory rates in the sum of $692,130.66, making a total of $1,726,242.20 that shall bear interest at the rate of 6% a year, for which let execution issue.

The Court reserves jurisdiction to determine the amount of taxable costs and attorneys' fees.’

10

On 20 April 2010, the Floridian court awarded Perla the sum of US$129,867.07, as taxable costs and attorneys' fees. Interest was also awarded on that sum.

11

On 8 February 2010, DYC filed a notice of appeal against the jury's verdict and the judgment. It reads:

‘NOTICE IS GIVEN that DYC FISHING, LTD., appeals to the Third District Court of Appeal, the Judgment of this court rendered January 14, 2010. The nature of the Judgment is a final order. A conformed copy of the order designated is attached in accordance with applicable Florida Rules of Appellate Procedure.’

12

On 21 April 2010, DYC withdrew the appeal and served, on the respondent, the following notice:

APPELLANT'S NOTICE OF DISMISSAL OF CAUSE

Appellant, DYC FISHING LTD., through counsel, hereby gives notice of dismissal of the cause in this pending appeal, pursuant to Rule 9.350 (b), Fla. R. App. P.,

WHEREFORE, Appellant prays that this Honourable Court accept [sic] this Notice of Dismissal and that the Clerk of the Court notify the Clerk of the lower tribunal, in accordance with Rule 9.350(c), Fla. R. App. R.’

13

DYC, having failed to honour the judgment of the Floridian Court, on 30 April 2010, Perla brought proceedings, under the Judgments (Foreign) (Reciprocal Enforcement) Act, in the Supreme Court of Jamaica by way of a fixed date claim form against DYC. Paragraphs 4, 5 and 6 read:

‘ 4. The Claim was contested by the Defendant who, on the 10 th day of April 2006 entered an Answer to the Complaint. That the contested claim was heard and a verdict rendered on the 24 th day of November 2009.

5. That pursuant to the verdict of the Court, on the 14 th day of January 2010, it was adjudged that the Claimant recover from the Defendant compensatory damages in the sum of $1,034,111.54 and prejudgement interest from February 25, 2002 to January 14, 2010 at the statutory rate in the sum of $ 692,130.66 making a total of $1,726,242.20 that shall bear interest at the rate of 6% per year for which execution may issue. A photocopy of the said judgment is attached hereto marked “Perla 1”.

6. That the Court reserved jurisdiction to determine the amount of taxable costs and attorneys “fees and the 20 th day of April 2010 the Court did award the sum of $129,87.07 [sic] as taxable costs and Attorney's fees. A photocopy of the order of the Court is attached hereto marked “Perla 2.”

The following was sought:

  • ‘1. Judgment to be entered for the Claimant against the Defendant in the sum of One Million Seven Hundred and Twenty-Six Thousand Two Hundred and Forty Two and Twenty Cents ($1,726,242.20) currency of the United States of America and Dollars together with interest thereon at the rate of 6% per year from the 14 th day of January 2010 until payment pursuant to a Judgment handed down against the Defendant in favour of the Claimant in the CIRCUIT COURT OF THE 11 TH DISTRICT IN AND FOR MIAMI-DADE COUNTY, FLORIDA, and

  • 2. for recovery of the sum of One Hundred and Twenty-Nine Thousand Eight Hundred and Sixty-Seven Dollars and Seven Cents (129,867.07) currency of the United States of America plus interest at the rate of 6% per annum from the 20 th day of April 2010 to the date of payment pursuant to an Order for taxable costs and Attorneys [sic] Fees made on Tuesday the 20 th day of April 2010 by CIRCUIT COURT JUDGE MARC...

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