DAVID FREDERICK BULLEN
a/k/a OWEN GIBBS and ROY WILLIAM GARNER a/k/a DOUGLAS HENRY STILLWELL, Appellants,
v. HER MAGESTY'S [sic] GOVERNMENT OF THE UNITED KINGDOM, Appellee
Case No. 88-1315
Court of Appeal of Florida, Fourth
District
553 So. 2d 1344; 1989 Fla. App.
LEXIS 7199; 15 Fla. L. Weekly D 17
December 20, 1989, Filed
NOTICE: January 24, 1990, Released
for Publication on Denial of Rehearing
SUBSEQUENT HISTORY: Review Denied
June 28, 1990, Reported at 1990 Fla. LEXIS 1097.
[**1] PRIOR HISTORY: Appeal from the Circuit Court for
Broward County; Stephen R. Booher, Judge.
COUNSEL: Edward S. Schwartz, of Law
Offices of Philip M. Gerson, P.A., Miami, for appellants.
Kenneth E. Brooten, Jr., of Law
Offices of Kenneth E. Brooten, Jr., Chartered, Orlando and Washington, D.C.,
for appellee.
JUDGES: Frank, Associate Judge,
Downey and Dell, JJ., concur.
OPINION BY: FRANK
OPINION: [*1344] This appeal arises from
the trial court's entry of a final summary judgment in favor of the United
Kingdom. In doing so, the trial court domesticated and enforced judgments
rendered by that sovereign and invested it with title to property, real and
personal, located in Broward County. We affirm.
The appellants were convicted in the
criminal court of the United Kingdom of conspiracy to contravene section 38(1)
of [*1345] the Finance Act 1972 by the fraudulent evasion of value added
tax. Each was sentenced to a term of imprisonment and fined. The offenses had
caused loss or damage to Her Majesty's Customs and Excise in amounts
approximating that which was due for the value added tax - some 1.9 million
pounds. The appellants were declared criminally bankrupt and the British
officials filed creditor's petitions for receiving [**2] orders against the
appellants in their real and fictitious names, indicating the amounts owed the
Customs and Excise. The receiving orders were entered and an official receiver
of the estates of the debtors was designated. It is those orders which are at
the heart of the trial court's final summary judgment.
By way of background, it appears the
appellants appealed their sentences on the ground that it was wrong to impose
fines and orders for costs where receiving orders had been entered; that it was
wrong to impose consecutive sentences in default of payment of the fines
because the effect of the criminal bankruptcy orders was to ensure that
appellants would be unable to pay the fines, which effectively resulted in
sentences above the permitted maximum. The British Court of Appeal quashed the
fines and reduced Garner's term of imprisonment for reasons not significant to
this appeal. See Regina v. Garner, [1986] 1 W.L.R. 73. The appellate court
noted that the receiving orders had the effect of vesting in the receiver all
of the appellants' assets in England and abroad.
The United Kingdom thereafter filed
a complaint in the Circuit Court of Broward County to recognize and enforce
[**3] the foreign judgments and a notice of lis pendens affecting
a condominium within Broward County. The property was titled in Bullen's
fictitious name of Owen Gibbs. After the parties filed cross motions for
summary judgment or judgment on the pleadings, and a hearing was held, the
trial court entered an order finding that there was no dispute that Bullen
a/k/a Gibbs was the record owner of the real property, the title to which was
sought in the name of the British receiver by the domestication and enforcement
of the British orders. The trial court further found that "[t]he enforcement
of the Foreign Country Judgments in the case sub judice is consistent with the
law and public policy of the state of Florida," citing sections 895.02, et
seq., Florida Statutes, and Banderas v. Banco Central del Ecuador, 461 So.2d
265 (Fla. 3d DCA 1985). It declared that Gibbs had no interest in the
condominium or its contents.
The appellants have attacked the
entry of the final summary judgment on three grounds, none of which has merit.
First, they argue, the orders entered incident to criminal convictions were
penal and not enforceable by a foreign court. Secondly, they allege that the
orders [**4] were entered by the United Kingdom because Bullen and
Garner owed taxes to that country, and an American court cannot enforce a
foreign country's judgment for taxes. Their final contention is that Florida's
courts should not grant comity to British criminal bankruptcy or receiving
orders because there was no evidence that a British court would enforce such
orders of other nations.
The first contention is readily
disposed of with reference to the fact that the fines imposed in the criminal
proceeding were quashed by the British appellate court. Moreover, the receiving
orders represent nothing other than judgments reflecting indebtedness to the
United Kingdom arising from the fraudulent diversion of money collected as
value added tax. The second ground, based upon the claim that the illegally
gained funds are "taxes" owed by the appellants as an aspect of the
United Kingdom's taxing laws, falls far short of the mark. That the funds came
into the appellants' hands through a governmental taxing policy does not mean
that such funds forever retained the mantle of "taxes." The source of
the money became irrelevant upon defalcation and the United Kingdom simply
became a judgment creditor [**5] of the funds illicitly held by the
appellants. [*1346] Illegal conversion of the funds to the appellants' personal
use rendered them as susceptible of recapture through a judicial decree as
would be the case with any asset within the appellants' possession. We also
reject the appellants' third assertion that the British courts would not
enforce a similar order issued by another country. Nothing has been presented
to us indicating a public policy consideration foreclosing a Florida court from
enforcing the receiving orders. See Warren v. Warren, 73 Fla. 764, 75 So. 35
(Fla. 1917). The appellants have not impeached the validity of the British
court's exercise of jurisdiction over the subject matter or the appellants and
there has been no attack upon the jurisprudence underlying entry of the
receiving orders. There is certainly no showing by the appellants of prejudice
in the British tribunal or a fraud on its part in granting the receiving orders.
Thus, the receiving orders are entitled to a conclusive effect as between the
appellants and the United Kingdom. Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139,
40 L.Ed. 95 (1895). Within that context, the customary principle of comity
controls. Cf., Ogden [**6] v. Ogden, 159 Fla. 604, 33 So.2d
870, 875 (Fla. 1947) (we will not, on the ground of international comity,
recognize the judgment of an English Court for that purpose when the essentials
of due process, as our law requires, are not observed).
The appellants have attempted to
mischaracterize the effect of domestication and enforcement of the British
judgments. The opinion of the British appellate court explains the procedural
effect of the criminal bankruptcy order:
The first thing to notice about a
criminal bankruptcy order is that, of itself, it has no practical effect at
all. All it does is provide conclusive proof of an act of bankruptcy upon which
the official petitioner, who is the Director of Public Relations or one of the
creditors named in the order, can petition for a receiving order. . . .
As we have said, the effect of the
receiving order is to vest in the official receiver all of the assets of the
offender.
1 W.L.R. at 77-78. From all
indications, then, a receiving order entered in the United Kingdom is in no
meaningful part different from a civil judgment rendered in the United States.
The Florida court was asked to levy on the judgment and to declare that Bullen
a/k/a Gibbs [**7] no longer maintained any judicially cognizable right
in the subject condominium paramount to that invested in the British government
by a decree originating in that country.
The trial court meticulously
examined the documentation presented to it and received the testimony of the
Assistant Chief Investigator of Her Majesty's Customs and Excise Investigation
Division, who explained the legal procedures culminating in the receiving
orders. The trial court properly concluded that:
the legal effect of the
domestication and enforcement of the Foreign Country Judgments which are sought
to be enforced is simply to vest title to the condominium and its contents in
the Official Receiver [t]itle already having passed upon rendition of the
Receiving Order to the Receiver.
We agree. Appellants have demonstrated
no error.
Affirmed.
DOWNEY and DELL, JJ., concur.