SHIVA STEIN, on behalf of herself and all others similarly situated, Appellant,
BBX CAPITAL CORP., JOHN E. ABDO, NORMAN H. BECKER, STEVEN M. COLDREN, WILLIS N. HOLCOMBE, JARETT S. LEVAN, ANTHONY P. SEGRETO, CHARLIE C. WINNINGHAM II, BFC FINANCIAL CORPORATION, and BBX MERGER SUBSIDIARY LLC, Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jack Tuter, Judge, L.T Case No. 16-014713
Komlossy and Ross A. Appel of Komlossy Law, P.A., Hollywood,
and Gustavo F. Bruckner and Gabriel Henriquez of Pomerantz
LLP, New York, NY, for appellant.
E. Stearns, Grace L. Mead, Andrea N. Nathan, and Veronica de
Zayas of Stearns Weaver Miller Weissler Alhadeff &
Sitterson, P.A., Miami, and Thomas G. Aubin of Stearns Weaver
Miller Weissler Alhadeff & Sitterson, P.A., Fort
Lauderdale, for BFC Financial Corporation, BBX Merger
Subsidiary LLC, John E. Abdo, and Jarett S. Levan.
P. Miller and Samantha J. Kavanaugh of Akerman LLP, Miami,
for BBX Capital Corporation, Norman H. Becker, Steven M.
Coldren, Willis N. Holcombe, Anthony P. Segreto, and Charlie
C. Winningham II.
Shiva Stein, on behalf of herself and others similarly
situated, challenged the consideration offered for her shares
in Appellee BBX Capital Corporation that were acquired in a
merger with Appellee BFC Financial Corporation. She appeals a
final order dismissing her complaint with prejudice.
Concluding that Appellant has not set forth "sufficient
ultimate facts" showing entitlement to relief beyond the
statutory remedy to which Appellee concedes Appellant is
entitled, we affirm.
time of her complaint, Appellant owned shares of BBX. Her
complaint was directed at BFC's proposed acquisition of
BBX. BFC already owned eighty-one percent of BBX, and sought
to acquire the remaining nineteen percent in exchange for
cash or shares in BFC. The purchase was conditioned on both
the approval of a special committee composed of independent
BBX directors and an approving vote of a majority of the
minority BBX shareholders unaffiliated with BFC. Under the
terms of the proposed transaction, BBX shareholders could
elect to receive shares of BFC's common stock; a cash
payment for each share held; or a combination of shares and
complaint maintained that the proposed transaction
significantly undervalued BBX with flawed calculations and
that, by agreeing to sell BBX at an inadequate price, the
result of an unfair process, the BBX board breached its
fiduciary duties to shareholders. Appellant also alleged that
material calculations were omitted in arriving at a sale
price, and that minority shareholders were not fully informed
with respect to the material details of the transaction.
Appellant refused the near exclusive statutory remedy of an
independent appraisal pursuant to section 607.1302, Florida
Statutes (2016). Instead, she contended that she qualified
for the statute's limited exception to appraisal set
forth in section 607.1302(4)(b) (discussed below), and sought
equitable relief from the courts. The trial court's order
quoted Williams v. Stanford, 977 So.2d 722, 730
(Fla. 1st DCA 2008), and dismissed the complaint because it
failed to sufficiently allege "specific acts of fraud,
misrepresentation, self-dealing, [or] deliberate waste of
standard of review of orders dismissing complaints with
prejudice is de novo. MEBA Med. & Benefits Plan v.
Lago, 867 So.2d 1184, 1186 (Fla. 4th DCA 2004). To
survive a motion to dismiss, a complaint must allege
"sufficient ultimate facts" showing entitlement to
relief. Id. While we must accept the facts alleged
as true and make all reasonable inferences in favor of the
pleader, id., conclusory allegations are
insufficient. Shands Teaching Hosp. and Clinics, Inc. v.
Estate of Lawson ex rel. Lawson, 175 So.3d 327, 331
(Fla. 1st DCA 2015) (en banc).
607.1302, Florida Statutes (2003)-Florida's
'appraisal rights' statute-generally requires
minority shareholders who dissent from a major transaction or
disposition of assets to seek the remedy of tendering their
shares for appraisal and buy-back at a fair price . . .
." Williams, 977 So.2d at 726-27. The statute
aids the courts from becoming "bogged down in a wide
range of disputes over the fairness of cash-out prices."
Id. at 729. This includes mergers. §
607.1302(1)(a), (e), Fla. Stat. (2016).
shareholder entitled to appraisal rights . . . may not
challenge a completed corporate action for which appraisal
rights are available unless such corporate action: . . . (b)
[w]as procured as a result of fraud or material
misrepresentation." § ...