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Systemax, Inc. v. Fiorentino

Florida Court of Appeals, Third District

October 23, 2019

Systemax, Inc., Appellant,
Gilbert Fiorentino, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from a non-final order from the Circuit Court for Miami-Dade County, John W. Thornton, Jr., Judge, Lower Tribunal No. 17-07227.

          Bruce S. Rogow and Tara A. Campion (Ft. Lauderdale), for appellant.

          AGENTIS, PLLC, Christopher B. Spuches, Jake M. Greenberg, and Alexander G. Strassman, for appellee.

          Before FERNANDEZ, SCALES, and LINDSEY [1] , JJ.

          PER CURIAM.

         I. BACKGROUND

         Gilbert Fiorentino ("Fiorentino") served as a corporate director and Chief Executive of Technology Products for Systemax, Inc. ("Systemax"), a publicly traded company. Following allegations of fraud, on April 18, 2011, Systemax filed its Form 8-K, [2] where it publicly announced the conclusion of an internal audit investigation of Fiorentino. Shortly thereafter, Fiorentino resigned on May 6, 2011. Simultaneously with Fiorentino's resignation, Fiorentino and Systemax entered into a settlement agreement requiring Fiorentino to surrender assets valued at approximately $11 million to Systemax. As part of the settlement, Fiorentino agreed to five-year noncompetition and non-solicitation obligations.

         Thereafter, the Federal Government charged Fiorentino with conspiracy to commit securities fraud and to impede and impair the Internal Revenue Service in violation of 18 U.S.C. § 371. Fiorentino entered into a plea agreement. Pursuant to the plea agreement, he was sentenced to 60 months of imprisonment and three years of supervised release. As part of the sentence, Fiorentino was ordered to pay $35, 867, 883 in restitution[3] to Systemax.

         On March 29, 2017, Systemax recorded the restitution judgment pursuant to 18 U.S.C. § 3664 (m)(1)(B).[4] Thereafter, Fiorentino filed a counterclaim seeking declaratory and injunctive relief, along with a Section 55.509[5] objection to the enforcement of the federal judgment. Fiorentino also recorded a lis pendens as to the foreign judgment. In the counterclaim, Fiorentino contended that enforcement of the restitution order was precluded by: (1) his settlement agreement with Systemax, and (2) 18 U.S.C. § 3664 (m)(1), which, Fiorentino argued, provided the federal government the sole right to enforce an order of restitution. Systemax moved to overrule Fiorentino's objection, dissolve the lis pendens, and lift the stay of enforcement. Thereafter, Systemax served Fiorentino with discovery in aid of execution. The discovery consisted of, among other things, 103 requests for production, seeking Fiorentino's personal financial information. Fiorentino moved for a protective order and requested a stay of discovery.

         Following a hearing, the trial court entered the order on appeal. In the order, the trial court concludes that, although a victim is entitled to domesticate a federal restitution judgment, only the United States government may pursue enforcement of the lien created thereby. The trial court, however, rejected Fiorentino's argument that enforcement was precluded by the settlement agreement, finding that criminal restitution is "a separate and distinct remedy from that of the civil case that was previously settled." For this reason, the trial court declined to rule on Fiorentino's request for declaratory judgment and injunctive relief. In sum, the trial court denied Systemax's motions to overrule the objection, entered a stay, and dissolved the lis pendens. Consistent with its rulings, the court granted Fiorentino's motion for a protective order and stayed discovery of Fiorentino's personal financial information. This appeal followed.[6]

         The issue on appeal is whether 18 U.S.C. §3664 (m)(1)(B) authorizes a criminal victim to pursue collection of a federal restitution order in state court.


         As a pure question of statutory interpretation, we review this matter de novo. Borden v. East-European Ins. Co., 921 So.2d 587, 591 (Fla. 2006).

         III. ANALYSIS

         A. Jurisdiction

         Appellant claims that we have jurisdiction based on Florida Rule of Appellate Procedure 9.030(b)(1)(A). However, that rule generally pertains to appeals from final orders. The order at issue is not a final order.

         Here, the trial court's order dissolved a lis pendens. In Rodriguez v. Guerra, 254 So.3d 521 (Fla. 3d DCA 2018), we addressed this court's ...

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