DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT COSTA INVESTORS, LLC, Appellant, v. LIBERTY GRANDE, LLC and MOSES BENSUSAN, Appellees. No. 4D21-2676 [December 21, 2022] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Keathan B. Frink, Judge; L.T. Case No. CACE 18-11130 (12). Victor K. Rones of the Law Offices of Victor K. Rones, P.A., North Miami Beach, for appellant. Bart A. Houston of The Houston Firm, Fort Lauderdale, for appellee Moses Bensusan. WARNER, J. Appellant, Costa Investors, LLC, appeals the order granting final summary judgment in favor of appellee Moses Bensusan on Costa Investors’ complaint alleging fraud. The court determined that Bensusan could not be liable for fraudulent representations in an investor contract, because Bensusan signed as president of the corporation and not individually. Because a corporate officer who actively participates in a fraud can be liable even while acting in a corporate capacity, we reverse the summary judgment. Facts The underlying lawsuit originates out of the ownership and development of four adjacent properties (the “Costa property”) that were first purchased and owned by Liberty Grande LLC (“Liberty”). Bensusan was president and the manager of Liberty and was also president of Costa Hollywood Property LLC, which was a wholly owned subsidiary of Liberty. Costa Hollywood Property’s business was to build the Costa Hollywood Hotel on the Costa Property. On August 28, 2015, Liberty transferred the Costa Property by special warranty deed to Costa Hollywood Property. The deed was signed by Bensusan on behalf of Liberty as Grantor and recorded on September 3, 2015. Just three weeks after the transfer of the Costa property, Bensusan on behalf of Costa Hollywood retained the services of UniSource Inc. to prepare documents to raise funds through an EB-5 Investor program. 1 Costa Investors (a group of EB-5 investors) and Liberty entered into a Loan and Security Agreement in which Costa Investors agreed to make a loan to Liberty as borrower for the development of the Costa Property. The loan agreement provided that Costa Investors would provide a loan not to exceed fifty million dollars to Liberty for financing costs related to Liberty’s development of “Costa Hollywood”, “a new two-building, six-level, luxury condominium-hotel development in Hollywood[.]” Pursuant to the agreement, Liberty granted to Costa Investors “a security interest, Lien and mortgage” in the “assets that comprise the Project” including “the Land and the Improvements thereon” in exchange for the loan to develop and construct the Project. The land specified in the contract was the same land that Liberty transferred to Costa Hollywood the previous month. Bensusan signed the Agreement on behalf of Liberty. The agreement provided that the Borrower “has good, marketable and insurable fee simple title to the Land, and good title to the rest of the Project, subject to no Lien,” when in fact the property had been transferred to Costa Hollywood. The agreement included a Borrower Certificate signed by Bensusan on Liberty’s behalf stating that the “representations and warranties” made by Liberty in the …
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