Exceletech, Inc. v. Williams
| Decision Date | 30 April 1992 |
| Docket Number | No. 78123,78123 |
| Parties | EXCELETECH, INC., Petitioner, v. S.W. WILLIAMS, Respondent. 597 So.2d 275, 17 Fla. L. Week. S259 |
| Court | Florida Supreme Court |
John R. Stump and Gary J. Lublin of Frith & Stump, P.A., Orlando, for petitioner.
Robert J. Pleus, Jr. and Richard D. Connor, Jr. of Pleus, Adams & Spears, P.A., Orlando, for respondent.
We review Exceletech, Inc. v. Williams, 579 So.2d 850 (Fla. 5th DCA 1991), which held that, in impleading a third-party defendant in proceedings supplementary, it was not a prerequisite for the court to examine the judgment creditor, nor was it necessary for the motion to interplead to be sworn to. The district court certified direct conflict with Robert B. Ehmann, Inc. v. Bergh, 363 So.2d 613 (Fla. 1st DCA 1978). We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const. For the reasons expressed, we approve the opinion of the Fifth District Court in this case and disapprove Ehmann.
The relevant facts establish that S.W. Williams (Williams) obtained a final judgment against John D. Brown (Brown) and Beth M. House (House) in excess of $4 million. 1 After obtaining a writ of execution, Williams filed a motion for proceedings supplementary and sought the appointment of a special master in accordance with the provisions of section 56.29(11), Florida Statutes (1989). The motion was granted and, subsequently, Williams filed a petition to implead Exceletech, alleging that "Brown and House own approximately 85% of Exceletech, Inc.," and that Exceletech moved to quash the petition to implead the corporation in the proceedings supplementary. In its motion, Exceletech asserted that a judgment creditor must establish a prima facie showing by testimony under oath that the proposed third-party defendant holds specific assets subject to the movant's claim, and only after that has been established in an evidentiary hearing may the court implead a third-party defendant and issue an order to show cause. The trial court denied Exceletech's motion and allowed Williams to implead Exceletech.
On appeal, the district court affirmed the trial court's order in an en banc decision. In its opinion, the district court receded from Timothy Dunn Associates, Inc. v. Seligman, 557 So.2d 207 (Fla. 5th DCA 1990); Ruddy v. Ashton, 554 So.2d 557 (Fla. 5th DCA 1989); and Wieczoreck v. H & H Builders, Inc., 450 So.2d 867 (Fla. 5th DCA 1984), aff'd on other grounds, 475 So.2d 227 (Fla.1985), to the extent those cases required the examination of the judgment creditor in proceedings supplementary. The court expressly acknowledged direct conflict with Ehmann.
In Ehmann, the First District Court held that, as a precondition to impleading a third-party defendant, a judgment creditor must: (1) serve the motion for impleader, specifying the creditor's claims against the third-party defendant; and (2) establish at a hearing a prima facie case, through testimony under oath, that the third-party defendants hold assets that are subject to the creditor's claim. In the instant case, the Fifth District rejected that position, receded from its prior decisions following Ehmann, and stated that
there is nothing in section 56.29 which requires a judgment creditor to be examined by the court. That section does not even address the subject of impleading third parties. It provides for the defendant in execution (i.e., the judgment debtor ) to appear before the court to be examined concerning his property. There is no legal or logical basis for requiring that a judgment creditor be examined by the court as a condition precedent to allowing impleader of a third party defendant in proceedings...
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...strongly indicates that the Legislature did not intend to require the probable cause petition to be sworn. Cf. Exceletech, Inc. v. Williams, 597 So.2d 275, 276 (Fla.1992) ("[W]e find no requirement in the rules that the [interpleader] petition must be sworn to, and, if this is to be a requi......
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...Rules of Appellate Procedure. See also Exceletech, Inc. v. Williams, 579 So.2d 850 (Fla. 5th DCA 1991) (en banc), approved by 597 So.2d 275 (Fla.1992); Mogul v. Fodiman, 406 So.2d 1225 (Fla. 5th DCA 1981); but see Maryland Cas. Co. v. Century Constr. Corp., 656 So.2d 611, 612 (Fla. 1st DCA ......
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Kephart v. Regier, No. SC02-936 (FL 3/24/2005)
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