Bally Case & Cooler v. H. Kaiser Associates

• Decision Date: 07 May 1981
• Docket Number: No. 80-8237-CIV-JAG.,80-8237-CIV-JAG.
• Parties: BALLY CASE & COOLER, INC., etc., Plaintiff, v. H. KAISER ASSOCIATES, INC., etc., Defendant.
• Court: U.S. District Court — Southern District of Florida

514 F. Supp. 352

BALLY CASE & COOLER, INC., etc., Plaintiff, v. H. KAISER ASSOCIATES, INC., etc., Defendant.

No. 80-8237-CIV-JAG.

United States District Court, S. D. Florida, N. D.

May 7, 1981.

Gerald S. Lesher, Baskin & Sears, Palm Beach, Fla., Robert W. Steele and William E. Wallace, III, Howrey & Simon, Washington, D. C., for plantiff.

Norman J. Kapner, Johnson & Bakst, P.A., West Palm Beach, Fla., Richard W. Groner, Moyle, Jones, & Flanigan, P.A., West Palm Beach, Fla., Stephen H. Reisman, Rosenberg, Rosenberg, Reisman & Glass, Miami, Fla., for garnishee, First Fla. Building Corp.

Fred J. Ward, P.A., Hallandale, Fla., for garnishee, Penn Dutch Meats, Inc.

ORDER

GONZALEZ, District Judge.

THIS CAUSE is before the Court on Plaintiff's Motion to Reconsider and Vacate the Order of February 11, 1981, wherein the court granted Big Green Frog Enterprises, Inc.'s Motion to Set Aside Attachment and to Quash Writ of Execution on a 1969 Piper PA-39 aircraft, Serial number 1845, Registration number N41AG.

On January 16, 1981 the court entered judgment in favor of the plaintiff and against the defendant, in the amount of $50,649.04 plus interests and costs.

Thereafter a Writ of Execution was issued and served on Big Green Frog Enterprises, Inc., an entity not a party to this action. Pursuant to Bally's instructions, the United States Marshal on February 6, 1981 seized a Piper Aircraft that was both titled to and in the possession of Big Green Frog Enterprises.

Big Green Frog Enterprises petitioned this court to set aside the United States Marshal's attachment and to quash the Writ of Execution. Following argument the motion was granted.

Plantiff now seeks to have the court reconsider, and vacate its Order of February 11, 1981.

Federal Rule of Civil Procedure 69(a) provides in part as follows:

... The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought.

Plaintiff contends that Fla.Stat. § 56.16¹ is applicable and that it provides the exclusive remedy available to a third party claiming ownership of seized property.

Section 56.16 does provide a mechanism whereby a third party may claim property upon which a judgment creditor has levied. The third party thereunder may obtain possession of the disputed property by filing an affidavit and posting a bond in an amount double the value of said property. In this third party claim proceeding the third party claimant bears the burden of proof and the issue is tried to a jury.

In support of its argument plaintiff relies on Love v. Allis-Chalmers Corporation, 362 So.2d 1037 (Fla. 4th DCA 1978). In Love the judgment creditor obtained a writ of execution and had the sheriff levy upon certain property that was then in the possession of the judgment debtor. Thereafter, a third party filed an action in replevin claiming ownership and right of possession of the judgment debtor's property. The suit for replevin was dismissed. The claimant then sought to intervene in the original litigation but was refused. Finally, the claimant was able to proceed by complying with the procedures set forth in Fla.Stat. § 56.16.

Plaintiff's contentions concerning sec. 56.16 and the Love case are erroneous.

In the instant case the property levied on was in the possession of the third party, not in the possession of the judgment debtor, thereby raising the presumption that a party in possession of personal property is the lawful owner thereof. Moreover, the record indicates that title to the property was in the name of Big Green Frog Enterprises and not the judgment debtor. Finally Bally, the judgment creditor, well knew that title to the property was and is in the name of Big Green Frog Enterprises.

On January 29, 1981 plaintiff filed a Motion for Temporary Restraining Order seeking to enjoin non-parties from disposing of property previously owned by the judgment debtor. In its supporting affidavit the plaintiff asserted that the subject airplane had been transferred from the defendant to Steven Silver and Nan Silver who thereafter transferred it to Big Green Frog Enterprises. These transfers occurred in October, 1979 — nine months before the institution of the instant suit. This court denied that application for injunctive relief on the ground, inter alia, that neither the Silvers nor Big Green Frog Enterprises had ever been served with any pleadings nor were they parties to the original action.

Although a judgment creditor may question the propriety of any transfer of property by his debtor that does not automatically make section 56.16 the appropriate remedy.

The correct procedure to be followed in the instant case is set forth in Fla.Stat. § 56.29² which contains two jurisdictional prerequisites for supplementary postjudgment proceedings. First, the judgment creditor must present a returned and unsatisfied writ of execution. Second, the judgment creditor must present an affidavit averring that the writ of execution is valid and unsatisfied, as well as listing third parties who are to be impled. Mission Bay Campland, Inc. v. Sumner Financial Corp., 71 F.R.D. 432, 434 (M.D.Fla.1976); Tomayko v. Thomas, 143 So.2d 227, 229-30 (Fla. 3d DCA 1962).

The duty to implead third parties whose interests may be affected by the court's rulings enables the court to acquire jurisdiction over them and affords them the essential elements of procedural due process of law. Mission Bay Campland, 71 F.R.D. at 434. Once the court has jurisdiction over these nonparties, they will be ordered "to show cause why the assets now in their possession or control, allegedly transferred to them by plaintiff, should not be declared fraudulently acquired, the transfers voided, and those assets levied upon to satisfy defendant's judgment." Id. at 435.

It is patently clear that Fla.Stat. § 56.29 is the correct procedure to be followed in execution of judgment where the property sought to be levied on is (a) in the possession or control of a third...