Fundamental Long Term Care Holdings, LLC v. Estate of Jackson
Decision Date | 08 February 2013 |
Docket Number | No. 2D12–394.,2D12–394. |
Citation | 110 So.3d 6 |
Parties | FUNDAMENTAL LONG TERM CARE HOLDINGS, LLC, Murray Forman, and Leonard Grunstein, Appellants, v. The ESTATE of Juanita Amelia JACKSON, by and through Cathy JACKSON–PLATTS f/k/a Catherine Whatley, as Personal Representative of the Estate of Juanita Amelia Jackson, Appellee. |
Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Matthew Triggs, C. Sanders McNew, and Andrew L. Hoffman of Proskauer Rose LLP, Boca Raton, for Appellants.
Isaac R. Ruiz–Carus and Joanna M. Greber of Wilkes & McHugh, P.A., Tampa, for Appellee.
Appellants—Fundamental Long Term Care Holdings, LLC, Murray Forman, and Leonard Grunstein—appeal a nonfinal order denying their motion to dismiss proceedings supplementary initiated against them by the estate of Juanita Jackson (the Estate). In denying the motion to dismiss, the trial court rejected appellants' argument that the trial court lacked personal jurisdiction because the appellants never received service of process with an impleader complaint in the proceedings supplementary. We affirm the order on appeal and write to clarify the law on this issue.
After settling with eleven defendants in nursing home litigation, the Estate obtained a default judgment for $110 million against two remaining defendants. The Estate then filed motions to implead sixteen new defendants, including the three appellants in this appeal, in proceedings supplementary under section 56.29, Florida Statutes (2010). The trial court entered orders granting the motions to implead and ordering the new defendants to show cause why they should not be held liable for the judgments. The appellants moved to dismiss, alleging among other things that the trial court lacked personal jurisdiction over them because the Estate failed to serve them with a summons and an impleader complaint. At the conclusion of a hearing, the trial court orally denied the appellants' motion on the basis that The trial court then entered a written order of denial, which the appellants now appeal.
The Estate claims that the nonfinal order may not be appealed based on cases which generally hold that an order impleading a third party in proceedings supplementary is not appealable. See Maryland Cas. Co. v. Century Constr. Corp., 656 So.2d 611 (Fla. 1st DCA 1995); Sverdahl v. Farmers & Merchs. Sav. Bank, 582 So.2d 738 (Fla. 4th DCA 1991); Machado v. Foreign Trade, Inc., 544 So.2d 1061 (Fla. 3d DCA 1989); Warren v. Se. Leisure Sys., Inc., 522 So.2d 979 (Fla. 1st DCA 1988). However, in those cases, the impleaded parties never sought to dismiss the proceedings supplementary on the basis of lack of personal jurisdiction. See Sverdahl, 582 So.2d at 740;Machado, 544 So.2d at 1062. In fact, in Warren, the court noted that the impleaded parties never challenged personal jurisdiction in their motions to dismiss and were therefore “not entitled to review at this stage of the proceedings.” 522 So.2d at 981. Here, the nonfinal order determines personal jurisdiction and we therefore have jurisdiction to review it. SeeFla. R.App. P. 9.130(a)(3)(C)(i); see also Nat'l Lake Devs., Inc. v. Lake Tippecanoe Owners Ass'n, 417 So.2d 655, 657 (Fla.1982) ( ).
On appeal, the appellants argue that proceedings supplementary under section 56.29 are governed by the Florida Rules of Civil Procedure and that the rules require that a newly impleaded defendant be served with a summons and complaint in order for the court to have personal jurisdiction over that newly impleaded defendant. In response, the Estate claims that there is no requirement that a plaintiff file an impleader complaint and serve process with that complaint in order to commence proceedings supplementary against new third parties. The Estate claims that the trial court properly denied the appellants' motion to dismiss because the Estate followed the procedure set forth in section 56.29.
Proceedings supplementary under section 56.29 are special statutory “proceedings subsequent to judgment to aid a judgment creditor in collecting his judgment against the judgment debtor.” Rosenfeld v. TPI Int'l Airways, 630 So.2d 1167, 1169 (Fla. 4th DCA 1993). In order to initiate proceedings supplementary, the statute requires that the judgment creditor have an unsatisfied judgment and file an affidavit averring that the judgment is valid and outstanding. § 56.29(1); B & I Contractors, Inc. v. Mel Re Constr. Mgmt., 66 So.3d 1035, 1037 (Fla. 2d DCA 2011); NTS Fort Lauderdale Office Joint Venture v. Serchay, 710 So.2d 1027, 1028 (Fla. 4th DCA 1998); Office Bldg., LLC v. CastleRock Sec., Inc., No. 10–61582–CIV, 2011 WL 1674963, at *2 . “The statutory procedure was designed to avoid the necessity of the judgment creditor initiating an entirely separate action for a creditor's bill.” Regent Bank v. Woodcox, 636 So.2d 885, 886 (Fla. 4th DCA 1994); see Office Bldg., LLC, 2011 WL 1674963, at *3.
In B & I Contractors, 66 So.3d at 1037, this court explained that section 56.29(1) provides that an affidavit be filed to commence the proceedings but this court noted that motions are commonly used also. This court suggested that once entitlement to the proceedings has been established by this process, third parties not before the court may be brought into the proceedings by impleader. Id. at 1037–38. This court did not discuss the process by which a new defendant should be impleaded.
The appellants correctly argue that the Florida Rules of Civil Procedure apply to proceedings supplementary under section 56.29. See Exceletech, Inc. v. Williams, 597 So.2d 275 (Fla.1992) ( ). But unless the civil rules provide to the contrary, the statutory procedure set forth in section 56.29 controls. SeeFla. R. Civ. P. 1.010 ( ); see also BNP Paribas v. Wynne, 944 So.2d 1004, 1005 (Fla. 4th DCA 2005) ( ); Crocker v. Diland Corp., 593 So.2d 1096, 1098 (Fla. 5th DCA 1992) () .
There is no explicit rule requiring that a plaintiff wishing to initiate proceedings supplementary against a new third party must file an impleader complaint and serve process of that complaint on the new third party. 1 Therefore, we must look to the procedure in section 56.29. Section 56.29 directs a plaintiff to file an affidavit attesting that the plaintiff holds an unsatisfied judgment as well as a motion to require the defendant in execution to appear before the court. § 56.29(1), (2). 2 The trial court shall then enter an order requiring the defendant to appear before the court for an examination concerning the defendant's property. § 56.29(2). The trial court's “order shall be served in a reasonable time before the date of the examination in the manner provided for service of summons or may be served on such defendant or his or her attorney as provided for service of papers in the rules of civil procedure.” § 56.29(3) (emphasis added).
Although the statutory procedure above seems clear, the case law in Florida does not clearly answer the question before us. The appellants rely on several cases in support of their argument that an impleader complaint must be filed with process served on the new defendants in order for the trial court to have personal jurisdiction over the new defendants in proceedings supplementary. In Boats Express, Inc. v. Thackeray, 978 So.2d 206, 210 (Fla. 2d DCA 2008), a plaintiff filed a motion for proceedings supplementary in Florida to collect on a foreign judgment against Boats Express that had become enforceable in Florida. The plaintiff sought to implead the president and sole shareholder of Boats Express, and the trial court allowed him to be impleaded. The plaintiff never filed an amended pleading adding the new defendant, and “nothing was ever served on [the new defendant].” Id. Orders were entered requiring the new defendant to be examined and to present documents and referring to him as a witness, but nothing informed the new defendant that a judgment could be entered against him. A final judgment was entered against him. This court reversed the final judgment against the new defendant because no complaint had ever been filed against him and he was therefore deprived of an opportunity to be heard. Id. at 211. This court noted that “[t]he first actual step taken in a civil action is the filing of a complaint.” Id. ( ).
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