Fundamental Long Term Care Holdings, LLC v. Estate of Jackson

Decision Date08 February 2013
Docket NumberNo. 2D12–394.,2D12–394.
Citation110 So.3d 6
PartiesFUNDAMENTAL 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.
CourtFlorida 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.

MORRIS, Judge.

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.

I. Background

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 [t]his action has been filed pursuant to section 56.29. It's a postjudgment action. Pursuant to that statute the motion to dismiss will be denied. This court has jurisdiction.” The trial court then entered a written order of denial, which the appellants now appeal.

II. Jurisdiction

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) (holding that ‘the term “jurisdiction of the person” refers to service of process or the applicability of the long[-]arm statute to nonresidents' (quoting and approving Nat'l Lake Devs., Inc. v. Lake Tippecanoe Owners Ass'n, 395 So.2d 592, 593 (Fla. 2d DCA 1981))).

III. Analysis

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 (S.D.Fla. May 3, 2011). “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) (applying the rules and holding that the rules do not require a judgment creditor to be examined before a third party is impleaded in proceedings supplementary and that the rules do not require a petition to implead to be sworn to). 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 (providing that the civil “rules apply to all ... special statutory proceedings in the circuit courts and that [t]he form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary”); see also BNP Paribas v. Wynne, 944 So.2d 1004, 1005 (Fla. 4th DCA 2005) (holding that the special statutory proceeding of a garnishment ‘shall be controlled by the statute itself unless the rules [of civil procedure] provide otherwise’ (alteration in original) (quoting Federated Stores Realty, Inc. v. Burnstein, 392 So.2d 573, 574 (Fla. 4th DCA 1980))); Crocker v. Diland Corp., 593 So.2d 1096, 1098 (Fla. 5th DCA 1992) (“In effect, the supreme court has indicated that if there is some aspect of a special statutory procedure it disapproves, it will say so by rule. Unless it does, the special statutory procedures apply.”).

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. (citing Fla. R. Civ. P. 1.050, which provides that an action is commenced when the complaint is filed).

Boats Express, Inc. suggests...

To continue reading

Request your trial
19 cases
  • Estate of Townsend v. Berman (In re Fundamental Long Term Care, Inc.)
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 18, 2023
    ...and remanded the case for further proceedings. 20 Fundamental Long Term Care Holdings, LLC v. Estate of Jackson ex rel. Jackson-Platts, 110 So.3d 6, 11 (Fla. 2d Dist. Ct. App. 2012).[30] On December 5, 2011, Wilkes looked to the Bankruptcy Court for the Middle District of Florida for assist......
  • Nat'l Auto Serv. Ctrs., Inc. v. F/R 550, LLC
    • United States
    • Florida District Court of Appeals
    • March 30, 2016
    ... ... ; Carol Levin, individually; Durant Holdings, LLC ; and Bedford Investments, LLC, Appellants, ... See Fundamental Long Term Care Holdings, LLC v. JacksonPlatts, ... a statute of repose.); In re Jamuna Real Estate LLC, 365 B.R. 540, 567 (Bankr.E.D.Pa.2007) ... Aristide v. Jackson Mem'l Hosp., 917 So.2d 253, 255 (Fla. 3d DCA ... ...
  • Biel Reo, LLC v. Barefoot Cottages Dev. Co.
    • United States
    • Florida District Court of Appeals
    • December 12, 2014
    ... ... Fundamental Long Term Care Holdings, LLC v. Estate of Jackson ... ...
  • Gen. Elec. Capital Corp. v. Shattuck
    • United States
    • Florida District Court of Appeals
    • February 14, 2014
    ... ... , as Personal Representative of the Estate of Arlene Anne Townsend, Deceased; Trans re, Inc.; and THI Holdings, LLC, Appellees.Ventas, Inc., and Ventas Realty, ... and Trans Healthcare, Inc., Appellees.Fundamental Administrative Services, LLC, and THI of ... and THI Holdings, LLC, Appellees.Fundamental Long Term Care Holdings, LLC; Murray Forman; and ... Estate of Jackson ex rel. Jackson–Platts, 110 So.3d 6, 11 (Fla ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Credit and collections
    • United States
    • James Publishing Practical Law Books Florida Small-Firm Practice Tools - Volume 1-2 Volume 1
    • April 1, 2023
    ...creditor initiating an entirely separate action for a creditor’s bill.” [ Fundamental Long Term Care Holdings, LLC v. Estate of Jackson , 110 So. 3d 6, 8 (Fla. 2d DCA 2013 (citing Regent Bank v. Woodcox , 636 So.2d 885, 886 (Fla. 4th DCA 1994)).]. §5:201 Fraudulent Transfers The proceedings......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT