Myrick v. Second Nat. Bank of Clearwater
| Decision Date | 16 July 1976 |
| Docket Number | No. 76--627,76--627 |
| Citation | 335 So.2d 343 |
| Parties | Donald L. MYRICK and Betty L. Myrick, Appellants, v. SECOND NATIONAL BANK OF CLEARWATER, Appellee. |
| Court | Florida District Court of Appeals |
Harold S. Wilson, Clearwater, for appellants.
Emil G. Pratesi of Richards, Nodine, Gilkey, Fite, Meyer & Thompson, Clearwater, for appellee.
In this interlocutory appeal, appellants/defendants Donald L. Myrick and Betty L. Myrick, challenge the trial court's denial of their motion to set aside a levy and cancel the notice of sale of their partnership interest in Port Richey Shopping Village. They contend their rights in the partnership and its property are not subject to levy under Fla.Stat. § 56.061, and can only be reached by the appellee/plaintiff judgment creditor through a charging order under Fla.Stat. § 620.695. We agree and reverse.
Plaintiff Second National Bank of Clearwater sued the defendants in two counts. Count I was an action on four unpaid promissory notes and sought damages from Donald L. Myrick. In Count II, the plaintiff Bank sought damages against Betty L. Myrick as guarantor on those notes. After default the trial court entered a final judgment, as amended on December 4, 1975, for $81,348.24 against the defendants. While an appeal from that judgment was underway, the plaintiff instructed the sheriff to levy on the defendants' interest in the partnership known as Port Richey Shopping Village, a joint venture. On April 19, 1976, the trial court denied the Myricks' motion to set aside the levy and cancel the notice of sale, holding:
'. . . that a partnership interest is property as defined in Florida Statute 56.061, that is subject to levy and sale under execution and that Lott v. Padgett, (153 Fla. 308,) 14 So.2d 669 has not been superseded by the Uniform Partnership Act, and . . . is controlling. . . .'
This appeal ensued.
We think the trial judge's reliance upon Lott v. Padgett was error. Lott, decided by our Supreme Court in 1943, correctly stated the common law that a debtor's interest in a partnership was susceptible to being seized by legal process; however, this doctrine was superseded by adoption of the Uniform Partnership Act (U.P.A.) in 1973. Fla.Stat. § 620.56, et seq. The U.P.A. changed the common law nature of a partnership interest. Under Fla.Stat. § 620.685, a party's interest in the partnership is personal property; I.e., his share of the profits and all surplus. And § 620.575(3) provides that the new Act shall be interpreted and construed as to make uniform the law of those states which have enacted it; therefore, the maxim of statutory construction that statutes in derogation of the common law are to be strictly construed is inapplicable.
Section 620.695(1) of the act provides:
On application to a court having jurisdiction by any judgment creditor of a partner, the court may charge the interest of the debtor partner with payment of the unsatisfied amount of the judgment with interest, and may then or later appoint a receiver of his share of the profits and of any other money due or to become due to him from the partnership, and make all other orders to take the actions that the debtor partner might have made or that the circumstances of the case may require.
Plaintiff argues that § 620.695 merely furnishes a creditor with an additional remedy and that while specific partnership property may be exempted from execution under a claim against the partnership under § 620.68, that nevertheless the U.P.A. does not limit the rights of creditors with respect to a partner's interest in the partnership.
The point is one of first impression in Florida since Florida's adoption of the U.P.A. Section 620.695 is adopted from Section 28 of the Act and it has been held that its purpose is to protect non-debtor partners. Evans v....
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