NEW YORK STATE COM'R OF TAXATION v. Friona, 4D03-4023.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: MAY, J.
• Citation: 902 So.2d 864
• Parties: NEW YORK STATE COMMISSIONER OF TAXATION AND FINANCE, Appellant, v. Phillip A. FRIONA, Appellee.
• Docket Number: No. 4D03-4023.,4D03-4023.
• Decision Date: 11 May 2005

902 So.2d 864

NEW YORK STATE COMMISSIONER OF TAXATION AND FINANCE, Appellant,
v.
Phillip A. FRIONA, Appellee

No. 4D03-4023.

District Court of Appeal of Florida, Fourth District.

May 11, 2005.

902 So.2d 865

Mark W. Rickard of Jacobson, Sobo & Moselle, Plantation, for appellant

Stephen Rakusin of Rakusin & Plotka, P.A., Fort Lauderdale, for appellee.

ON MOTION FOR REHEARING AND REHEARING EN BANC

MAY, J.

We grant the appellee's motion for rehearing, withdraw the previously issued opinion, and substitute the following. We deny the motion for rehearing en banc.

New York State Commissioner of Taxation and Finance (NYS) appeals a summary judgment in favor of Phillip Friona. The court found the statute of limitations barred NYS from domesticating a foreign judgment. We disagree and reverse.

The salient facts are not in dispute. On July 13, 1993, NYS obtained a tax warrant against Friona in the amount of $658,785.28.¹ Subsequent to the judgment being recorded in New York, Friona moved to Broward County, Florida, and has lived there since.

Approximately nine years after issuance of the tax warrant, NYS sought to domesticate the New York judgment in Florida by filing a transcript of the final judgment in Broward County, pursuant to the Florida Enforcement of Foreign Judgments Act (FEFJA).² Upon receiving notice of the attempt to domesticate the judgment, Friona objected and filed a complaint seeking to vacate and dismiss the domestication. Friona argued Florida's applicable statute of limitations expired. He also argued the "transcript" of the final judgment was insufficient, under Florida law, to domesticate a foreign judgment.

NYS moved to dismiss Friona's complaint. The court deferred ruling to consider whether "a certified copy of a New York Transcript of Judgment is the same or different than a certified copy of a New York Judgment." NYS filed a renewed motion to dismiss and provided the court with a memorandum of law on the issue. Friona then filed a motion for summary judgment.

The court granted the motion for summary judgment and found:

1. [A] New York Transcript of Judgment meets the requirements of

902 So.2d 866

§ 55.503 requiring that a certified copy of a Final Judgment be recorded, and;

2. The Statute of Limitations for enforcement actions on the NYS judgment in this cause is five (5) years....

3. The Statute of Limitations has run on the enforcement of the judgment in Florida....

We agree the New York Transcript meets the requirements of section 55.503, Florida Statutes (2002).³ We disagree, however, with the court's application of the five-year statute of limitations to the "domestication" of the foreign judgment.

Section 95.11, Florida Statutes (2002), provides a twenty-year limitation period when a party files an "action on a judgment or decree of a court of record in this state," and a five-year period when the action concerns a judgment or decree "not of record, of this state or any court of the United States...." § 95.11(1) & (2)(a), Fla. Stat. (2002) (emphasis added). If the act of "domestication" is an "action on a judgment," this section applies. However, this court has previously held that section 95.11, Florida Statutes does not apply. See Muka v. Horizon Fin. Corp., 766...