Rosenfeld v. TPI Intern. Airways, 92-2984

• Decision Date: 29 December 1993
• Docket Number: No. 92-2984,92-2984
• Citation: 630 So.2d 1167
• Parties: 19 Fla. L. Weekly D46 Alexander M. ROSENFELD, Appellant, v. TPI INTERNATIONAL AIRWAYS, Appellee.
• Court: Florida District Court of Appeals

Page 1167

630 So.2d 1167

19 Fla. L. Weekly D46

Alexander M. ROSENFELD, Appellant, v. TPI INTERNATIONAL AIRWAYS, Appellee.

No. 92-2984.

District Court of Appeal of Florida Fourth District.

Dec. 29, 1993.

Rehearing and Rehearing En Banc Denied Feb. 22, 1994.

Allan M. Stein, Rosenfeld, Stein & Sugerman, North Miami Beach, for appellant.

Richard F. Hussey, Hussey & Hussey, Fort Lauderdale, for appellee.

DOWNEY, JAMES C., Senior Judge.

Appellee, TPI International Airways, Inc., (TPI obtained a judgment against Robert P. Fleming in the amount of $354,003.92. Thereafter, TPI filed a complaint against Fleming, appellant, Alexander M. Rosenfeld, and others seeking supplementary proceedings and to set aside alleged fraudulent conveyances pursuant to chapter 726, Florida Statutes (1991. The complaint alleged that TPI had made numerous efforts to satisfy its judgment without success. Rosenfeld, the party bringing this appeal, filed an answer and affirmative defenses. Simultaneously with the filing of the complaint, TPI sought a temporary injunction to prohibit Fleming from transferring any of his assets. The trial court subsequently ruled in favor of Rosenfeld and TPI appealed. This court in TPI International Airways, Inc. v. Rosenfeld, 573 So.2d 963 (Fla. 4th DCA 1991, held that no error was demonstrated regarding the discovery questions raised and that TPI was not entitled to judgment as a matter of law on the alleged fraudulent transfer, as claimed by TPI. The court then instructed that on remand, any further proceedings should be conducted in accordance with section 56.29, Florida Statutes (1987, providing for supplementary proceedings.

After remand, the matter was tried by the court without a jury. During the trial, Rosenfeld moved for an involuntary dismissal on the ground that the court lacked subject matter jurisdiction. The thrust of his argument was that the provisions of section 56.29, Florida Statutes (1987, requiring the plaintiff in execution to file an affidavit stating that the sheriff holds an unsatisfied writ of execution which is valid and outstanding, are jurisdictional and cannot be waived. Those allegations appear no where in the complaint or otherwise. Nevertheless, the trial judge held that said allegations were not jurisdictional but that the filing of the motion at the end of plaintiff's case was untimely and thus the statutory requirements were waived. The trial court pointed out that Rosenfeld was afforded his full due process rights in that plaintiff filed a complaint against him, he was served with process, filed an answer and affirmative defenses, and the issues were tried. In a detailed final judgment, the trial court found various conveyances and other transactions occurring between Fleming and Rosenfeld were fraudulent and constituted attempts to hinder, delay and defraud Fleming's creditors. The judgment held that on this record, it would have been futile for TPI to seek issuance of a writ of execution and that the statutory requirements for obtaining execution were not jurisdictional. Rather, they were conditions precedent and could be waived; and that Rosenfeld did, in fact, waive said requirements by failing to timely assert them. The judgment further held TPI was entitled to reach several of Fleming's assets held by Rosenfeld such as a 1989 Jaguar and $39,000 held in Rosenfeld's trust account. Finally, the court awarded TPI its costs and attorney's fees against Rosenfeld and retained jurisdiction to fix the amount thereof at a later date.

Rosenfeld's first appellate point suggests the trial court erred in not granting his motion for involuntary dismissal because the trial court lacked subject matter jurisdiction of the cause. We hold this contention to be unfounded. This cause proceeded in supplementary proceedings pursuant to TPI's complaint and the mandate of this court in the prior appeal. Section 56.29, Florida Statutes (1989, provides that a judgment creditor may avail himself of supplementary proceedings by filing an affidavit stating that any sheriff holds an unsatisfied writ of execution which is valid and outstanding. While TPI filed an original complaint herein based on chapter 726, Florida Statutes, regarding fraudulent conveyances, and section 56.29, Florida Statutes (1987, regarding supplementary proceedings naming...