SCG Travel, Inc. v. Westminster Financial Corp., 91-1144

• Decision Date: 03 July 1991
• Docket Number: No. 91-1144,91-1144
• Citation: 583 So.2d 723
• Parties: SCG TRAVEL, INC., a New Jersey Corporation, Petitioner, v. WESTMINSTER FINANCIAL CORPORATION, a Delaware Corporation, Harry Schreiber, and Mark Izydore, Respondents. 583 So.2d 723, 16 Fla. L. Week. D1736
• Court: Florida District Court of Appeals

Page 723

583 So.2d 723

SCG TRAVEL, INC., a New Jersey Corporation, Petitioner, v. WESTMINSTER FINANCIAL CORPORATION, a Delaware Corporation Harry Schreiber, and Mark Izydore, Respondents.

No. 91-1144.

583 So.2d 723, 16 Fla. L. Week. D1736

District Court of Appeal of Florida,

Fourth District.

July 3, 1991.

Rehearing, Rehearing En Banc and Certification Denied

Aug. 6, 1991.

Andrew J. McMahon, of Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A., West Palm Beach, for petitioner.

William J. Barnes, of Gilbride, Heller & Brown, P.A., Miami, for respondents.

FARMER, Judge.

Petitioner recovered default judgments against respondents in a New Jersey court for several million dollars. The defaults apparently resulted because respondents failed to appear at a pre-trial conference and failed to comply with a discovery order. ¹ Petitioner then recorded the New Jersey judgments in Palm Beach county under section 55.503, Florida Statutes (1989), whereupon respondents filed actions in the circuit court here under section 55.509, Florida Statutes (1989), contesting the validity of the New Jersey judgments under the United States Constitution. These actions were accompanied by the notices of lis pendens required by section 55.509(1).

Respondents then moved to stay the enforcement of the New Jersey judgments in Florida, and any judgment liens resulting from the recordation here, without the security of bonds. They argued that section 55.509(1) entitled them to a stay without bond because they had furnished the notices of lis pendens. Petitioner in turn moved to require appropriate bonds as a condition of any stay. It contended that mere notices of lis pendens did not constitute compliance with section 48.23(3), Florida Statutes (1989), and subsection (2) of section 55.509 which, it argued, controlled the issue. After more than one hearing on the issues, the trial judge agreed with respondents and refused to require any bonds. Petitioner then timely filed this petition for a writ of certiorari.

As a preliminary matter, we must consider whether we have jurisdiction to review the kind of orders involved here. The parties disagree whether certiorari is proper. Of course it is a proper vehicle to review a denial of a motion to discharge a notice of lis pendens. Tortu v. Tortu, 430 So.2d 531 (Fla. 4th DCA 1983). And, we note, a judgment creditor could certainly get expedited review--by a simple motion--of a denial of a bond after the judgment debtor appealed the judgment to a Florida appellate court. Rule 9.310(f), Florida Rules of Appellate Procedure.

The central question to certiorari review is whether the judgment creditor can have effective review of the issue after a final judgment or order is entered in the proceeding and plenary review is taken. In this case, we do not see how the creditor could have meaningful review of an order denying a bond in a proceeding under section 55.509 if consideration had to await the final judgment. Under the statutory scheme here, the debtor gets a stay merely by filing the section 55.509 contest of the foreign judgment and notice of lis pendens but, without a bond, is free meanwhile to dispose of Florida assets.

At the same time, the judgment creditor is deprived of any security for the judgment debt while the validity contest proceeds. We can think of no possible resolution after a final appeal that would restore the creditor to the position he enjoyed when he recorded his foreign judgment. Indeed, by imposing a stay without any bond, yet refusing any review of the bond issue until after the validity contest has labored to a final conclusion, we should thereby eviscerate the very reasons for recording the foreign judgment here in the first place. It thus seems to us that certiorari is indispensable in this situation.

Turning now to the real issue dividing the parties, we see it as one of statutory construction. Hence we first look at the text of the statute itself:

55.509 Stay of enforcement of foreign judgment.--

(1) If, within 30 days after the date the foreign judgment is recorded, the judgment debtor files an action contesting the jurisdiction of the court which entered the foreign judgment or the validity of the foreign judgment and records a lis pendens directed toward the foreign judgment, the court shall stay enforcement of the foreign judgment and the judgment lien upon the filing of the action by the judgment debtor.

(2) If the judgment debtor shows the circuit or county court any ground upon which enforcement of a judgment of any circuit or county court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.

As we see it, this case is concerned with the interplay of these two subsections. ²

Section 55.509 was first adopted in 1984. See Chapter 84-5, Laws of Florida. It is an obvious adaptation of section 4 of the Uniform Enforcement of Foreign Judgments Act (1964), 13 U.L.A. 175. The uniform provision provides:

Sec. 4. Stay

(a) If the judgment debtor shows the [court] that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which rendered.

(b) If the judgment debtor shows the [court] any ground upon which enforcement of a judgment of any [court] of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.

We must decide what the differences between the Florida version and the uniform act tell us about the legislature's intent in adopting the changed version.

From a comparison of the uniform act and the Florida version, we think it is all but incontestable that our legislature intended to adopt the uniform act with slight variations in text but not in purpose. This is made manifest to us by section 55.502(3), Florida Statutes (1989), which says: "This act shall be interpreted and construed to effectuate its general purpose to make uniform the law with respect to the subject of the act among the states enacting it."

The enforcement of foreign judgments is not a matter of mere grace. It springs from the Full Faith and Credit Clause, Art. IV, section 1, U.S. Const., and its implementing statute, 28 U.S.C. section 1738, which require every state to give the same effect to judicial proceedings as the rendering state gives them....