Sephus v. Gozelski
| Decision Date | 29 April 1987 |
| Docket Number | No. 83-2606-Civ.,83-2606-Civ. |
| Citation | 670 F. Supp. 1552 |
| Parties | Bernard SEPHUS and George LaFleche, Plaintiffs, v. Peter GOZELSKI, Gozelski Farms; Elijah Hunter; Louise Hunter; and Johnnie Raider, a/k/a Johnnie Prather, Defendants. and Elijah HUNTER and Louis Hunter, Third Party Plaintiffs, v. Robert M. HUSTEAD, Third Party Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Edna E. Canino, Miami, Fla., for third party plaintiffs.
Robert M. Hustead, Homestead, Fla., for third party defendant.
THIS CAUSE was heard in a non-jury trial on April 2 and 3, 1987. The Court received exhibits, heard testimony from both expert and lay witnesses, and the arguments of respective counsel, and having carefully considered all of the evidence, pertinent portions of the record, and the applicable law, the Court enters herein its Memorandum Opinion Containing Findings of Fact and Conclusions of Law.
This is a third party action challenging the processes by which Third Party Plaintiffs' property was sold to satisfy a registered foreign judgment. Jurisdiction of this cause is based upon 28 United States Code Section 1963.
All Findings of Fact Contained herein are adopted as Conclusions of Law as applicable and, alternatively, all Conclusions of Law contained herein are adopted by the Court as Findings of Fact as applicable.
1. On October 19, 1983, the Plaintiffs, Bernard Sephus and George LaFleche, by and through their attorney, Robert M. Hustead, and pursuant to 28 U.S.C. § 1963, registered with this Court, a civil money final judgment issued by the United States District Court for the Western District of New York; Case No. 81-814B (C), against Third Party Plaintiffs, Elijah Hunter and Louise Hunter, in the amount of $6,000.00. Said New York judgment was certified before this Court as having been issued on October 28, 1982, and having become final and unappealable in the New York court.
2. On October 19, 1983, this Court issued a Writ of Execution against the Hunters for the amount of $6,000.00 ordering them to pay and satisfy the civil money judgment in favor of the Plaintiffs, Sephus and LaFleche. In connection therewith, Plaintiffs filed Marshal's Form 285 instructing the Marshal to execute "Property" by way of a Marshal's sale. There is no indication on Form 285 of the location of the "Property" to be executed upon and no specific instructions to the Marshal of any kind.
3. A Notice of U.S. Marshal's Sale was published in the Miami Review in the issues of December 20, 27, 1983 and January 3, 10, 1984 giving notice that real estate described as Lot 10, Block 5 of Biscayne River Gardens according to the Plat thereof, recorded in Plat Book 49, Page 53, Public Records of Dade County, Florida would be sold at public auction to the highest and best bidder on January 11, 1984.
4. The property described in the Notice is a lot belonging to Third Party Plaintiffs Louise and Elijah Hunter as evidenced by the Warranty Deed, admitted into evidence, dated August 30, 1950 and duly recorded at Page 557 of Book 3329 of the Official Records of Dade County, Florida. The street address of the subject property is 2471 N.W. 152 Terrace, Opa Locka, Florida.
5. As the U.S. Marshal's return of the writ of execution indicates, the subject property was sold on January 11, 1984 to Robert M. Hustead as the "best and highest bidder for $20.00." There is no indication on the return that Mr. Hustead was acting for or on behalf of his clients Sephus and LaFleche at the time of the sale.
6. Thereafter, on March 24, 1984, pursuant to the execution sale, the U.S. Marshal issued a Marshal's Deed of the subject property to and in the name of Robert M. Hustead.
7. Aside from the Notice by Publication, there was no attempt to notify the Hunters of the execution sale.
8. The Hunters were never personally notified of the execution sale in any way.
9. Situated on the subject property is a house in which the Hunters resided from 1950 to 1983.
10. The Hunters are elderly migrant farm workers who must seasonally travel north to follow the crops as they mature.
11. Although the Hunters reside away from their house in Opa Locka for approximately half the year, they always return to Opa Locka and consider this home to be their permanent residence as evidenced by the following:
(a) Both Mr. and Mrs. Hunter have Florida driver's licenses indicating the address 2471 N.W. 152 Terrace, Opa Locka, Florida;
(b) Each year before departing for their annual migration, the Hunters secure the house, drape the furniture, spread moth balls on the carpets and arrange for yard servicing;
(c) The Hunters annually filed for homestead exemption for the subject property for tax purposes;
(d) The Hunters owned an automobile in 1983 which was registered in Dade County;
(e) The Hunters maintained a bank account in Opa Locka, Florida;
(f) The Hunters kept their personal belongings in the house at Opa Locka, Florida.
12. Despite their frequent trips, there is no evidence that the Hunters ever intended to abandon the subject property.
13. While on their trips north, the Hunters arranged to have their mail forwarded to them.
14. Both Mr. and Mrs. Hunter have worked as migrant farm workers during their marriage. They are mutually dependent for support and are childless.
15. Subsequent to receipt of the Marshal's deed, Robert Hustead filed an ejectment action in the Circuit Court in and for Dade County, Florida, against the Hunters; Case No. 84-16743 CA 27.
16. As a consequence of that action, a Final Default Judgment in Ejectment was entered on July 12, 1984.
17. The parties dispute whether the Hunters were served with process of that ejectment action. Mr. Hunter has filed the Affidavits of a process server indicating that Mr. and Mrs. Hunter were served by individually serving Mrs. Hunter on May 11, 1984. Both Mr. and Mrs. Hunter, on the other hand, testified that they were in Bradenton, Florida, on May 11, 1984 and were never personally served with process of the ejectment action. Taking all testimony and evidence into consideration, the Court views the Hunters as credible witnesses and resolves this factual dispute in favor of the Hunters.
18. As a result of the ejectment action, the Hunters' personal property was removed from their house while they were out of town.
19. Since that time, Mr. Hustead has been managing the subject property as rental property for a period of approximately 18 months, has been receiving rental income during that period, and has made reasonable expenditures to prevent deterioration of the property.
20. Mr. Hustead has not satisfied the judgment upon which execution was based.
The Court's jurisdiction over this matter is based upon 28 U.S.C. § 1963 which permits registration in this district of any judgment entered in any other district court of the United States.1 "A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner." The New York judgment, then, may be enforced by this Court by the same procedures as a judgment entered in this district.
In accordance with Federal Rule of Civil Procedure 69, process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. That Rule further provides:
The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.
It is clear from Rule 69 that Florida law governs the question of whether the proper procedures were followed on execution, there being no federal statute applicable to the contrary. Juneau Spruce Corp. v. International Longshoremen's & Warehousemen's Union, 128 F.Supp. 697 (D.C. Hawaii 1955).2
Turning to Florida law, Florida Statutes Section 56.21 (1982) governed the procedures to be followed for execution sales at the time of the events herein. That statute provides:
Notice of all sales under execution shall be given by advertisement once each week for 4 successive weeks in a newspaper published in the county in which the sale is to take place.... On or before the date of the first publication or posting of the notice of sale, a copy of the notice of sale shall be furnished by certified mail to the attorney of record of the judgment debtor, or to the judgment debtor at the judgment debtor's last known address if the judgment debtor does not have an attorney of record.
(Emphasis added). The provision for mailing a copy of the notice of sale to the judgment debtor as highlighted was added to Florida's statute in response to the Florida Supreme Court's decision in Quay Development, Inc. v. Elegante Building Corp., 392 So.2d 901 (Fla.1981) in which the Florida Supreme Court held that notice of execution sale of property by mere publication failed to give adequate notice to the owner of the property and constituted a deprivation of property without due process of law. Without actual notice of the sale, the Quay Court reasoned, the debtor was deprived of the opportunity to raise objections to the proceeding, pay the debt prior to the sale or, at the very least, to attend the sale and bid on the property himself. Id. at 903-04. The Court concluded that "the constitutional infirmity could have been remedied by the simple mailing of a letter." Id. (citations omitted).
So, too, the present dispute could have been avoided by the simple mailing of a letter. Mr. Hustead, attorney for Sephus and LaFleche and Third Party Defendant herein, testified at trial that he believed ...
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