CONTINENTAL CIGAR CORPORATION, APPELLANT,
v.
EDELMAN & COMPANY, INC. AND DOS GONZALEZ CIGARS, INC., APPELLEES
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Continental Cigar Corporation appealed a summary judgment in supplementary execution proceedings that determined the trademark "Dos Gonzalez" and logo were assets of Dos Gonzalez Cigars, Inc., not Continental Cigar. The court affirmed, holding that trademarks are amenable to execution and that supplementary proceedings may be instituted based on a valid unsatisfied writ of execution.
Trademarks and logos are amenable to execution and may be the subject of supplementary proceedings based on a valid unsatisfied execution. Registration with the Secretary of State does not establish ownership superior to evidence of actual ownership by the judgment debtor, particularly where the judgment debtor's representative admitted ownership.
[1] Supplementary proceedings to execution under section 56.29, Florida Statutes, may be instituted upon the filing of an affidavit demonstrating a valid, unsatisfied writ of…
[2] A trademark and logo can be considered assets amenable to execution in supplementary proceedings.
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Join FLexlaw to unlock all legal intelligence“It is quite clear that section 56.29 requires only the filing of an affidavit showing a valid unsatisfied writ of execution on any assets prior to instituting supplementary proceedings.”
Establishes that supplementary proceedings do not require the assets themselves to be amenable to execution, only proof of an unsatisfied execution.
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Join FLexlaw to unlock all legal intelligenceEdelman & Company held a judgment for $9,907.11 plus costs against Dos Gonzalez Cigars, an insolvent corporation. In supplementary proceedings to trac…
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BASKIN, Judge.
Continental Cigar Corporation appeals1 a summary judgment entered in proceedings supplementary to execution pursuant to section 56.29, Florida Statutes (1977). Edelman and Company, Inc., holder of a judgment in the amount of $9,907.11 and costs of $57.50 against Dos Gonzalez Cigars, Inc., an insolvent corporation, sought to trace assets belonging to Dos Gonzalez Cigars.
The trial court order Dos Gonzalez Cigars to be examined concerning its trademark “Dos Gonzalez” and logo. Dos Gonzalez Cigars was then order to appear before a master who decided that the trademark and logo were assets belonging to Dos Gonzalez Cigars. The court issued a summons and rule to show cause why the trademark and logo should not be declared assets of Dos Gonzalez Cigars. Following a hearing, the court entered its Final Summary Judgment deciding that the trademark “Dos Gonzalez” and logo were assets of Dos Gonzalez Cigars, Inc. and not the property or assets of Continental Cigar Corporation which claimed ownership. The court order Continental Cigar Corporation to execute documents necessary to quitclaim its right to the trademark and logo to Dos Gonzalez Cigars, Inc. and retained jurisdiction to appoint a receiver for Dos Gonzalez Cigars, Inc. In addition, the court enjoined Continental Cigar Corporation from further use of the trademark and logo. We affirm. Appellant argues that the trademark and logo are not amenable to execution and therefore cannot be the subject of an unsatisfied execution without which, it contends, supplementary proceedings may not be instituted. Appellant has misinterpreted section 56.29(1), Florida Statutes (1977). It states:
When any sheriff holds an unsatisfied execution, the plaintiff in execution may file an affidavit so stating and that the execution is valid and outstanding and thereupon is entitled to the proceedings supplementary to execution.
It is quite clear that section 56.29 requires only the filing of an affidavit showing a valid unsatisfied writ of execution on any assets prior to instituting supplementary proceedings. That procedure was followed in this case. Judges have both the power and the duty to bring in third parties when relief against them may be warranted. General Guaranty Insurance Co. of Florida v. DaCosta, 190 So. 2d 211 (Fla. 3d DCA 1966), rehearing granted on other grounds, 226 So. 2d 104 (Fla.1969). Relief against impleaded third parties may encompass a chose in action. Puzzo v. Ray, 386 So. 2d 49 (Fla. 4th DCA 1980); General Guaranty Insurance Co. of Florida v. DaCosta, supra.
Appellant also argues that its ownership of the trademark and logo were established by the fact that it registered them with the Secretary of State. We disagree. We find that the court correctly ruled that no genuine issue of material fact existed and that the assets were shown by the testimony, which includes an admission by Dos Gonzalez’ representative, Carmelo Gonzalez, to belong to Dos Gonzalez Cigars. Appellant’s remaining contentions lack merit.
Affirmed.
. Appellant filed both an interlocutory and plenary appeal which have been consolidated.
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Amjad Munim, M.D., P.A. v. George Azar, M.D., 648 So. 2d 145 (Fla. 4th DCA 1994)…go of the predecessor corporation. Allied, 688 F.Supp. at 1519 and cases cited therein. Summary judgment is appropriate in proceedings supplementary where no genuine issue of material fact exists. See Continental Cigar Corp. v. Edelman & Co., Inc., 397 So. 2d 957 (Fla. 3d DCA), rev. denied, 411 So. 2d 381 (Fla.1981). The uncontroverted material facts upon which the trial court properly relied established the following. Pulmonary Associates was incorporated twelve days after the entry of the final judgment ag…
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Standard Prop. Inv. Tr., Inc. v. Luskin, 585 So. 2d 1099 (Fla. 4th DCA 1991)…on preamendment decisions, failed to note the 1967 statutory change; furthermore, that the issue presented here was not an issue in those cases, accounting for the oversight. In addition, appellees rely upon Continental Cigar Corp. v. Edelman & Co., 397 So. 2d 957 (Fla. 3d DCA 1981); Trawick, Florida Practice and Procedure, § 27-9 (1990); and 2 Rakusin, Florida Creditors’ Rights Manual, Ch. 8, p. 31 (D & S 1988). Furthermore, appellees submit that the statute is not jurisdictional and that appellees made subs…1 / 2
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Arellano v. Lisette Arellano Bisson and Lower Randolph J. Bisson, 847 So. 2d 998 (Fla. 3d DCA 2003)…nst the appellees. Impleader would merely subject her to an examination regarding her assets and would provide her with notice that appellees’ claim against her was subject to supplementary proceedings. See Cont'l Cigar Corp. v. Edelman & Co., Inc., 397 So. 2d 957 (Fla. 3d DCA 1981) (judges have both power and duty to bring in third parties when relief against them may be warranted). Accordingly, I would reverse the trial court’s order and grant the appellant’s motions for proceeding supplementary to execut…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- DaCOSTA v. Gen. Guar. Ins. Co. OF Fla., 226 So. 2d 104 (Fla. 1969)
- Gen. Guar. Ins. Co. of Fla. v. DaCOSTA, 190 So. 2d 211 (Fla. 3d DCA 1966)
- Puzzo v. RAY, 386 So. 2d 49 (Fla. 4th DCA 1980)