BONIZO PROPERTIES N.V., BLUELIGHT INVESTMENTS N.V., AND HANWOOD INVESTMENTS, N.V., ALL FOREIGN CORPORATIONS, APPELLANTS,
v.
GEORGE R. SCHROEDER, APPELLEE
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In this appeal from post-judgment orders, foreign corporations challenged the trial court's denial of their motion to vacate a final judgment and refusal to reject an order compelling turnover of assets held outside the United States. The appellate court affirmed both orders and awarded attorney's fees to the judgment creditor.
The trial court did not abuse its discretion in denying the motion to vacate; the order compelling turnover of assets is moot due to the supersedeas bond, but would be affirmed if reached on the merits. Attorney's fees are awarded to the judgment creditor under Florida Statutes section 56.29(11).
[1] A trial court's discretion in ruling on a motion to vacate a judgment under Rule 1.540(b) is broad, and reversal requires a showing of gross abuse of discretion.
[2] An order compelling the turnover of assets for execution is rendered moot by the posting of a cash supersedeas bond pending appeal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“it is the duty of the trial court, not the appellate courts to make the determination of whether or not the facts constitute excusable neglect, mistake, or inadvertence sufficient to excuse compliance with the rules. The discretion reposed in the trial judge by Fla.R.Civ.P. 1.540 is of the broadest scope and in order to reverse a judge's ruling thereunder, there must be a showing of a gross abuse of discretion.”
Establishes the standard of review for Rule 1.540(b) motions, requiring a showing of gross abuse of discretion for reversal.
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Join FLexlaw to unlock all legal intelligenceThe appellants, foreign corporations, obtained a final judgment against them. They moved to vacate the judgment under Florida Rule of Civil Procedure …
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DOWNEY, Judge.
This is a timely consolidated appeal from two non-final, post-judgment orders: 1) denying a 1.540 motion to vacate the final judgment, and 2) compelling the turnover of assets for execution held by the appellants outside the United States.
Appellants’ first point on appeal is that the trial court abused its discretion in denying appellants’ motion to vacate the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(1). However, our consideration of the record and briefs convinces us that there was no gross abuse of discretion demonstrated; the trial court’s conclusion was fully supported by the evidence. In all events, in considering this point we have applied the standard of re view set forth in Schwab & Co. v. Breezy Bay, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978), where the court stated that, in considering a 1.540(b) motion:
it is the duty of the trial court, not the appellate courts to make the determination of whether or not the facts constitute excusable neglect, mistake, or inadvertence sufficient to excuse compliance with the rules. The discretion reposed in the trial judge by Fla.R.Civ.P. 1.540 is of the broadest scope and in order to reverse a judge’s ruling thereunder, there must be a showing of a gross abuse of discretion.
Id. at 118 (citation omitted).
The second point presented suggests the trial court erred in ordering appellants to turn over assets (promissory notes and a mortgage) subject to writ of execution, which assets were located outside the United States. We need not treat this point because the appellants have filed a cash supersedeas bond pending appeal which moots this question. Should appellant prevail, the judgment would be reversed; if the appellee is successful, the bond will satisfy the judgment. In any event, if required to rule thereon, we would affirm the order compelling the turnover of assets for execution.
Both parties have requested attorney’s fees on appeal, pursuant to section 56.-29(11), Florida Statutes (1987). Under that section, in supplementary proceedings, appellee is entitled to attorney’s fees to be assessed against the defendants (appellants here). Accordingly, we affirm the orders appealed from and grant appellee’s application for attorney’s fees on appeal and remand the assessment thereof to the trial court.
HERSEY, C.J., and DELL, J., concur.
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Rosenfeld v. TPI Int'l Airways, 630 So. 2d 1167 (Fla. 4th DCA 1993)…early references the judgment debtor. Thus, under rules of statutory construction, we fail to find authority for allowing attorney’s fees otherwise than against the judgment debtor. Contrary to appellee’s contention, Bonizo Properties v. Schroeder, 528 So. 2d 1304 (Fla. 4th DCA 1988), does not support a holding that attorney’s fees may be assessed against an impled defendant. The award of appellate attorney’s fees was granted against the “defendants.” However, the opinion does not indicate whether the defenda…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Schwab & Co., Inc. v. Breezy BAY, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978)