LAHAV FLOORING AND FIXTURES, INC., ET AL., APPELLANTS,
v.
ALAN E. WEINSTEIN, ET AL., APPELLEES

Fla. 3d DCA | 1991-12-17
No. 91-918
Before BARKDULL, NESBITT, and GODERICH, JJ.
590 So. 2d 1055 Florida District Court of Appeal, Third District (1991) Positive Treatment
Cited by 4 cases

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Holding

The court held that supplementary proceedings cannot be initiated without a valid, unsatisfied writ of execution held by the sheriff.


Headnotes

[1] A non-final order granting supplementary proceedings entered after final judgment is reviewable under Florida Rule of Appellate Procedure 9.130(a)(4).

[2] Florida Statutes section 56.29 requires the filing of an affidavit showing a valid unsatisfied writ of execution on any assets prior to instituting supplementary proceedi…

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Facts & Procedural History

After a corporation was found liable for defective work, the plaintiff discovered the corporation was dissolved and its successor was also dissolved. …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant seeks reversal of an order granting supplementary proceedings. We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(4) to review this non-final order entered after final judgment. See Mogul v. Fodiman, 406 So. 2d 1225 (Fla. 5th DCA 1981). We reverse upon the following brief analysis.

Appellants Lahav Flooring & Fixtures, Inc., and Joseph Lahav were sued by appel-lees, Alan and Patti Weinstein, who alleged that both the corporate defendant and Mr. Lahav were liable to appellees as a result of defective work in the installation of a tile floor. After trial, judgment was rendered finding only the corporation liable. Immediately thereafter, the Weinsteins learned that Lahav had dissolved the corporate defendant and created a new company, “Miles of Tiles.” Despite a notice of deposition in aid of execution, Lahav failed to provide any documents or respond to questions posed concerning the dissolution of his company. The Weinsteins filed for contempt and sanctions. The trial court found Lahav in contempt, awarded attorney’s fees and costs to the Weinsteins, and ordered Lahav Flooring’s “successor and/or successor-in-interest, ‘Miles of Tiles’,” to pay these sanctions. Thereafter, the Wein-steins learned that Miles of Tiles was dissolved and was now doing business as “Flooring Options by Lahav.” Pursuant to the trial court’s order granting the Wein-steins’ motion for supplementary proceedings, the Weinsteins were authorized to implead, as third party, the above referenced successor corporation.

Section 56.29, Florida Statutes (1989), requires the filing of an affidavit showing a valid unsatisfied writ of execution on any assets prior to instituting supplementary proceedings. Standard Property Inv. Trust v. Luskin, 585 So. 2d 1099 (Fla. 4th DCA 1991); Continental Cigar Corp. v. Edelman & Co., 397 So. 2d 957 (Fla.3d DCA), review denied, 411 So. 2d 381 (Fla.1981).

The requirement that the sheriff hold the writ has a sound purpose behind it. The recording of judgment alone does not automatically create a lien on a debt-or’s personal property. The judgment creditor’s lien attaches to personal property and priority is established at the time the writ of execution is delivered to the sheriff in the county where the personal property is located. Jacksonville Bulls Football, Ltd. v. Blatt, 535 So. 2d 626 (Fla. 3d DCA 1988). Thus, the exhaustion of remedies in supplemental proceedings prevents a judgment creditor from gaining an advantage over judgment creditors who have priority in execution over and against a defendant’s property.

The instant order was predicated upon the filing of only an affidavit by Mr. Weinstein stating that attempts to collect on the judgment issued in his favor had failed. The sheriff did not hold an unreturned, unsatisfied writ of execution. This action was thus not sufficient and clearly did not comply with section 56.29.

Accordingly, the trial court’s order is reversed and the cause remanded for further proceedings.


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Citator

Cited By

  • Naghtin v. Gadis Jones, 680 So. 2d 573 (Fla. 1st DCA 1996)
    …Florida Rule of [*576] Appellate Procedure 9.130(a)(4). See Maryland Cas. Co. v. Century Const. Corp., 656 So. 2d 611 (Fla. 1st DCA 1995); but see Mogul v. Fodiman, 406 So. 2d 1225 (Fla. 5th DCA 1981); Lahav Flooring and Fixtures, Inc. v. Weinstein, 590 So. 2d 1055 (Fla. 3d DCA 1991). Nor is this a case where our jurisdiction has been invoked to enforce a mandate. Cf. Stuart v. Hertz Corp., 381 So. 2d 1161 (Fla. 4th DCA 1980); Department of Transp. v. Burnette, 399 So. 2d 51 (Fla. 1st DCA), review denied, 408…
  • …a “legal or equitable interest” in the subject property. Insurance proceeds are personal property which judgment creditors cannot reach or claim an interest in until after resorting to judicial process. See La-hav Flooring and Fixtures v. Weinstein, 590 So. 2d 1055 (Fla. 3d DCA 1991) (recording of judgment alone does not automatically create a lien on debtor’s personal property; judgment creditor’s lien attaches to personal property and priority is established at the time that the writ of execution is delivere…

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