TERESA A. PATTERSON, APPELLANT,
v.
ROGER VENNE, APPELLEE
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Teresa Patterson appeals an order in supplementary proceedings that impleaded her as a defendant and required her personal appearance in Dade County despite her residence in Clay County. The court affirmed the venue determination but quashed the requirement for Patterson's personal appearance in Dade County.
Venue for supplementary proceedings is proper in the county where the underlying action was tried. However, an impleaded defendant who is a resident of another county and is not seeking affirmative relief cannot be compelled to appear personally in the original venue county; discovery may proceed in the defendant's home county pursuant to the Florida Rules of Civil Procedure.
[1] Proceedings supplementary to enforce a judgment may be initiated in the county where the underlying action was litigated.
[2] A party defending in supplementary proceedings who is not seeking affirmative relief cannot be compelled to appear personally in a county where they do not reside.
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Join FLexlaw to unlock all legal intelligence“Venue is proper where the underlying action was tried.”
Establishes the standard for venue in supplementary proceedings under section 56.29
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Join FLexlaw to unlock all legal intelligenceRoger Venne obtained a judgment against a defendant and initiated supplementary proceedings in Dade County under Florida Statutes section 56.29 to rec…
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COPE, Judge.
Teresa Patterson appeals an order im-pleading her in proceedings supplementary under section 56.29, Florida Statutes (1989).
To the extent that Patterson appeals on venue grounds, we affirm. The underlying action was litigated to conclusion in Dade County. Execution having been returned unsatisfied, the plaintiff-judgment creditor initiated supplementary proceedings in Dade County pursuant to section 56.29. Venue is proper where the underlying action was tried. See Coral Contractors, Inc. v. Paul, 387 So. 2d 554, 555 (Fla. 5th DCA 1980); Schwartz v. Capital City First Nat’l Bank, 365 So. 2d 181, 183 (Fla. 1st DCA 1978).
Patterson contends, however, that the order impleading her erroneously requires her to appear personally in Dade County “for a hearing and examination upon the proposed action.” Order at 4, para. 6. As Patterson resides in Clay County, her objection is well taken.
After plaintiff Venne initiated proceedings supplementary, the matter was referred to a master, who recommended that plaintiff be granted leave to proceed under section 56.29.1 An order to show cause was issued, identifying the allegedly fraudulent conveyance of stock by the defendant-judgment debtor to Patterson, the im-pleader defendant. The order was personally served on Patterson. It required her to serve a response by a date certain.
The order went on, however, to require Patterson’s personal appearance in Dade County. Patterson is a resident of Clay County, and is a defending party who is not seeking affirmative relief. As such, she cannot be compelled to appear personally in Dade County. Godshall v. Hessen, 227 So. 2d 506, 508 (Fla. 3d DCA 1969), cert, denied, 237 So. 2d 530 (Fla.1970). Plaintiff may obtain discovery from her, but must proceed in Clay County. Id.; see Fla. R.Civ.P. 1.410(d)(2), 1.560.2 As to that portion of the order, we treat the appeal as a petition for certiorari and quash so much of the order as compels Patterson’s appearance in Dade County.3
Patterson asserts that the order under review in effect requires her to proceed without benefit of discovery. We do not so interpret the order. The Rules of Civil Procedure are applicable, see, Fla.R.Civ.P. 1.010; Exceletech, Inc. v. Williams, 579 So. 2d 850, 852 (Fla. 5th DCA 1991) (Florida Rules of Civil Procedure apply to post-judgment proceedings), and the order does not prevent Patterson’s availing herself of appropriate procedures to prepare her case.
Affirmed as to venue, certiorari granted.4
. No examination of Patterson was made under subsection 56.29(2), as that subsection creates a procedure for plaintiff to examine the original defendant-judgment debtor (not the proposed impleader defendant) about the existence and location of defendant’s assets.
. The same restriction on place of examination applies to the defendant-judgment debtor. See § 56.29(2), Fla.Stat. (1989).
. The court may set a hearing subsequent to the time in which Patterson is required to respond, but the court may not compel her appearance at the hearing.
.In Machado v. Foreign Trade, Inc., 544 So. 2d 1061 (Fla. 3d DCA 1989), this court analogized the procedure under section 56.29 to third party practice under the Rules of Civil Procedure. Id. at 1062. That reference was intended to be an illustration only. Under section 56.29 the plaintiff-judgment creditor joins a third party as an additional defendant. See generally The Florida Bar, Basic Creditors’ & Debtors’ Rights in Florida § 5.6 (1988). The additional defendant is an impleader defendant, not a third party defendant. The original defendant-judgment debtor is not making a claim against Patterson; instead the original plaintiff is proceeding against Patterson as a newly impleaded defendant.
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Citator
Cited By (11 total)
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Fortune Ins. Co. v. Santelli, 621 So. 2d 546 (Fla. 3d DCA 1993)…o. 2d 506 (Fla. 3d DCA 1969), cert. denied, 237 So. 2d 530 (Fla.1970). Similarly, a defendant who is not a resident of the forum where the action is pending is not required to appear in the forum for an examination and a hearing. Patterson v. Venne, 594 So. 2d 331 (Fla. 3d DCA 1992) (defendant, Clay County resident, was not seeking affirmative relief and was thus not required to appear in Dade County). Under federal law,1 the deposition of a representative of a corporate defendant is ordinarily taken at the…
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Fundamental Long Term Care Holdings, LLC v. The Est. of Juanita Amelia Jackson, 110 So. 3d 6 (Fla. 2d DCA 2012)…properly relies on Florida Rule of Civil Procedure 1.180, titled “Third-Party Practice,” which addresses third-party defendants who may be brought in by a defendant as being liable to the defendant. As the Third District noted in Patterson v. Venne, 594 So. 2d 331, 332 n. 4 (Fla. 3d DCA 1992), third-party practice is not invoked in proceedings supplementary. Rather, the “additional defendant is an impleader defendant, not a third[-]party defendant. The original defendant-judgment debtor is not making a claim…
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Donahoo v. Matthews, 660 So. 2d 391 (Fla. 5th DCA 1995)…expense for the purpose of being deposed by a plaintiff, unless the defendant is seeking affirmative relief. Kaufman v. Kaufman, 63 So. 2d 196 (Fla.1952); Fortune Insurance Company v. Santelli, 621 So. 2d 546 (Fla. 3d DCA 1993); Patterson v. Venne, 594 So. 2d 331 (Fla. 3d DCA 1992); Madax Int. Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So. 2d 1082 (Fla. 2d DCA 1977); Godshall v. Hessen, 227 So. 2d 506 (Fla. 3d DCA 1969), cert. denied, 237 So. 2d 530 (Fla.1970). In Fortune, supra, the court…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Schwartz v. Cap. City First Nat'l Bank, 365 So. 2d 181 (Fla. 1st DCA 1978)
- MacHado v. Foreign Trade, Inc., 544 So. 2d 1061 (Fla. 3d DCA 1989)
- Exceletech, Inc. v. S.W. Williams, 579 So. 2d 850 (Fla. 5th DCA 1991)
- Godshall v. Hessen, 227 So. 2d 506 (Fla. 3d DCA 1969)
- Cook v. City of Gainesville, 237 So. 2d 530 (Fla. 1970)
- Hamilton Elec. Co. v. Polk Cnty. Abstract Co., 237 So. 2d 530 (Fla. 1970)
- Coral Contractors, Inc. v. The Honorable Maurice Paul, 387 So. 2d 554 (Fla. 5th DCA 1980)