J. RICHARD HARRIS, TRUSTEE, APPELLANT,
v.
RONALD J. MARTIN, ET AL., APPELLEES
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The court reversed a trial court order denying a protective order against discovery in aid of execution, holding that a creditor cannot execute a judgment against a trustee individually when the judgment was entered only against the trustee in that capacity, not against the individual defendant.
The court held that Harris cannot be subject to execution in his individual capacity on a judgment that names him only as trustee. If Martin wanted a judgment against Harris individually, he was required to seek one during the trial court proceedings. The trial court's denial of Harris's protective order motion violated due process and was reversed.
[1] A judgment against a party in their capacity as trustee does not support execution against that party in their individual capacity.
[2] A party seeking to execute a judgment against an individual must have obtained a judgment against that individual in their personal capacity.
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Join FLexlaw to unlock all legal intelligence“if Martin had wanted a judgment against Harris individually, he should have sought one at some stage of the proceedings below”
Establishes that the judgment creditor must properly identify the party against whom judgment is sought during trial proceedings
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Join FLexlaw to unlock all legal intelligenceMartin obtained a deficiency judgment against "Harris as Trustee" based on pleadings that named Harris only in his trustee capacity. Martin then attem…
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COBB, Judge.
The issue on this appeal is whether discovery in aid of execution (a deposition duces tecum) against the appellant Harris, in his individual capacity, is proper where he was named as a trustee, and not as an individual party, in the pleadings and judgment below.
The appellee, Martin, obtained a deficiency judgment against “Harris as Trustee,” and is now attempting to execute that judgment against Harris individually. Martin’s theory is that his judgment is actually against Harris individually, and that the “trustee” designation in that judgment and in the pleading upon which it is predicated is mere surplusage, since no trust agreement, enumeration of trustee powers, nor identification of beneficiaries ever surfaced in the pleadings or evidence before the trial court. The question boils down to whether Harris is estopped to assert the existence of the trust (having never established its existence before the trial court) or whether Martin is estopped to deny it (having obtained a judgment against Harris as trustee). We must conclude that if Martin had wanted a judgment against Harris individually, he should have sought one at some stage of the proceedings below. Apparently, he never did. While it may or may not be possible to obtain such a judgment, none is now extant which can support a levy against Harris individually. Due process requires that we reverse the trial court’s denial of Harris’ motion for a protective order. Pacesetter Builders-Joint Venture, Inc. v. Coral Springs Property Services, Inc., 531 So. 2d 1061 (Fla. 4th DCA 1988); see generally, Exceletech, Inc. v. Williams, 579 So. 2d 850 (Fla. 5th DCA 1991); Neff v. Adler, 416 So. 2d 1240 (Fla. 4th DCA 1982).
REVERSED.
COWART and HARRIS, JJ., concur.
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Citator
Cited By
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Milton A. Norville, PH.D. v. Bellsouth Advertising & Publ'g Corp., 664 So. 2d 16 (Fla. 3d DCA 1995)…ued the business conducted by Norville in his professional capacity. Bell South’s failure to sue Norville individually protects Nor-ville’s personal assets from execution pursuant to the judgment against Norville’s corporation. See Harris v. Martin, 606 So. 2d 1212 (Fla. 5th DCA 1992) (holding that judgment against party “as trustee” was not against party individually). Reversed and remanded.…
Authorities Cited
- Neff v. Adler, 416 So. 2d 1240 (Fla. 4th DCA 1982)
- Exceletech, Inc. v. S.W. Williams, 579 So. 2d 850 (Fla. 5th DCA 1991)
- DELTA Tech. Corp. v. Horacio Feraud, 531 So. 2d 1061 (Fla. 3d DCA 1988)