MARIE LYDIA VARVERIS, APPELLANT,
v.
ALBERTO M. CARBONELL, P.A., APPELLEE
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Marie Varveris appeals a judgment ordering sale of her property in proceedings supplementary to execution. The Third District Court of Appeal reverses because Marie was not properly served or impleaded as a defendant, violating her due process rights to a full and fair hearing.
The judgment must be reversed because Marie was not properly served or impleaded as a party defendant. No third party's rights may be adjudged to be affected or cut off in supplementary proceedings unless they have been fully impleaded, served with process, and given a full and fair hearing as actual parties to the proceeding, not merely as spectators.
[1] A judgment affecting the rights of a third party in proceedings supplementary to execution is void if the third party has not been properly impleaded and brought into the…
[2] A court may grant provisional remedies, such as a temporary injunction, against an asset subject to a creditor's claim before personal service on a party has been effecte…
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Join FLexlaw to unlock all legal intelligence“no rights of [impleader defendants] should be adjudged to be affected, impaired, or finally cut off by any order of court made in such proceedings supplementary to execution, unless such third parties have been first fully impleaded and brought into the case as actual parties to the proceeding, and, as such, given an opportunity to fully and fairly present their claims as parties entitled to a full and fair hearing”
Establishes the fundamental principle that third parties' rights cannot be adjudicated in supplementary proceedings without proper service, impleader, and due process.
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Join FLexlaw to unlock all legal intelligenceAlberto Carbonell obtained a money judgment against Alexander Varveris (Marie's husband) and sought in supplementary proceedings to set aside transfer…
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ON MOTIONS FOR REHEARING/CLARIFICATION
SHEVIN, Judge.
We deny the motions for rehearing/clarification, but issue the following corrected opinion:
Marie Varveris appeals a judgment entered in proceedings supplementary to execution directing the sale of her property. We reverse the judgment.
Alberto Carbonell, P.A., sought to recover on a money judgment entered against Alexander Varveris, Marie’s husband. In proceedings supplementary, § 56.29, Fla. Stat. (1999), Carbonell sought to implead Marie in order to set aside as fraudulent transfers of certain real property to Marie. See §§ 726.101-.112, Fla.Stat. (1999). Carbonell, however, was not able to serve Marie. Although service of process, noticing Marie of the proceedings to set aside the transfers, was not effected, the trial court conducted an evidentiary hearing, impleaded Marie as a defendant, and found that the transfers were fraudulent. Based on that finding, the court ordered the properties sold to satisfy the outstanding judgment.
On appeal, Marie correctly argues that the judgment may not stand because she was not properly brought before the court as an impleader defendant. It is well-settled law that no rights of [impleader defendants] should be adjudged to be affected, impaired, or finally cut off by any order of court made in such proceedings supplementary to execution, unless such third parties have been first fully impleaded and brought into the case as actual parties to the proceeding, and, as such, given an opportunity to fully and fairly present their claims as parties entitled to a full and fair hearing after the making up of definite issues to be tried, and not as mere spectators or bystanders in the cause.
Machado v. Foreign Trade, Inc., 544 So. 2d 1061, 1061 (Fla. 3d DCA 1989)(quoting Ryan’s Furniture Exchange v. McNair, 120 Fla. 109, 120, 162 So. 483, 487 (1935)); 24A Executions Fla.Jur.2d § 108 (1995 & Supp.2000). See State ex rel. Phoenix Tax Title Corp. v. Viney, 120 Fla. 657, 163 So. 57 (1935); see also Exceletech, Inc. v. Williams, 597 So. 2d 275 (Fla.1992); Patterson v. Venne, 594 So. 2d 331 (Fla. 3d DCA 1992); Junca v. Marine Dealers Unlimited Corp., 706 So. 2d 326 (Fla. 4th DCA 1997). Here, it is undisputed that Marie was not served personally or by a substituted method sufficient to confer jurisdiction upon the court. Thus, the judgment must be reversed as she was not properly brought into the proceedings supplementary as a party.
Marie’s contention that reversal of the judgment mandates vacation of the temporary injunction is without merit. Pursuant to section 726.108, the judgment creditor may be afforded certain remedies against the asset subject to the creditor’s claim, including the entry of provisional remedies, i.e., a temporary injunction. The court may afford creditors a remedy such as an injunction before personal service has been effected. “As long ago as 1866, the Florida Supreme Court wrote: Tt is clear that in a suit in equity, upon the filing of the bill, an injunction or other restraining order may issue, if the same is prayed for, and this before [process] has issued or been served.’ ” Smith v. Knight, 679 So. 2d 359, 361 (Fla. 4th DCA 1996)(footnote omitted)(quoting Thebaut v. Canova, 11 Fla. 143, 163 (1866)). We agree with Marie, however, that the trial court should enter an order setting an appropriate bond.
Accordingly, we reverse the judgment and remand the cause so that the court may enter a bond order and so that Carbo-nell may serve Marie with proper pleadings enabling her to respond in the proceeding. If she is evading service, there are methods of service that would enable Carbonell to proceed despite such actions on her part.
Reversed and remanded.
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Zureikat v. Alwad Al Shaibani, 944 So. 2d 1019 (Fla. 5th DCA 2006)…s order in May 2002. Moreover, the record shows that the June 2004 hearing on the motion to establish an equitable lien was scheduled for the sole purpose of securing Majeda’s attendance and participation. Cf. Varveris v. Alberto M. Carbonell, P.A., 773 So. 2d 1275, 1276 (Fla. 3d DCA 2000) (reversing a judgment entered in supplementary proceedings where it was undisputed that the third party was never served). Zureikat’s claim of error on the basis of Wieczoreck v. H & H Builders, Inc., 450 So. 2d 867 (Fla. 5…
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Deluca v. David M. King, CPA, P.A., 197 So. 3d 74 (Fla. 2d DCA 2016)…nonresident defendant under Venetian Salami Co, v. Parthenais, 554 So. 2d 499 (Fla.1989), and the long-arm statute). An impleaded third party must still be properly served in order to exercise jurisdiction. See Varveris v. Alberto M. Carbonell, P.A, 773 So. 2d 1275, 1276 (Fla. 3d DCA 2000) (reversing judgment against impleaded defendant because it was “undisputed that [she] was not served personally or by a substituted method sufficient to confer jurisdiction upon the court”); see also Borden v. East-European…
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Varveris v. Alberto M. Carbonell, P.A., 785 So. 2d 576 (Fla. 3d DCA 2001)…On Motion For Review PER CURIAM. Alberto Carbonell filed a motion to review a judgment awarding Marie Lydia Varveris appellate costs following remand in Varveris v. Carbonell, 773 So. 2d 1275 (Fla. 3d DCA 2000). We grant the motion and reverse the judgment. Pursuant to Florida Rule of Appellate Procedure 9.400(a), the prevailing party on appeal is entitled to entry of a costs judgment. To award costs, the “trial court must determine whi…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ryan's Furniture Exch., Inc. v. McNair, 120 Fla. 109 (Fla. 1935)
- State v. Viney, 120 Fla. 657 (Fla. 1935)
- Bartolo Thebaut and Franklin Glazier v. Canova, 11 Fla. 143 (Fla. 1867)
- MacHado v. Foreign Trade, Inc., 544 So. 2d 1061 (Fla. 3d DCA 1989)
- Patterson v. Venne, 594 So. 2d 331 (Fla. 3d DCA 1992)
- Exceletech, Inc. v. S.W. Williams, 597 So. 2d 275 (Fla. 1992)
- Slocum v. State, 679 So. 2d 359 (Fla. 4th DCA 1996)
- Smith v. Knight, 679 So. 2d 359 (Fla. 4th DCA 1996)
- Rosendo Junca v. Marine Dealers Unlimited Corp., 706 So. 2d 326 (Fla. 4th DCA 1997)