PMI MORTGAGE INSURANCE CO., ETC., APPELLANT,
v.
MARTIN D. KAHN, APPELLEE

Fla. 3d DCA | 2009-12-09
No. 3D09-65
Before RAMIREZ, C.J., and COPE and SALTER, JJ.
26 So. 3d 25 Florida District Court of Appeal, Third District (2009)

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Synopsis

PMI Mortgage Insurance Co. appealed a trial court order requiring it, as judgment creditor, to pay special magistrate fees incurred in proceedings supplementary against a judgment debtor. The Third District Court of Appeal affirmed, holding that the judgment creditor must pay the magistrate fees in the first instance but may thereafter tax those costs against the judgment debtor.


Holding

The judgment creditor must pay the special magistrate fees in the first instance and in the absence of an order of appointment specifying different compensation procedures. However, the judgment creditor may thereafter tax those fees against the judgment debtor as costs at the conclusion of the proceedings supplementary.


Headnotes

[1] A judgment creditor initiating proceedings supplementary is responsible for paying the special magistrate's fees in the first instance.

[2] Costs incurred in proceedings supplementary may be taxed against the judgment debtor after being paid by the judgment creditor.

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Key Quotes

“Costs for proceedings supplementary shall be taxed against the defendant as well as all other incidental costs determined to be reasonable and just by the court”

Establishes the statutory framework allowing costs to be taxed against judgment debtor in proceedings supplementary

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Facts & Procedural History

PMI obtained a judgment against Jose A. Baide in March 2005 and initiated proceedings supplementary. In June 2006, PMI's motion resulted in the appoin…

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Opinion of the Court
PER CURIAM.

*26PER CURIAM.

PMI Mortgage Insurance Co. appeals a final circuit court judgment requiring PMI, as judgment creditor, to pay special magistrate fees incurred in connection with proceedings supplementary to PMI’s execution against a judgment debtor. The order did not in any way preclude PMI from seeking thereafter to tax those fees against the judgment debtor in the underlying case. We affirm.

In March 2005, PMI Mortgage Insurance Co. obtained a judgment against Jose A. Baide. As the judgment creditor, PMI began proceedings supplementary against Baide. In June 2006, upon motion by PMI, the court appointed the appellee as special magistrate1 for the debtor’s examination. PMI’s proposed order granting proceedings supplementary provided that the costs of the proceedings should be assessed against Baide. The trial court struck out this provision.

In July 2007, the appellee was replaced as special magistrate by a circuit court general magistrate. The general magistrate filed her report in September 5, 2007. A year later, the appellee filed a motion to have his fees paid by PMI. The trial court granted the motion, and PMI appealed.

Subsection 56.29(11), Florida Statutes (2006),2 provides that costs in proceedings supplementary are taxable against the judgment debtor. The appellee argues that the costs of a special magistrate should be borne in the first instance by the moving judgment creditor, PMI, and that those expenses may thereafter be taxed against the judgment debtor. We agree.

PMI’s position that it is not responsible for the fees seems to be supported by several cases holding that “fees may only be assessed against the judgment debtor.” Bloco, Inc. v. Porterfield Oil Co., 990 So.2d 578, 580 (Fla. 2d DCA 2008) (finding that fees may only be assessed against judgment debtor); Gaedeke Holdings, Ltd. v. Mortgage Consultants, Inc., 877 So.2d 824, 826 (Fla. 4th DCA 2004) (same); Rosenfeld v. TPI Int’l Airways, 630 So.2d 1167 (Fla. 4th DCA 1993) (same). These cases, however, are distinguishable. In each, a judgment creditor used statutory proceedings supplementary to implead third parties alleged to have received fraudulent transfers from the judgment debtor. Those cases correctly applied the statute to prohibit the taxation of the costs of the proceedings against the impleaded third parties. Those cases did not determine the question presented here: is the moving judgment creditor responsible for the payment of the special magistrate in the first instance and in the absence of an order of appointment specifying a different procedure for compensation of the special magistrate?

We answer that question in the affirmative, concurring with a manual for practi*27tioners on the topic: “[o]f course, the judgment creditor must pay for the magistrate, but the costs may be taxed against the defendant.” 3

The trial court correctly ordered PMI to pay the fee. PMI may recover the fee from the judgment debtor as costs at the conclusion of the proceedings supplementary. Id,.; Calderon v. Kalb, 963 So.2d 857 (Fla. 3d DCA 2007).

Affirmed.


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