B & I CONTRACTORS, INC., APPELLANT,
v.
MEL RE CONSTRUCTION MANAGEMENT, F/K/A MEL RE CONSTRUCTION, INC.; AND BELLA CASA, LLC, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
B & I Contractors appeals a trial court order denying its motion for proceedings supplementary to execute a judgment against Mel Re Construction Management. The court holds that B & I's motion was facially sufficient and that the trial court erred in refusing to conduct proceedings supplementary without explaining its basis for denial.
The trial court erred in denying the motion for proceedings supplementary where the motion and accompanying affidavit were facially sufficient. The court must grant proceedings supplementary and may exercise authority to limit the nature and scope of proceedings or restrict impleader, but cannot simply refuse to conduct any proceedings at the initial hearing.
[1] A motion for proceedings supplementary is facially sufficient if it meets the statutory requirements for initiating such proceedings.
[2] A trial court cannot deny a motion for proceedings supplementary solely based on the initial, nonevidentiary hearing if the motion is facially sufficient.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We conclude that the motion is facially sufficient and that the trial court should have granted the motion. On remand, the trial court may have authority to limit the nature and scope of the proceedings supplementary or to restrict or deny impleader of third parties, but at the initial hearing it could not simply refuse to conduct any proceedings on this motion.”
Core holding that establishes the trial court's error in denying the motion without explanation and affirms the judgment holder's statutory entitlement to proceedings supplementary.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceB & I, a mechanical and electrical contractor, obtained a $190,212.71 judgment against Mel Re Construction Management in September 2009 for unpaid wor…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Impleader Of Third Parties cases and more on FLexlaw
B & I Contractors, Inc., appeals an order denying its motion for proceedings supplementary pursuant to section 56.29, Florida Statutes (2009). The trial court denied the motion after the initial, nonevi-dentiary hearing addressing this post-judgment proceeding. The order does not explain the basis for the denial. We conclude that the motion is facially sufficient and that the trial court should have granted the motion. On remand, the trial court may have authority to limit the nature and scope of the proceedings supplementary or to restrict or deny impleader of third parties, but at the initial hearing it could not simply refuse to conduct any proceedings on this motion.
I. The Facts.
B & I is a mechanical, electrical, and plumbing contractor that had a subcontract with Mel Re Construction Management to do work on a project owned by Bella Casa, LLC.1 Allegedly, Edward Adkins owns and controls Mel Re and Bella Casa, but Mr. Adkins is not a party to these proceedings. B & I filed the circuit court action against Mel Re and Bella Casa seeking payment for work that it performed on the project. Ultimately, it obtained a judgment against Mel Re for $190,212.71 in September 2009 in case number 07-CA-006268. The judgment remains unpaid and is the source of B & I’s efforts to obtain proceedings supplementary.
Before B & I obtained the final judgment, the parties had apparently expanded the lawsuit to include a third-party action by Bella Casa against the Bank of Florida. Bella Casa allegedly brought this third-party action as a trustee or nominee for the benefit of subcontractors, including B & I. In a written settlement agreement identifying a separate action, case number 08-CA-003759, the Bank of Florida, Mel Re, Mr. Adkins, Mr. Adkins’s wife, and several other persons or entities allegedly settled this third-party action. B & I was not a participant in this settlement, which occurred shortly before B & I obtained its judgment.
B & I maintains that by releasing the bank in this written settlement, Mel Re gave up a chose in action that was a valuable asset that it could and should have used to pay B & I’s claim. It argues that Mel Re gave up this chose in action in *1037order to obtain a release of Mr. Adkins’s personal liability on a guarantee. B & I also argues that this settlement was a fraudulent conveyance of Mel Re’s property that Mel Re could have used to satisfy its judgment. We emphasize that the Bank of Florida, Mr. Adkins, and the other parties to the written settlement agreement are not parties to this appeal because the trial court denied the motion for proceedings supplementary at its inception. Thus, it is likely that Mr. Adkins and the bank would provide a different explanation of these events. However, for purposes of this appeal, we are required to accept the pleadings at face value.
When the judgment against Mel Re remained unsatisfied, B & I filed a motion for proceedings supplementary to execution combined with a motion to implead parties in February 2010. The motion alleges the circumstances described in the preceding paragraphs. B & I attached several exhibits to the motion, including an affidavit in compliance with section 56.29(1), the final judgment, the settlement agreement, and the fact information sheet created in compliance with Florida Rule of Civil Procedure 1.560(b).
There is no transcript of the hearing on this motion. The trial court’s minutes indicate that attorneys representing the proposed third parties appeared at this hearing and argued that B & I could not implead them because it did not obtain a judgment until after the parties had executed the settlement agreement. The trial court entered a very short order denying the motion for proceedings supplementary. It did not rule on the motion to implead third parties, presumably because its ruling rendered that motion moot.
II. Proceedings Supplementary
Section 56.29 provides for proceedings supplementary. The legislature enacted the statute in 1919, and it has remained largely unchanged throughout the last ninety years. See Ch. 7842, Laws of Fla. (1919). Although there are several rules of civil procedure addressing execution of judgments and collection thereon, see Fla. R. Civ. P. 1.550-1.570, there are no rules that assist an attorney with the filing of proceedings supplementary. The practitioner must rely on a limited body of cases discussing this statute and several treatises that provide assistance. See, e.g., Bruce J. Berman, Berman’s Florida Civil Procedure §§ 550.9-.10, 560.4 (2010-11 ed.2010); Guy P. Coburn, Creditors’ & Debtors’ Practice in Florida § 11.6 et seq. (2007); Philip J. Padovano, Florida Civil Practice § 13:6 (2011 ed. 2010).
On the face of the statute, a party commences these proceedings not by filing a motion, but by filing an affidavit. In the affidavit, the affiant must attest that he or she holds an unsatisfied judgment obtained under chapter 55, identify the issuing court and case number, state the unsatisfied amount of the judgment, and confirm that the execution is valid and outstanding. By filing such an affidavit, the holder “is entitled to these proceedings supplementary to execution.” § 56.29(1).
Obviously, any lawyer today would be uncomfortable with the idea of obtaining action from a trial court by affidavit, and most judges would not expect to be required to take action based solely on an affidavit. Thus, the relevant treatises discuss commencing the proceeding by motion and provide sample motions. See, e.g., Coburn, Creditors’ & Debtors’ Practice in Florida § 11.9. In this case, B & I filed such a motion, attaching the affidavit that “entitled” it to proceedings supplemental.
At least in some circumstances, the existing case law allows a judgment holder to pursue a chose in action in proceedings supplementary even if it is necessary to implead third parties to obtain rights over the chose in action. See, e.g., Gen. Guar. Ins. Co. of Fla. v. DaCosta, 190 So.2d 211 *1038(Fla. 3d DCA 1966). On its face, this statute allows the holder to pursue property that the debtor held within one year of the service of process. See § 56.29(6)(a). The statute also allows the holder to pursue property that the debtor transferred or conveyed in order to defraud creditors.2 See § 56.29(6)(b).
We conclude that the trial court erred in denying B & I’s entitlement to proceedings supplementary in light of the facial sufficiency of its pleadings and affidavit. If the trial court has a proper reason to limit these proceedings or to deny im-pleader, that reason is not apparent in this record. Accordingly, we reverse the order on appeal and remand for proceedings supplementary in which the trial court has authority to take any action appropriate under the law.
Reversed and remanded.
SILBERMAN, C.J., and VILLANTI, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Fundamental Long Term Care Holdings, LLC v. The Est. of Juanita Amelia Jackson, 110 So. 3d 6 (Fla. 2d DCA 2012)…initiate proceedings supplementary, the statute requires that the judgment creditor have an unsatisfied judgment and file an affidavit averring that the judgment is valid and outstanding. § 56.29(1); B & I Contractors, Inc. v. Mel Re Constr. Mgmt., 66 So. 3d 1035, 1037 (Fla. 2d DCA 2011); NTS Fort Lauderdale Office Joint Venture v. Serchay, 710 So. 2d 1027, 1028 (Fla. 4th DCA 1998); Office Bldg., LLC v. CastleRock Sec., Inc., No. 10-61582-CIV, 2011 WL 1674963, at *2 (S.D.Fla. May 3, 2011). “The statutory pro…
-
Okaloosa NEW Opportunity, LLC v. LD Projects, LLC, 109 So. 3d 1209 (Fla. 5th DCA 2013)…da Statutes, governs “Proceedings supplementary.” Relying upon Regent Bank v. Woodcox, 636 So. 2d 885, 886 (Fla. 4th DCA 1994), Biloxi Casino Corp. v. Wolf, 900 So. 2d 734, 734 (Fla. 4th DCA 2005), and B & I Contractors, Inc. v. Mel Re Constr. Mgt., 66 So. 3d 1035, 1038 (Fla. 2d DCA 2011), Okaloosa asserts that the statute creates an absolute entitlement. In Regent Bank, the Fourth District Court of Appeal addressed the process of impleading a third party under section 56.29, Florida Statutes: “The predicate…
-
Abelardo Estrada v. Sorrento Townhomes, LLC, 164 So. 3d 675 (Fla. 3d DCA 2013)…; (2) identifies the issuing court and case number; (3) states the unsatisfied amount of the judgment; and (4) confirms that execution is valid and outstanding. § 56.29(1), Fla. Stat. (2012); see also B & I Contractors, Inc. v. Mel Re Constr. Mgmt., 66 So. 3d 1035,1037 (Fla. 2d DCA 2011); Okaloosa New Opportunity, LLC v. LD Projects, LLC, 109 So. 3d 1209 (Fla. 5th DCA 2013). Here, the affidavit and attachments to the motion satisfied all of the prerequisites for commencement of the proceedings supplementary.…
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
- Gen. Guar. Ins. Co. of Fla. v. DaCOSTA, 190 So. 2d 211 (Fla. 3d DCA 1966)