ROY F. FRANCE, SR., TRADING AND DOING BUSINESS AS ROY F. FRANCE AND SON, APPELLANT,
v.
JOE HART ALSO KNOWN AS HERMAN JOSEPHART AND AS JOSEPH HART BELLA HART, LEON GARFIELD, EDITH HELD COOPER, AND HART PROPERTIES, INC. A FLORIDA CORPORATION, APPELLEES
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A judgment creditor sought to enforce a $10,000 judgment against a financially capable debtor through a creditor's bill, alleging fraudulent corporate conduct to divert assets. The trial court dismissed for failure to identify specific property, but the appellate court reversed, holding that allegations of fraudulent conspiracy to shield assets constitute sufficient pleading of identifiable property.
A creditor's bill must allege specific property, meaning property capable of identification, but allegations of fraudulent conspiracy to divert corporate funds and use the corporation to shield assets from creditors satisfy this requirement.
“When the court speaks in terms of specific property, it means property capable of identification.”
Defines the pleading requirement for creditor's bills—property need not be named specifically but must be capable of identification.
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Join FLexlaw to unlock all legal intelligenceAppellant France obtained a $10,000 judgment against appellee Joe Hart. Hart possesses substantial assets including a home valued at $200,000, a Cadil…
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Appellant is the owner of a Ten Thousand Dollar judgment against the appellee—Joe Hart. Appellant instituted this suit in the nature of a creditor’s bill, seeking to require satisfaction of his judgment. Joe Hart lives with his wife in a home valued at approximately Two Hundred Thousand Dollars, drives a Cadillac automobile, receives an annual salary of Sixty-seven Thousand Dollars and owns, with his wife, a one-half interest in the Castaways Motel, valued at approximately Three Million, Five Hundred Thousand Dollars. In spite of this patent financial ability, on the part of the judgment debtor, to meet this obligation, the creditor alleges in his complaint that he is unable to satisfy his judgment.
The salary is not subject to garnishment, attachment or other process directed to the satisfaction of judgments by virtue of § 222.11 Fla.Stat., F.S.A.1 The other property referred to above is held by the judgment debtor in an estate by the entirety and is similarly not available to answer for the judgment debts of one of the tenants individually.2
The chancellor dismissed the complaint, and the plaintiff brings this appeal claiming error on the chancellor’s part. We agree and reverse.
Appellee urges as the basis for dismissal of the complaint that there was no allegation in the complaint of the specific property which the plaintiff is seeking to reach. We agree that this is a necessary allegation for a creditor’s bill to contain,3 but we do not agree that it is not present in the instant complaint. When the court speaks in terms of specific property, it means property capable of identification.
In his complaint, appellant alleged that the defendants had engaged in a fraudulent conspiracy to divert corporate funds and to use the corporation as a shield by which to defraud creditors. This was a sufficient allegation to fulfill the requirement of pleading a good cause of action.4
Since the complaint stated a good cause of action, the trial court’s order of dismissal constituted reversible error, therefore, the judgment appealed is reversed and remanded for proceedings consistent herewith.
Reversed and remanded.
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Balding v. Fleisher, 279 So. 2d 883 (Fla. 3d DCA 1973)…ining was against the appellant wife. It is well established in Florida law that property held as a tenancy by the entireties cannot be made available to answer for the judgment debts of one of the tenants individually. France v. Hart, Fla.App.1964, 170 So. 2d 52; Crawford v. United States Fidelity & Guaranty Co., Fla.App.1962, 139 So. 2d 500; Winters v. Parks, Fla.1956, 91 So. 2d 649; Meyer v. Faust, Fla.1955, 83 So. 2d 847; Hunt v. Covington, 145 Fla. 706, 200 So. 76. Appellees, as purchasers of the prope…
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Hart v. France, 176 So. 2d 511 (Fla. 1965)…Certiorari denied without opinion. 170 So. 2d 52.…
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Sucher v. Utica Mut. Ins. Co., 238 So. 2d 687 (Fla. 3d DCA 1970)…aysian dollars) for a specific premium (three Malaysian dollars). The insurance policy furnished by Malaysian Airways thus meets three of the four criteria of a “specific policy” set forth in the Badger Mutual case. In France v. Hart, Fla.App.1965, 170 So. 2d 52, this court defined “specific property” as “property capable of identification.” The only property capable of identification named in the waybill was “three suitcases.” The personal property for which loss is claimed (no particulars as to items is p…
Authorities Cited
- The Fed. Land Bank of Columbia v. Godwin, 107 Fla. 537 (Fla. 1931)
- Hunt v. Mrs. Nannie L. Covington, 145 Fla. 706 (Fla. 1941)
- Young v. Lassiter, 87 Fla. 445 (Fla. 1924)
- Hedwig Meyer v. Faust, 83 So. 2d 847 (Fla. 1955)
- Armour Fertilizer Works v. First Nat'l Bank of Brooksville, 87 Fla. 436 (Fla. 1924)
- Riesen v. Md. Cas. Co., 153 Fla. 205 (Fla. 1943)
- Hewitt v. Punta Gorda State Bank, 108 Fla. 39 (Fla. 1933)
- Crawford v. United States Fid. & Guar. Co., 139 So. 2d 500 (Fla. 1st DCA 1962)
- Taylor v. Belle Jones, 112 Fla. 234 (Fla. 1933)
- Noland Co., Inc. v. Honorable W. Shannon Linning, 132 So. 2d 802 (Fla. 1st DCA 1961)