In the Supreme Court ofFlorida...B.J. 28, 29 (Dec. 2012) (hereinafter, "Brodsky Article"). In this...

In the Supreme Court of Florida

CASE NO. 13-350

FUNDAMENTAL LONG TERM CARE HOLDINGS,LLC, MURRAY FORMAN, and LEONARD

GRUNSTEIN,

Petitioner,

v.

THE ESTATE OF JUANITA AMELIA JACKSON, byand through CATHY JACKSON-PLATTS f/k/a

CATHERINE WHATLEY, Personal Representative, etal.,

Respondents.

ON DISCRETIONARY REVIEW FROM THESECOND DISTRICT COURT OF APPEAL

PETITIONERS' BRIEF ON JURISDICTION

Matthew TriggsLisa Markofsky

PROSAKUER ROSE LLP2255 Glades Road, Suite 421 A

Boca Raton, FL 33431Telephone: 561-241-7400Facsimile: 561-241-7145

Counsel for Petitioners

TABLE OF CONTENTS

STATEMENT OF THE CASE AND OF THE FACTS........................................... 1

SUMMARY OF THE ARGUMENT........................................................................3

JURISDICTIONAL STATEMENT.......................................................................... 5ARGUMENT ............................................................................................................5

I. The Second District's Opinion Conflicts with Exceletech......... 5

II. The Second District's Opinion Conflicts with Forman............. 7

III. The Court Should Exercise Jurisdiction Because There is aCritical Need to Unify the Widespread Inconsistencies inFlorida Case Law........................................................................8

CONCLUSION......................................................................................................... 9CERTIFICATE OF SERVICE................................................................................11

CERTIFICATE OF COMPLIANCE WITH FONT STANDARD ........................ 12

1

TABLE OF AUTHORITIESPage(s)

CASES

Boats Express, Inc. v. Thackeray,978 So. 2d 206 (Fla. 2d DCA 2008)................................................................ 3, 8

Exceletech, Inc. v. Williams,579 So. 2d 850 (Fla. 5th DCA 1991)............................................................... 3, 7

Exceletech, Inc. v. Williams,597 So. 2d 275 (Fla. 1992)....................................................................... 3, 5, 6, 7

Forman v. Great American Resorts ofFlorida,929 So. 2d 1089 (Fla. 4th DCA 2006)............................................................. 4, 7

Fundamental Long Term Care Holdings, LLC v. Estate ofJackson ex rel.Jackson-Platts, No. 2D12-394, 2012 WL 5935678 (Fla. 2d DCA Nov. 28,2012).................................................................................................................passim

STATUTES

Florida Statute § 56.29 .....................................................................................passim

OTHER AUTHORITIES

Benjamin Brodsky, Caught in the Web ofFlorida's Statutory ProceedingsSupplementary: Procedural and Constitutional Problems Facing ImpleadedThird Parties, 86 Fla. B.J. 28 (Dec. 2012)................................................................ 4

Fla. Const. Article V, § 3(b)(3)................................................................................. 5

Fla. R. App. P. 9.030(a)(2)(A)(iv)............................................................................. 5

Fla. R. Civ. P. 1.050 .................................................................................................. 6

Fla. R. Civ. P. 1.070 ..................................................................................................6

Fla. R. Civ. P. 1.100 ..................................................................................................6

Fla. R. Civ. P. 1.250(c)............................................................................................. 6

Fla. R. Crim. P. 3.840(a)........................................................................................... 6

11

STATEMENT OF THE CASE AND OF THE FACTS

This appeal arises from a decision issued by the Second District in

proceedings supplementary under Section 56.29 of the Florida Statutes 1 In those

proceedings, the Estate of Juanita Jackson (the "Estate") seeks to hold

Fundamental Long Term Care Holdings, LLC and its members, Murray Forman

and Leonard Grunstein (together the "FLTCH Parties"), liable for a $110 million

default judgment. The Second District concluded that the Estate could pursue

collection efforts for this judgment against the FLTCH Parties without serving

them with a summons or complaint because such claims were asserted in post-

judgment proceedings supplementary. The FLTCH Parties request that this Court

exercise its discretionary jurisdiction to review this substantial question of law that

lacks a consistent answer in Florida case law.

The Trial Court Proceedings

After settling with eleven defendants and obtaining a $110 million default

judgment against two other defendants, the Estate sought to implead 16 new

defendants, including the FLTCH Parties, pursuant to Section 56.29. See Op.,

2012 WL 5935678, at *1. The circuit court granted the Estate's motion to implead

and entered orders directing the FLTCH Parties (and the other impled defendants)

1 See Fundamental Long Term Care Holdings, LLC v. Estate ofJackson ex rel.Jackson-Platts, No. 2D12-394, 2012 WL 5935678 (Fla. 2d DCA Nov. 28, 2012)(the "Opinion"). A copy of the Opinion is attached hereto as Appendix A.

1

to appear and to show cause why they should not be held liable for the $110

million judgment. See id.

The Estate did not serve the FLTCH Parties with summonses or complaints.

Instead, the Estate served each with copies of the impleader motion and supporting

memorandum and the trial court's order to show cause - none of which set forth a

short and plain statement of alleged ultimate facts from which the FLTCH Parties

could discern the Estate's purported grounds for relief against them. The FLTCH

Parties moved to dismiss the action, inter alia, for lack ofjurisdiction because of

the Estate's failure to serve them with a summons and complaint as required by the

Rules of Civil Procedure. See Op., 2012 WL 5935678, at *1. The trial court

denied the motion to dismiss, ruling that neither a summons nor a complaint is

required to obtain personal jurisdiction over a new impleader defendant. See id.

The District Court Proceedings

The FLTCH Parties filed an interlocutory appeal to the Second District. In

November 2012, the district court issued its Opinion, which erroneously found that

Section 56.29 spells out a "show cause" procedure for impleading a new defendant

in proceedings supplementary. Based on its interpretation of Section 56.29, the

Second District concluded that the Estate could proceed against the FLTCH Parties

for a $110 million personal judgment based merely on service of a show cause

order.

2

The FLTCH Parties sought rehearing or certification of the Opinion, which

conflicts with: (a) this Court's opinion in Exceletech, Inc. v. Williams, 597 So. 2d

275 (Fla. 1992) ("Exceletech"), and its progeny; and (b) the Second District's own

decision in Boats Express, Inc. v. Thackeray, 978 So. 2d 206 (Fla. 2d DCA 2008).

The district court denied the request in February 2013. The FLTCH Parties

continue to believe that this appeal presents an important and uncertain legal issue

that affects a substantial number ofpost-judgment proceedings in this state and,

therefore, seek to invoke this Court's discretionary jurisdiction.

SUMMARY OF THE ARGUMENT

The Second District's interpretation of Section 56.29 directly conflicts with

the Exceletech decision in which this Court considered whether a trial court must

examine a judgment creditor as a condition precedent to impleading a third-party

defendant in proceedings supplementary under Section 56.29. This Court held that

such a precondition could not be imposed because the plain language of Section

56.29 "does not even address the subject of impleading third parties" and

therefore the Rules ofCivil Procedure govern impleader. 597 So. 2d at 276

(quoting Exceletech, Inc. v. Williams, 579 So. 2d 850, 852 (Fla. 5th DCA 1991)

("Exceletech 1")) (emphasis added). In contrast, the Second District reached

exactly the opposite conclusion, finding that Section 56.29 spells out a "show

cause" procedure for impleading a new defendant in proceedings supplementary.

3

In doing so, the Second District created conflict with Exceletech, and decisions

such as Forman v. Great American Resorts ofFlorida, 929 So. 2d 1089 (Fla. 4th

DCA 2006), which correctly have read Exceletech as requiring service of an

impleader complaint.

In its Opinion, the Second District recognized that Florida courts apply

Section 56.29 inconsistently; some cases permit the adding of new defendants by

impleader complaint and others permit impleader by motion. See 2012 WL

5935678, at *4. Indeed, a recent Florida Bar Journal article pleaded for clarity as

to the proper procedure for bringing claims against impleaded defendants,

explaining that the current state of the law "makes prosecuting or defending

against such claims an exercise in guesswork and frustration." See Benjamin H.

Brodsky, Caught in the Web ofFlorida's Statutory Proceedings Supplementary:

Procedural and Constitutional Problems Facing Impleaded Third Parties, 86 Fla.

B.J. 28, 29 (Dec. 2012) (hereinafter, "Brodsky Article").

In this case, the FLTCH Parties were impleaded into supplementary

proceedings by a creditor seeking to hold them liable for a $110 million judgment

upon a motion and order to show cause. The Second District concluded that such

procedure was prescribed by Section 56.29 - even though this Court clearly and

expressly has stated the opposite. The Second District's decision thus creates a

conflict in the law. Resolution of the conflict is important because Florida post-

4

judgment proceedings should be guided by a uniform interpretation and application

of Section 56.29, which interpretation should insure that newly impleaded

defendants are afforded the guaranties of due process.

JURISDICTIONAL STATEMENT

Appellants seek review of the Second District's November 2012 Opinion.

This Court has jurisdiction to review the Opinion because it expressly and directly

conflicts with a decision of this Court and a decision of the Fourth District on the

same point of law. See Fla. Const. Art. V, § 3(b)(3); Fla. R. App. P.

9.030(a)(2)(A)(iv).

ARGUMENT

I. The Second District's Opinion Conflicts with Exceletech.

In Exceletech, this Court concluded that Section 56.29 "does not even

address the subject of impleading third parties" and that the Rules of Civil

Procedure therefore govern, just as they would in pre-judgment proceedings. 597

So. 2d at 276 (quoting Exceletech 1). Inexplicably, the Opinion held the opposite:

that the same statute prescribes a show cause procedure to implead a new

defendant. The Opinion directly and expressly conflicts with Exceletech for two

reasons.

First, the Opinion's interpretation of subsections (2) and (3) of Section 56.29

directly and expressly conflicts with the Exceletech Court's interpretation of these

5

same two subsections. In Exceletech, this Court held that subsections (2) and (3)

o_nly provide a procedure for obtaining discovery from the original judgment

debtor. The Opinion holds that subsections (2) and (3) provide a procedure for

impleading a third party. 2012 WL 5935678, at *3.

Second, the Opinion conflicts with Exceletech 's holding that the Rules of

Civil Procedure "clearly apply to postjudgment as well as prejudgment

proceedings," including proceedings supplementary. 597 So. 2d at 276. The Rules

of Civil Procedure do not prescribe a show cause procedure (let alone a show cause

procedure for establishing personal liability for a $110 million claim). Instead, the

Rules require service of a summons and complaint to obtain personal jurisdiction

over a defendant to commence an action against him. See Fla. R. Civ. P. 1.050,

1.070 & 1.100. Compare Fla. R. Crim. P. 3.840(a) (providing for order to show

cause in indirect criminal contempt proceeding).2 Hence, the Opinion is in direct

and express conflict with Exceletech by concluding that Section 56.29 authorizes

the use of a procedure other than a summons and complaint to commence an action

for personal liability against a third party.3

2 The right to implead a third party is obtained by motion and order under Rule1.250(c). However, personal jurisdiction over the newly-added party is onlyobtained after proper service of a summons and complaint.

3 The Second District was of the view that this Court's dicta in Exceletech,"agree[ing] entirely" with the Fifth District's majority opinion in Exceletech I, 579So. 2d at 852-53, and stating that "the procedure followed by Williams was in

6

II. The Second District's Opinion Conflicts with Forman.

The Opinion also conflicts with other district court decisions, including by

the Second District itself, that have construed Exceletech to require that a judgment

creditor serve an impleader complaint to proceed against a new defendant in

proceedings supplementary. Specifically, in Forman, 929 So. 2d 1089, the

plaintiff sought and obtained an order permitting the impleader of the judgment

debtor's shareholder in Section 56.29 proceedings. The plaintiff served the order

upon the shareholder, but did not serve a summons and complaint. Citing to

Exceletech, the Fourth District concluded that the plaintiff "did not take the

procedural steps necessary to implead [the shareholder] so that he was a party to

the action," because the plaintiff "did not file an impleader complaint and serve it

on" the shareholder. Id. at 1090.

Similarly, the Second District itselfpreviously held that entry of a judgment

against an impleader defendant in a Section 56.29 proceeding must be reversed

where "no complaint had been filed against him" because the failure to serve a

accordance with the rules of civil procedure" supported the impleader procedureaffirmed by the Opinion. When read in context, however, it is clear that what thisCourt meant in Exceletech was that Williams properly followed the procedure foradding parties to an existing case because parties may be added by motion andorder granting the same. See 597 So. 2d at 276 (citing Rule 1.250(c)). The furtherquestion of whether a show cause procedure is proper to obtain personaljurisdiction over a new defendant to adjudicate personal liability against thatdefendant after the court has permitted the addition of the defendant to the casewas not presented to, or decided by, this Court in Exceletech.

7

complaint violated a "fundamental principle of due process of law" and the Rules

of Civil Procedure. Boats Express, 978 So. 2d at 211 (citation omitted). The

Opinion acknowledged that Boats Express "suggests that an impleader complaint

must be filed and served on a new defendant," 2012 WL 5935678, at *3, but

declined to follow Boats Express.

Hence, the Opinion also conflicts with Forman and Boats Express, both of

which require service of an impleader complaint.

III. The Court Should Exercise Jurisdiction BecauseThere is a Critical Need to Unify the WidespreadInconsistencies in Florida Case Law.

The Court should exercise jurisdiction to hear this case because there is a

real and substantial need to clarify Florida law governing the requirements for

impleader in supplementary proceedings - and specifically whether such

proceedings require a complaint that places an impleader defendant on sufficient

notice of the basis for the claims asserted against it. Indeed, this appeal presents

this Court with an opportunity to clarify the law on an issue that one commentator

recently described as "[t]he most important, yet fraught, aspect of [the Section

56.29] collections procedure." Brodsky Article at 29.

As the Second District noted in the Opinion, the case law reflects

inconsistency in impleader practice through Florida. Some courts require

judgment creditors to proceed by complaint, while other courts allow creditors to

8

proceed via motion. See 2012 WL 5935678, at *4 (citing several examples of

each). This split of authority regarding the proper interpretation and application of

the statute is attributable to, among other things, a perceived "conflict with the

constitutional and procedural rights of the third-party impleaded defendants who

find themselves unwittingly roped into post-judgment collections proceedings in

which their own property rights may be at stake." Brodsky Article at 29.

Widespread inconsistency in the case law is equally the result of the statute's

silence concerning the impleader procedure (which cannot be resolved by the

Opinion's unsupportable effort to read an impleader procedure into the statute).

Given the lack of clarity and consistency in Florida case law on a legal issue

with substantial due process implications, this Court should accept jurisdiction to

hear this appeal, particularly given the magnitude of the claims at issue.

CONCLUSION

The FLTCH Parties request that this Court accept jurisdiction to resolve the

conflict created by the Second District's decision and the inconsistency throughout

Florida courts as to the proper procedure for impleading a defendant for purposes

ofproceedings supplementary.

9

Dated: March 11, 2013 Respectfully submitted,

PROSKAUER ROSE LLPCounselfor Fundamental Long TermCare Holdings, LLC, Murray Forman, andLeonard Grunstein2255 Glades Road, Suite 421 AtriumBoca Raton, FL 33431-7360Telephone: (561) 241-7400Facsimile: (561) 241-7145

By:Matthew TriggsFlorida Bar No. 0865745Primary: [email protected]:[email protected] MarkofskyFlorida Bar No. 0016673Primary: [email protected]

10

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

furnished by e-mail on the 1lth day of March, 2013 to:

Bennie Lazzara, Jr., Esq.Primary: [email protected]: [email protected]: [email protected] R. Ruiz-Carus, Esq.Primary:[email protected]:[email protected] Greber, Esq.Primary: [email protected]: [email protected] & MCHUGH, PA1 N. Dale Mabry Highway, Suite 800Tampa, FL 33609

Stuart Markman, Esq.Primary: [email protected]: [email protected] A. Norse, Esq.Primary: [email protected]: [email protected] W. Ritsch, Esq., Of CounselPrimary: [email protected]: [email protected], MARKMAN &FELMAN, P.A.P.O. Box 3396Tampa, FL 33601-3396

Co-Counselfor Respondent

Co-Counselfor Respondent

Matthe

11

CERTIFICATE OF COMPLIANCE WITH FONT STANDARD

Undersigned counsel hereby respectfully certifies that the foregoing Brief on

Jurisdiction complies with Fla. R. App. P. 9.210 and has been typed in Times New

Roman, 14 Point.

Matthew TÍïg'gs

12

Appendix A

Wéstlaw,Page 1

--- So.3d --, 2012 WL 5935678 (Fla.App. 2 Dist.), 37 Fla. L. Weekly D2718(Cite as: 2012 WL 5935678 (Fla.App. 2 Dist.))

H

NOTICE: THIS OPINION HAS NOT BEEN RE-LEASED FOR PUBLICATION IN THE PERMA-NENT LAW REPORTS. UNTIL RELEASED, IT ISSUBJECT TO REVISION OR WITHDRAWAL.

District Court of Appeal ofFlorida,Second District.

FUNDAMENTAL LONG TERM CARE HOLD-INGS, LLC, Murray Forman, and Leonard Grunstein,

Appellants,v.

The ESTATE of Juanita Amelia JACKSON, by andthrough Cathy JACKSON-PLATTS f/k/a CatherineWhatley, as Personal Representative of the Estate of

Juanita Amelia Jackson, Appellee.

No. 2D12-394.Nov. 28, 2012.

Background: After estate obtained a default judg-ment for $110 million against defendants in nursinghome litigation, estate moved to implead sixteen newdefendants. Three of the new defendants moved todismiss. The Circuit Court, Polk County, J. MichaelMcCarthy, J., denied motion. Defendants appealed.

Holding: The District Court of Appeal, Morris, J.,held that estate was not required to file an impleadercomplaint and serve process with that complaint inorder to commence proceedings supplementaryagainst new third parties.

Affirmed.

30k70(1) k. Relating to parties orprocess. Most Cited Cases

Appellate court had jurisdiction to review nonfi-nal order impleading third parties, where the im-pleaded parties challenged personal jurisdiction.West's F.S.A. R.App.P.Rule 9.130(a)(3)(C)(i).

J2J Execution 161 @358

161 Execution161XIV Supplementary Proceedings

161k358 k. Nature and purpose of remedy.Most Cited Cases

"Proceedings supplementary" are special statu-tory proceedings subsequent to judgment to aid ajudgment creditor in collecting his judgment againstthe judgment debtor. West's F.S.A. § 56.29.

JR Execution 161 @371


161k371 k. Jurisdiction and authority of courtor judge. Most Cited Cases

Execution 161 @387


161k385 Proceedings for Examination ofThird Persons

161k387 k. Pleadings or affidavits and par-ties. Most Cited Cases

West Headnotes Execution 161 @389

jl] Appeal and Error 30 @70(1)

30 Appeal and Error30III Decisions Reviewable

30III(D) Finality of Determination30k67 Interlocutory and Intermediate Deci-

sions30k70 Nature and Scope of Decision


161k385 Proceedings for Examination ofThird Persons

161k389 k. Service of order and affidavit.Most Cited Cases

Estate was not required to file an impleader

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

-- So.3d ----, 2012 WL 5935678 (Fla.App. 2 Dist.), 37 Fla. L. Weekly D2718(Cite as: 2012 WL 5935678 (Fla.App. 2 Dist.))

complaint and serve process with that complaint inorder to commence proceedings supplementaryagainst new third parties following a $110 milliondefault judgment against defendants in nursing homelitigation, and thus, the trial court did not lack per-sonal jurisdiction over the third parties on the basis ofinsufficient service of process, where estate followedthe procedure set forth in rule regarding proceedingssupplementary. West's F.S.A. § 56.29.

Matthew Triegs, C. Sanders McNew, and Andrew L.Hoffman of Proskauer Rose LLP, Boca Raton, forAppellants.

Isaac R. Ruiz-Carus and Joanna M. Greber of Wilkes& McHugh, P.A., Tampa, for Appellee.

MORRIS, Judge.*1 Appellants-Fundamental Long Term Care

Holdings, LLC, Murray Forman, and Leonard Grun-stein--appeal a nonfinal order denying their motionto dismiss proceedings supplementary initiatedagainst them by the estate of Juanita Jackson (theEstate). In denying the motion to dismiss, the trialcourt rejected appellants' argument that the trial courtlacked personal jurisdiction because the appellantsnever received service of process with an impleadercomplaint in the proceedings supplementary. Weaffinn the order on appeal and write to clarify the lawon this issue.

I. BackgroundAfter settling with eleven defendants in nursing

home litigation, the Estate obtained a default judg-ment for $110 million against two remaining defen-dants. The Estate then filed motions to implead six-teen new defendants, including the three appellants inthis appeal, in proceedings supplementary undersection 56.29, Florida Statutes (2010). The trial courtentered orders granting the motions to implead andordering the new defendants to show cause why theyshould not be held liable for the judgments. The ap-pellants moved to dismiss, alleging among otherthings that the trial court lacked personal jurisdictionover them because the Estate failed to serve themwith a summons and an impleader complaint. At theconclusion of a hearing, the trial court orally deniedthe appellants' motion on the basis that "[t]his actionhas been filed pursuant to section 56.29. It's a post-judgment action. Pursuant to that statute the motionto dismiss will be denied. This court has jurisdic-

tion." The trial court then entered a written order ofdenial, which the appellants now appeal.

II. JurisdictionDl] The Estate claims that the nonfinal order may

not be appealed based on cases which generally holdthat an order impleading a third party in proceedingssupplementary is not appealable. See Maryland Cas.Co. v. Century Constr. Corp., 656 So.2d 611 (Fla. I stDCA 1995 ); Sverdahl v. Farmers & Merchs. Sav.Bank, 582 So.2d 738 (Fla. 4th DCA 1991); Machadov. Foreign Trade, Inc., 544 So.2d 1061 (Fla. 3d DCA1989); Warren v. Se. Leisure Sys., Inc., 522 So.2d979 (Fla. 1st DCA 1988). However, in those cases,the impleaded parties never sought to dismiss theproceedings supplementary on the basis of lack ofpersonal jurisdiction. See Sverdahl, 582 So.2d at 740;Machado, 544 So.2d at 1062. In fact, in Warren thecourt noted that the impleaded parties never chal-lenged personal jurisdiction in their motions to dis-miss and were therefore "not entitled to review at thisstage of the proceedings." 522 So.2d at 981. Here, thenonfinal order determines personal jurisdiction andwe therefore have jurisdiction to review it. See FlmR.App. P. 9.130(a)(3)(C)(i); see also Nat'l LakeDevs., Inc. v. Lake Tippecanoe Owners Ass'n, 417So.2d 655, 657 (Fla.1982) (holding that " 'the term"jurisdiction of the person" refers to service of proc-ess or the applicability of the long[-]arm statute tononresidents' " (quoting and approving Nat'l LakeDevs., Inc. v. Lake Tippecanoe Owners Ass'n, 395So.2d 592, 593 (Fla. 2d DCA 1981))).

III. Analysis*2 On appeal, the appellants argue that proceed-

ings supplementary under section 56.29 are governedby the Florida Rules of Civil Procedure and that therules require that a newly impleaded defendant beserved with a summons and complaint in order forthe court to have personal jurisdiction over thatnewly impleaded defendant. In response, the Estateclaims that there is no requirement that a plaintiff filean impleader complaint and serve process with thatcomplaint in order to commence proceedings sup-plementary against new third parties. The Estateclaims that the trial court properly denied the appel-lants' motion to dismiss because the Estate followedthe procedure set forth in section 56.29.

{2] Proceedings supplementary under section5_62 are special statutory "proceedings subsequent


So.3d ----, 2012 WL 5935678 (Fla.App. 2 Dist.), 37 Fla. L. Weekly D2718(Cite as: 2012 WL 5935678 (Fla.App. 2 Dist.))

to judgment to aid a judgment creditor in collecting the statute itself unless the rules [of civil procedure]his judgment against the judgment debtor." Rosenfeld provide otherwise' " (alteration in original) (quotingv. TPI Int'l j1irways, 630 So.2d 1167, 1169 (Fla. 4th Federated Stores Realty, Inc. v. Burnstein, 392 So.2dDCA 1993). In order to initiate proceedings supple- 573, 574 (Fla. 4th DCA 1980))); Crocker v. Dilandmentary, the statute requires that the judgment credi- Corp., 593 So.2d 1096, 1098 (Fla. 5th DCA 1992)tor have an unsatisfied judgment and file an affidavit ("In effect, the supreme court has indicated that ifaverring that the judgment is valid and outstanding. § there is some aspect of a special statutory procedure56.29(1); B & I Contractors, Inc. v. Mel Re Constr. it disapproves, it will say so by rule. Unless it does,Mgmt., 66 So.3d 1035, 1037 (Fla. 2d DCA 20 l 1); the special statutory procedures apply.").NTS Fort Lauderdale Office Joint Venture v. Ser-chay, 710 So.2d 1027, 1028 (Fla. 4th DCA 1998); *3 DJ There is no explicit rule requiring that a

Office Bldg., LLC v. CastleRock Sec., Inc., No. 10- plaintiff wishing to initiate proceedings supplemen-61582-CIV, 2011 WL 1674963, at *2 (S.D.Fla. May tary against a new third party must file an impleader3, 2011). "The statutory procedure was designed to complaint and serve process of that complaint on theavoid the necessity of the judgment creditor initiating new third party. FN1 Therefore, we must look to thean entirely separate action for a creditor's bill." procedure in section 56.29. Section 56.29 directs aRegent Bank v. Woodcox, 636 So.2d 885, 886 (Fla, plaintiff to file an affidavit attesting that the plaintiff4th DCA 1994); see Office Blda, LLC, 2011 WL holds an unsatisfied judgment as well as a motion to1674963, at *3. require the defendant in execution to appear before

the court. 6 56.29(l), (2)." The trial court shall thenIn B & I Contractors, 66 So.3d at 1037, this enter an order requiring the defendant to appear be-

court explained that section 56.29(1) provides that an fore the court for an examination concerning the de-affidavit be filed to commence the proceedings but fendant's property. § 56.29(2). The trial court's "orderthis court noted that motions are commonly used shall be served in a reasonable time before the date ofalso. This court suggested that once entitlement to the the examination in the mannerprovidedfor service ofproceedings has been established by this process, summons or may be served on such defendant or histhird parties not before the court may be brought into or her attorney as providedfor service ofpapers inthe proceedings by impleader. Id. at 1037-38. This the rules of civil procedure." § 56.29(3) (emphasiscourt did not discuss the process by which a new de- added).fendant should be impleaded.

Although the statutory procedure above seemsThe appellants correctly argue that the Florida clear, the case law in Florida does not clearly answer

Rules of Civil Procedure apply to proceedings sup- the question before us. The appellants rely on severalplementary under section 56.29. See Exceletech, Inc. cases in support of their argument that an impleaderv. Williams, 597 So.2d 275 (Fla.1992) (applying the complaint must be filed with process served on therules and holding that the rules do not require a new defendants in order for the trial court to havejudgment creditor to be examined before a third party personal jurisdiction over the new defendants in pro-is impleaded in proceedings supplementary and that ceedings supplementary. In Boats Express, Inc. v.the rules do not require a petition to implead to be Thackeray, 978 So.2d 206, 210 (Fla. 2d DCA 2008),sworn to). But unless the civil rules provide to the a plaintiff filed a motion for proceedings supplemen-contrary, the statutory procedure set forth in section tary in Florida to collect on a foreign judgment56.29 controls. See Fla. R. Civ. P. 1.010 (providing against Boats Express that had become enforceable inthat the civil "rules apply to all ... special statutory Florida. The plaintiff sought to implead the presidentproceedings in the circuit courts" and that "[t]he and sole shareholder of Boats Express, and the trialform, content, procedure, and time for pleading in all court allowed him to be impleaded. The plaintiffspecial statutory proceedings shall be as prescribed never filed an amended pleading adding the new de-by the statutes governing the proceeding unless these fendant, and "nothing was ever served on [the newrules specifically provide to the contrary"); see also defendant]." Id Orders were entered requiring theBNP Paribas v. Wynne, 944 So.2d 1004, 1005 (Fla. new defendant to be examined and to present docu-4th DCA 2005) (holding that the special statutory ments and referring to him as a witness, but nothingproceeding of a garnishment " 'shall be controlled by informed the new defendant that a judgment could be



entered against him. A final judgment was enteredagainst him. This court reversed the f'mal judgmentagainst the new defendant because no complaint hadever been filed against him and he was therefore de-prived of an opportunity to be heard. Id. at 211. Thiscourt noted that "[t]he first actual step taken in a civilaction is the filing of a complaint." Id. (citing Fla. R.Civ. P. 1.050, which provides that an action is com-menced when the complaint is filed).

Boats Express, Inc. suggests that an impleadercomplaint must be filed and served on a new defen-dant. But in that case, the new defendant was neverserved with any document informing him that hecould be held liable for the judgment. Here, the newdefendants were personally served with a copy of theorder to show cause, as provided for in section56.29(3), and the order clearly informed the new de-fendants that the Estate was seeking to enforce ajudgment against them.

*4 The appellants also rely on Forman v. GreatAmerican Resorts of Florida, 929 So.2d 1089 (Fla.4th DCA 2006), which held that the third party hadnot been properly impleaded in the proceedings sup-plementary because although the plaintiff filed a mo-tion for proceedings supplementary, the plaintiff didnot file an impleader complaint and did not serve iton the third party. Id. at 1090. The court held that thethird party was only a witness and not a party to theaction and that the order directing the third party toappear was a discovery order not subject to appeal.Id. But Forman improperly relies on Florida Rule ofCivil Procedure 1.180, titled "Third-Party Practice,"which addresses third-party defendants who may bebrought in by a defendant as being liable to the de-fendant. As the Third District noted in Patterson v.Venne, 594 So.2d 331, 332 n. 4 (Fla. 3d DCA 1992),third-party practice is not invoked in proceedingssupplementary. Rather, the "additional defendant isan impleader defendant, not a third[-]party defendant.The original defendant-judgment debtor is not mak-ing a claim against [the new defendant]; instead theoriginal plaintiff is proceeding against [the new de-fendant] as a newly impleaded defendant." Il

plain the procedural process that should be followed.

In some cases, plaintiffs have impleaded judg-ment debtors as new defendants by filing impleadercomplaints. See, e.g., Rosenfeld, 630 So.2d at 1167;Warren, 522 So.2d at 980; Mickler v. Aaron, 490So.2d 1343 (Fla. 4th DCA 1986); Mitutovo Am.Corp. v. Suncoast Precision, Inc., No. 8:08-me-36-T-TBM, 2011 WL 2802938, at *1 (M.D.Fla. July 18,2011); Office Bldg., LLC, 2011 WL 1674963. But atthe most, those cases implicitly suggest, rather thanhold, that an impleader complaint must be filed. SeeRosenfeld, 630 So.2d at 1168 (holding that trial courthad subject matter jurisdiction over the proceedingssupplementary because judgment creditor filed animpleader complaint); Morningstar Healthcare, LLCv. Greystone & Co., No. 8:054V-949-T-MAP,2008 WL 1897590, at *2 (M.D.Fla. Apr.28, 2008)(granting motion for proceedings supplementary andordering judgment creditor to file complaint seekingto implead new defendant).

On the other hand, the impleading of new defen-dants has also occurred by motion. See, e.g., RegentBank, 636 So.2d at 886 (holding that nothing morewas required to implead new defendant than a motionto implead and the affidavit required under section56.29); Luskin v. Luskin, 616 So.2d 559, 561-62 (Fla.4th DCA 1993) (rejecting claim that new defendantswere not properly served or given adequate notice ofthe proceeding; new defendants were impleaded bymotion and the record showed that they were prop-erly served under rule 1.080(b) and were also givennotice of the trial date). In Pollizzi v. Paulshock,M.D., 52 So.3d 786 (Fla. 5th DCA 2010), the judg-ment creditor filed a motion to commence proceed-ings supplementary and to implead a new defendant,serving the motion on counsel for the new defen-dants. The matter proceeded to nonjury trial, and thetrial court entered judgment against the new defen-dants. On appeal, the Fifth District rejected the newdefendants' argument that the order violated theirright to due process, finding that the new defendantshad received adequate notice and an opportunity todefend. Id. at 788-89.

The appellants also rely on Machado, 544 So.2d *5 In the Fifth District's decision in Exceletech,at 1062, but Machado only states that a new defen- Inc. v. Williams, 579 So.2d 850, 852-53 (Fla. 5thdant must be fully impleaded and brought into the DCA 1991), approved in its entirety by the supremecase as an actual party and given a full and fair op- court, 597 So.2d 275, the Fifth District stated that anportunity to present his or her claims. It does not ex- impleaded defendant is not entitled to more than fair



notice of the allegations and the opportunity to pre- 1.100(a), 1.110, 1.180. The appellants do notsent its case. rely on Florida Rule of Civil Procedure

1.110, which provides the following:

[F]air notice of the allegations by [the plaintiff] inseeking to collect on his judgment was afforded to (h) Subsequent Pleadings. When the na-[the new defendant] and it was given the opportu- ture of an action permits pleadings subse-nity to present its case at a hearing before an im- quent to final judgment and the jurisdic-partial decision maker. It was entitled to no more. tion of the court over the parties has notInsofar as due process is concerned[,] the form terminated, the initial pleading subsequentwhich is utilized to notify the third party defendant to final judgment shall be designated aof the creditor's allegations, whether an order to supplemental complaint or petition. Theshow cause or a third party complaint, is immate- action shall then proceed in the samerial. manner and time as though the supple-

mental complaint or petition were the ini-Id. at 852-53. tial pleading in the action, including the

issuance of any needed process. This sub-

Further, in the federal case that remanded the in- division shall not apply to proceedingsstant case back to state court, the district court noted that may be imtiated by motion underthat "[a] supplemental proceeding [under section these rules.56.291 contemplates no complaint, no cause of ac-tion, no counter-claim, no finding of personal liability While this rule might appear to addressin either contract or tort, and no personal judgment the situation at hand, the Committee Notesagainst an impleaded party." Estate of Jackson v. to the rule provide the following:Ventas Realtv, Ltd. P'ship, 812 F.Supp.2d 1306, 1310(M.D.Fla.2011) (emphasis added); see also Gen. Subdivision (h) is added to cover a situa-Trading Inc. v. Yale Materials Handling Corp., 119 tion usually arising in divorce judgmentF.3d 1485, 1496 n. 22 (1lth Cir.1997) (noting that a modifications, supplemental declaratorysummons and a complaint are not required to exer- relief actions, or trust supervision. Whencise personal jurisdiction over a new defendant in any subsequent proceeding results in aproceedings supplementary). pleading in the strict technical sense under

rule 1.100(a), response by opposing par-IV. Conclusion ties will follow the same course as though

In conclusion, there is no requirement in the civil the new pleading were the initial pleadingrules that an impleader complaint be filed with proc- in the action. The time for answering andess served on the new defendant in order to obtain authority for defenses under rule 1.140personal jurisdiction over the new defendant in pro- will apply. The last sentence exempts postceedings supplementary. In this case, the Estate prop- judgment motions under rules 1.480(c),erly followed the procedure set forth in section 56.29. 1.530, and 1.540, and similar proceedingsTherefore, the trial court did not lack personal juris- from its purview.diction over the appellants on the basis of insufficientservice of process. Accordingly, we affirm the order FN2. The procedure laid out in sectiondenying the appellants' motion to dismiss. 56.29(2) is consistent with Florida Rule of

Civil Procedure 1.250(c), which generallyAffirmed. provides that "[p]arties may be added by or-

der of court on [the court's] own initiative orLaROSE and CRENSHAW, JJ., Concur. on motion of any party at any stage of the

action and on such terms as are just." SeeExceletech, 597 So.2d at 276 (suggesting

FNI. The rules cited by the appellants do that rule 1.250(c)is proper method by whichnot address this situation. See generally Fla. to join parties in proceedings supplemen-R. Civ. P. 1.070(a), 1.070(e), 1.080' tary).

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Fla.App. 2 Dist.,2012.Fundamental Long Term Care Holdings, LLC v. Es-tate of Jackson ex rel. Jackson-Platts--- So.3d ----, 2012 WL 5935678 (Fla.App. 2 Dist.),37 Fla. L. Weekly D2718

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