Boats Express, Inc. v. Thackeray

978 So. 2d 206, 2008 Fla. App. LEXIS 4327, 2008 WL 782880
CourtDistrict Court of Appeal of Florida
DecidedMarch 26, 2008
DocketNo. 2D06-5713
StatusPublished
Cited by1 cases

This text of 978 So. 2d 206 (Boats Express, Inc. v. Thackeray) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boats Express, Inc. v. Thackeray, 978 So. 2d 206, 2008 Fla. App. LEXIS 4327, 2008 WL 782880 (Fla. Ct. App. 2008).

Opinion

ALTENBERND, Judge.

Boats Express, Inc., d/b/a Boats Express Corp., and Gregory D. Hutchens appeal an amended final order on proceedings supplementary. The final order enters a judgment in favor of Mark Thackeray and against Mr. Hutchens in the amount of $45,975.42. This judgment was entered on the theory that Mr. Hutchens, the president of Boats Express, fraudulently transferred assets of Boats Express to another corporation to prevent Mr. Thackeray from garnishing these assets to satisfy a judgment against Boats Express. To the extent that a judgment was entered against Mr. Hutchens on this theory when no complaint alleging such a theory had ever been filed, or served on him and his appearance at an examination on proceedings supplementary was merely as a witness, we conclude that the judgment against him must be reversed.

Our holding in this case is relatively simple and based on well-established principles of due process. The proceedings in the trial court, on the other hand, were not simple and involved some very unusual procedures. It is difficult to explain the trial court’s error without first describing the unusual procedural steps that led' to the error.

I. THE PROCEEDINGS TO ENFORCE A FOREIGN JUDGMENT

In August 1997, Boats Express entered into a written contract to move Mr. Thackeray’s boat from a marina in Georgia to a marina in Cincinnati, Ohio. Boats Express agreed to provide this service in consideration for a payment of $896. Apparently, Boats Express failed to fulfill this contract, and Mr. Thackeray arranged for someone else to transport the vessel. Thereafter, Mr. Thackeray sued Boats Express in Ohio state court.

Boats Express made an unsuccessful attempt to remove the action to federal court. When the federal court remanded the action to state court, Boats Express apparently did not attend the trial and a judgment was entered against it on January 27, 2000, for $45,975.42, which included awards of compensatory damages, punitive damages, and attorneys’ fees. Despite [208]*208various challenges in Ohio by Boats Express, our record contains nothing suggesting that the judgment was ever vacated, modified, or set aside.

Pursuant to the Florida Enforcement of Foreign Judgments Act, §§ 55.501-509, Fla. Stat. (2000), Mr. Thackeray filed the Ohio final judgment with the clerk of the circuit court in Pinellas County in March 2000, where Boats Express was located. The clerk then provided notice of the filing to Boats Express pursuant to section 55.505(2). In this process, the clerk assigned the judgment a new case number, 00-2120CI-HNO, with the style, “Mark Thackeray v. Boats Express Corp.”

The Florida Enforcement of Foreign Judgments Act is based on the uniform act1 and contemplates that a foreign judgment will become equivalent to a Florida judgment for enforcement purposes after notice to the judgment debtor and the expiration of a thirty-day waiting period. See §§ 55.503, .505. If a judgment debtor wishes to challenge such a judgment, it may file “an action contesting the jurisdiction of the court which entered the foreign judgment or the validity of the foreign judgment” and record “a lis pendens directed toward the foreign judgment.” § 55.509(1).

There is little guidance in the law concerning the nature of the action to be filed by a judgment debtor who wishes to challenge such a foreign judgment. One leading commentator has suggested a form in which the judgment debtor is identified as the plaintiff and seeks a judgment declaring the foreign judgment unenforceable and staying its enforcement. Henry P. Trawiek, Jr., Florida Practice and Procedure Forms § 4-76.2, at 243^4 (2007 ed.). The form suggested by Florida Practice and Procedure Forms assumes that the action to challenge a foreign judgment will be given its own separate case number.2

In this case, Boats Express filed a timely “action to contest the jurisdiction of the Ohio Court,” but it filed this action in the proceeding that the clerk had created to provide notice of the filing of the foreign judgment. It did not describe it as a counterclaim. As a result, the pleading is odd because the “defendant” is filing an action against the “plaintiff.” The “plaintiff’ answered the action, and the “defendant” filed a reply to the answer. We suspect that this procedure was as confusing for the trial court as it was for this court.

In July 2000, this case was considered by Judge Crockett Farnell. The order entered as a result of that hearing is entitled “Order Denying Dismissal for Lack of Subject Matter Jurisdiction.” The order recites that the case came on for hearing on the “Defendant’s action to contest the jurisdiction of the Ohio Court.” The order held that the Ohio court had jurisdiction and ruled: “Dismissal of this cause for lack of jurisdiction is denied.” Following years of continuing disputes, Judge Dem-ers entered a similar order in December 2005 declining to dismiss the cause for lack of subject matter jurisdiction. Despite their titles, these orders are not declining to dismiss “the cause” filed by Boats Express, but rather they are declining to “dismiss” the foreign judgment.

The parties all seem to believe that the one or both of the orders denying “motions to dismiss” were final orders in the action [209]*209to contest the enforceability of the foreign judgment. This would appear to have been the intent of the circuit court, even though the orders on the surface appear to be nonfinal orders. There is no issue on appeal challenging this procedure, and we have no basis to review these orders. Nevertheless, these orders have generated some of the confusion that followed. A procedure that resulted in a recorded final judgment as suggested by Trawiek would have been helpful.

When a judgment debtor files a timely action challenging the foreign judgment and records a lis pendens, the enforceability of the foreign judgment does not commence at the expiration of the thirty-day period. ' See § 55.509(1). Although Florida’s version of the statute is not identical to the uniform statute and the differences have caused some confusion, the stay of enforcement created by the filing of such an action and the lis pendens is not intended to last indefinitely, but normally lasts at least until the circuit court conducts a hearing to determine if grounds exist to stay enforcement and to decide what security may be appropriate to maintain the stay. See § 55.509(2); Expedia, Inc. v. McKenney’s, Inc., 611 So.2d 98 (Fla. 1st DCA 1992); SCG Travel, Inc. v. Westminster Fin. Corp., 583 So.2d 723 (Fla. 4th DCA 1991).

The hearings conducted in this case were not held pursuant to section 55.509(2) to modify the stay created by the lis pen-dens. Because the trial court entered only the orders described above, no final judgment was ever recorded that expressly dissolved the lis pendens. Likewise, without a Florida judgment expressly domesticating the Ohio judgment, it does not appear that any execution ever issued in Florida to facilitate collection of the Ohio judgment. See Fla. R. Civ. P. 1.550.

II. THE PROCEEDINGS SUPPLEMENTARY

In August 2004, Mr. Thackeray filed a motion for proceedings supplementary in case number 00-2120CI-HNO, alleging only the basic requirements of section 56.29(1), Florida Statutes (2004). The motion and supporting affidavit claim that the sheriff held an unsatisfied execution that was valid and outstanding.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fundamental Long Term Care Holdings, LLC v. Estate of Jackson ex rel. Jackson-Platts
110 So. 3d 6 (District Court of Appeal of Florida, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
978 So. 2d 206, 2008 Fla. App. LEXIS 4327, 2008 WL 782880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boats-express-inc-v-thackeray-fladistctapp-2008.