2D10-2974 / B & I Contractors, Inc. v. Mel Re Construction Mgmt.

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State: Florida

Court: Florida Southern District Court

Docket No: 2D10-2974

Case Date: 08/03/2011

Plaintiff: 2D10-2974 / B & I Contractors, Inc.

Defendant: Mel Re Construction Mgmt.

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
B & I CONTRACTORS, INC.,                                                                    )
)
Appellant,                                                                                  )
)
v.                                                                                          )   Case No. 2D10-2974
)
MEL RE CONSTRUCTION                                                                         )
MANAGEMENT, f/k/a MEL RE                                                                    )
CONSTRUCTION, INC.; and BELLA                                                               )
CASA, LLC,                                                                                  )
)
Appellees.                                                                                  )
)
Opinion filed August 3, 2011.
Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Lee County;
G. Keith Cary, Judge.
Robert L. Donald of Law Office of
Robert L. Donald, Fort Myers, for
Appellant.
Robert A. Stok and Daniel M. Brennan of
Stok & Associates, P.A., Aventura, for
Appellees.
ALTENBERND, Judge.
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, nonevidentiary hearing addressing this

postjudgment 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
1This court has treated this appeal as an appeal of a nonfinal order
entered after final judgment under Florida Rule of Appellate Procedure 9.130(a)(4).   As
such, we have no official record and are relying on a relatively small appendix.   We
base our description of the "facts" primarily on the allegations in the motion and the
representations of counsel in this matter.
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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 order 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
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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
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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 (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 impleader,
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.
2We express no opinion on the relationship between the treatment of
fraudulent conveyances under this statute and the rights and obligations concerning
fraudulent transfers established more recently in the Uniform Fraudulent Transfer Act.
See §§ 726.101-.201, Fla. Stat. (2009).
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