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, by and through CATHY JACKSON-PLATTS f/k/a CATHERINE WHATLEY, Personal Representative, et al., Respondents.

ON DISCRETIONARY REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL

PETITIONERS' BRIEF ON JURISDICTION

Matthew Triggs Lisa Markofsky PROSAKUER ROSE LLP 2255 Glades Road, Suite 421 A Boca Raton, FL 33431 Telephone: 561-241-7400 Facsimile: 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...... 5 ARGUMENT ...... 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 a Critical Need to Unify the Widespread Inconsistencies in Florida Case Law...... 8 CONCLUSION...... 9 CERTIFICATE OF SERVICE...... 11 CERTIFICATE OF COMPLIANCE WITH FONT STANDARD ...... 12

1 TABLE OF AUTHORITIES Page(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 Proceedings Supplementary: Procedural and Constitutional Problems Facing Impleaded Third 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 ofthe Florida Statutes 1 In those proceedings, the Estate ofJuanita 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 postjudgment 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 of Civil 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 ofthis Court and a decision ofthe 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 ofthese

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 Rule 1.250(c). However, personal jurisdiction over the newly-added party is only obtained after proper service of a summons and complaint.

3 The Second District was ofthe view that this Court's dicta in Exceletech, "agree[ing] entirely" with the Fifth District's majority opinion in Exceletech I, 579 So. 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 procedure affirmed by the Opinion. When read in context, however, it is clear that what this Court meant in Exceletech was that Williams properly followed the procedure for adding parties to an existing case because parties may be added by motion and order granting the same. See 597 So. 2d at 276 (citing Rule 1.250(c)). The further question of whether a show cause procedure is proper to obtain personal jurisdiction over a new defendant to adjudicate personal liability against that defendant after the court has permitted the addition ofthe defendant to the case was 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 Because There is a Critical Need to Unify the Widespread Inconsistencies 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 ofthe 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 ofthe 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 LLP Counselfor Fundamental Long Term Care Holdings, LLC, Murray Forman, and Leonard Grunstein 2255 Glades Road, Suite 421 Atrium Boca Raton, FL 33431-7360 Telephone: (561) 241-7400 Facsimile: (561) 241-7145

By: Matthew Triggs Florida Bar No. 0865745 Primary: [email protected] Secondary: [email protected] Lisa Markofsky Florida Bar No. 0016673 Primary: [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. Stuart Markman, Esq. Primary: [email protected] Primary: [email protected] Secondary: [email protected] Secondary: [email protected] Tertiary: [email protected] Kristin A. Norse, Esq. Isaac R. Ruiz-Carus, Esq. Primary: [email protected] Primary: Secondary: [email protected] [email protected] Robert W. Ritsch, Esq., Of Counsel Secondary: Primary: [email protected] [email protected] Secondary: [email protected] Joanna Greber, Esq. KYNES, MARKMAN & Primary: [email protected] FELMAN, P.A. Secondary: [email protected] P.O. Box 3396 WILKES & MCHUGH, PA Tampa, FL 33601-3396 1 N. Dale Mabry Highway, Suite 800 Tampa, FL 33609 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 30k70(1) k. Relating to parties or process. Most Cited Cases NOTICE: THIS OPINION HAS NOT BEEN RE- LEASED FOR PUBLICATION IN THE PERMA- Appellate court had jurisdiction to review nonfi- NENT LAW REPORTS. UNTIL RELEASED, IT IS nal order impleading third parties, where the im- SUBJECT TO REVISION OR WITHDRAWAL. pleaded parties challenged personal jurisdiction. West's F.S.A. R.App.P.Rule 9.130(a)(3)(C)(i). District Court of Appeal ofFlorida, Second District. J2J Execution 161 @358 FUNDAMENTAL LONG TERM CARE HOLD- INGS, LLC, Murray Forman, and Leonard Grunstein, 161 Execution Appellants, 161XIV Supplementary Proceedings v. 161k358 k. Nature and purpose of remedy. The ESTATE of Juanita Amelia JACKSON, by and Most Cited Cases through Cathy JACKSON-PLATTS f/k/a Catherine Whatley, as Personal Representative ofthe Estate of "Proceedings supplementary" are special statu- Juanita Amelia Jackson, Appellee. tory proceedings subsequent to judgment to aid a judgment creditor in collecting his judgment against No. 2D12-394. the judgment debtor. West's F.S.A. § 56.29. Nov. 28, 2012. JR Execution 161 @371 Background: After estate obtained a default judgment for $110 million against defendants in nursing 161 Execution home litigation, estate moved to implead sixteen new 161XIV Supplementary Proceedings defendants. Three of the new defendants moved to 161k371 k. Jurisdiction and authority of court dismiss. The Circuit Court, Polk County, J. Michael orjudge. Most Cited Cases McCarthy, J., denied motion. Defendants appealed. Execution 161 @387 Holding: The District Court of Appeal, Morris, J., held that estate was not required to file an impleader complaint and serve process with that complaint in 161 Execution order to commence proceedings supplementary 161XIV Supplementary Proceedings against new third parties. 161k385 Proceedings for Examination of Third Persons 161k387 k. Pleadings or affidavits and par- Affirmed. ties. Most Cited Cases

West Headnotes Execution 161 @389 jl] Appeal and Error 30 @70(1) 161 Execution 161XIV Supplementary Proceedings 30 Appeal and Error 161k385 Proceedings for Examination of 30III Decisions Reviewable Third Persons 30III(D) Finality of Determination 161k389 k. Service of order and affidavit. 30k67 Interlocutory and Intermediate Deci- Most Cited Cases sions 30k70 Nature and Scope of Decision Estate was not required to file an impleader

--- 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 in tion." The trial court then entered a written order of order to commence proceedings supplementary denial, which the appellants now appeal. against new third parties following a $110 million default judgment against defendants in nursing home II. Jurisdiction litigation, and thus, the trial court did not lack per- Dl] The Estate claims that the nonfinal order may sonal jurisdiction over the third parties on the basis of not be appealed based on cases which generally hold insufficient service of process, where estate followed that an order impleading a third party in proceedings the procedure set forth in rule regarding proceedings supplementary is not appealable. See Maryland Cas. supplementary. West's F.S.A. § 56.29. Co. v. Century Constr. Corp., 656 So.2d 611 (Fla. I st DCA 1995); Sverdahl v. Farmers & Merchs. Sav. Matthew Triegs, C. Sanders McNew, and Andrew L. Bank, 582 So.2d 738 (Fla. 4th DCA 1991); Machado Hoffman of Proskauer Rose LLP, Boca Raton, for v. Foreign Trade, Inc., 544 So.2d 1061 (Fla. 3d DCA Appellants. 1989); Warren v. Se. Leisure Sys., Inc., 522 So.2d 979 (Fla. 1st DCA 1988). However, in those cases, Isaac R. Ruiz-Carus and Joanna M. Greber of Wilkes the impleaded parties never sought to dismiss the & McHugh, P.A., Tampa, for Appellee. proceedings supplementary on the basis of lack of personal jurisdiction. See Sverdahl, 582 So.2d at 740; MORRIS, Judge. Machado, 544 So.2d at 1062. In fact, in Warren the *1 Appellants-Fundamental Long Term Care court noted that the impleaded parties never chal- Holdings, LLC, Murray Forman, and Leonard Grun- lenged personal jurisdiction in their motions to dis- stein--appeal a nonfinal order denying their motion miss and were therefore "not entitled to review at this to dismiss proceedings supplementary initiated stage ofthe proceedings." 522 So.2d at 981. Here, the against them by the estate of Juanita Jackson (the nonfinal order determines personal jurisdiction and Estate). In denying the motion to dismiss, the trial we therefore have jurisdiction to review it. See Flm court rejected appellants' argument that the trial court R.App. P. 9.130(a)(3)(C)(i); see also Nat'l Lake lacked personal jurisdiction because the appellants Devs., Inc. v. Lake Tippecanoe Owners Ass'n, 417 never received service of process with an impleader So.2d 655, 657 (Fla.1982) (holding that " 'the term complaint in the proceedings supplementary. We "jurisdiction of the person" refers to service of proc- affinn the order on appeal and write to clarify the law ess or the applicability of the long[-]arm statute to on this issue. nonresidents' " (quoting and approving Nat'l Lake Devs., Inc. v. Lake Tippecanoe Owners Ass'n, 395 So.2d 592, 593 (Fla. 2d DCA 1981))). I. Background After settling with eleven defendants in nursing home litigation, the Estate obtained a default judg- III. Analysis ment for $110 million against two remaining defen- *2 On appeal, the appellants argue that proceed- dants. The Estate then filed motions to implead six- ings supplementary under section 56.29 are governed teen new defendants, including the three appellants in by the Florida Rules of Civil Procedure and that the this appeal, in proceedings supplementary under rules require that a newly impleaded defendant be section 56.29, Florida Statutes (2010). The trial court served with a summons and complaint in order for entered orders granting the motions to implead and the court to have personal jurisdiction over that ordering the new defendants to show cause why they newly impleaded defendant. In response, the Estate should not be held liable for the judgments. The ap- claims that there is no requirement that a plaintiff file pellants moved to dismiss, alleging among other an impleader complaint and serve process with that things that the trial court lacked personal jurisdiction complaint in order to commence proceedings sup- over them because the Estate failed to serve them plementary against new third parties. The Estate with a summons and an impleader complaint. At the claims that the trial court properly denied the appel- conclusion of a hearing, the trial court orally denied lants' motion to dismiss because the Estate followed the appellants' motion on the basis that "[t]his action the procedure set forth in section 56.29. has been filed pursuant to section 56.29. It's a postjudgment action. Pursuant to that statute the motion {2] Proceedings supplementary under section to dismiss will be denied. This court has jurisdic- 5_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) (quoting v. TPI Int'l j1irways, 630 So.2d 1167, 1169 (Fla. 4th Federated Stores Realty, Inc. v. Burnstein, 392 So.2d DCA 1993). In order to initiate proceedings supple- 573, 574 (Fla. 4th DCA 1980))); Crocker v. Diland mentary, 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 if averring that the judgment is valid and outstanding. § there is some aspect of a special statutory procedure 56.29(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 impleader 3, 2011). "The statutory procedure was designed to complaint and serve process of that complaint on the avoid the necessity of the judgment creditor initiating new third party. FN1 Therefore, we must look to the an entirely separate action for a creditor's bill." procedure in section 56.29. Section 56.29 directs a Regent Bank v. Woodcox, 636 So.2d 885, 886 (Fla, plaintiff to file an affidavit attesting that the plaintiff 4th DCA 1994); see Office Blda, LLC, 2011 WL holds an unsatisfied judgment as well as a motion to 1674963, at *3. require the defendant in execution to appear before the court. 6 56.29(l), (2)." The trial court shall then In 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 "order this court noted that motions are commonly used shall be served in a reasonable time before the date of also. This court suggested that once entitlement to the the examination in the mannerprovidedfor service of proceedings has been established by this process, summons or may be served on such defendant or his third parties not before the court may be brought into or her attorney as providedfor service ofpapers in the proceedings by impleader. Id. at 1037-38. This the rules of civil procedure." § 56.29(3) (emphasis court did not discuss the process by which a new de- added). fendant should be impleaded. Although the statutory procedure above seems The 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 several plementary under section 56.29. See Exceletech, Inc. cases in support of their argument that an impleader v. Williams, 597 So.2d 275 (Fla.1992) (applying the complaint must be filed with process served on the rules and holding that the rules do not require a new defendants in order for the trial court to have judgment 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 judgment 56.29 controls. See Fla. R. Civ. P. 1.010 (providing against Boats Express that had become enforceable in that the civil "rules apply to all ... special statutory Florida. The plaintiff sought to implead the president proceedings in the circuit courts" and that "[t]he and sole shareholder of Boats Express, and the trial form, content, procedure, and time for pleading in all court allowed him to be impleaded. The plaintiff special 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 new rules specifically provide to the contrary"); see also defendant]." Id Orders were entered requiring the BNP 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 nothing proceeding of a garnishment " 'shall be controlled by informed the new defendant that a judgment could be

--- So.3d ----, 2012 WL 5935678 (Fla.App. 2 Dist.), 37 Fla. L. Weekly D2718 (Cite as: 2012 WL 5935678 (Fla.App. 2 Dist.)) entered against him. A final judgment was entered plain the procedural process that should be followed. against him. This court reversed the f'mal judgment against the new defendant because no complaint had In some cases, plaintiffs have impleaded judg- ever been filed against him and he was therefore de- ment debtors as new defendants by filing impleader prived of an opportunity to be heard. Id. at 211. This complaints. See, e.g., Rosenfeld, 630 So.2d at 1167; court noted that "[t]he first actual step taken in a civil Warren, 522 So.2d at 980; Mickler v. Aaron, 490 action is the filing of a complaint." Id. (citing Fla. R. So.2d 1343 (Fla. 4th DCA 1986); Mitutovo Am. Civ. P. 1.050, which provides that an action is com- Corp. v. Suncoast Precision, Inc., No. 8:08-me-36- menced when the complaint is filed). T-TBM, 2011 WL 2802938, at *1 (M.D.Fla. July 18, 2011); Office Bldg., LLC, 2011 WL 1674963. But at Boats Express, Inc. suggests that an impleader the most, those cases implicitly suggest, rather than complaint must be filed and served on a new defen- hold, that an impleader complaint must be filed. See dant. But in that case, the new defendant was never Rosenfeld, 630 So.2d at 1168 (holding that trial court served with any document informing him that he had subject matter jurisdiction over the proceedings could be held liable for the judgment. Here, the new supplementary because judgment creditor filed an defendants were personally served with a copy of the impleader complaint); Morningstar Healthcare, LLC order to show cause, as provided for in section v. Greystone & Co., No. 8:054V-949-T-MAP, 56.29(3), and the order clearly informed the new de- 2008 WL 1897590, at *2 (M.D.Fla. Apr.28, 2008) fendants that the Estate was seeking to enforce a (granting motion for proceedings supplementary and judgment against them. ordering judgment creditor to file complaint seeking to implead new defendant). *4 The appellants also rely on Forman v. Great American Resorts of Florida, 929 So.2d 1089 (Fla. On the other hand, the impleading of new defen- 4th DCA 2006), which held that the third party had dants has also occurred by motion. See, e.g., Regent not been properly impleaded in the proceedings sup- Bank, 636 So.2d at 886 (holding that nothing more plementary because although the plaintiff filed a mo- was required to implead new defendant than a motion tion for proceedings supplementary, the plaintiff did to implead and the affidavit required under section not file an impleader complaint and did not serve it 56.29); Luskin v. Luskin, 616 So.2d 559, 561-62 (Fla. on the third party. Id. at 1090. The court held that the 4th DCA 1993) (rejecting claim that new defendants third party was only a witness and not a party to the were not properly served or given adequate notice of action and that the order directing the third party to the proceeding; new defendants were impleaded by appear was a discovery order not subject to appeal. motion and the record showed that they were prop- Id. But Forman improperly relies on Florida Rule of erly served under rule 1.080(b) and were also given Civil Procedure 1.180, titled "Third-Party Practice," notice of the trial date). In Pollizzi v. Paulshock, which addresses third-party defendants who may be M.D., 52 So.3d 786 (Fla. 5th DCA 2010), the judg- brought in by a defendant as being liable to the de- ment creditor filed a motion to commence proceed- fendant. As the Third District noted in Patterson v. ings supplementary and to implead a new defendant, Venne, 594 So.2d 331, 332 n. 4 (Fla. 3d DCA 1992), serving the motion on counsel for the new defen- third-party practice is not invoked in proceedings dants. The matter proceeded to nonjury trial, and the supplementary. Rather, the "additional defendant is trial court entered judgment against the new defen- an impleader defendant, not a third[-]party defendant. dants. On appeal, the Fifth District rejected the new The original defendant-judgment debtor is not mak- defendants' argument that the order violated their ing a claim against [the new defendant]; instead the right to due process, finding that the new defendants original plaintiff is proceeding against [the new de- had received adequate notice and an opportunity to fendant] as a newly impleaded defendant." Il defend. 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. 5th dant must be fully impleaded and brought into the DCA 1991), approved in its entirety by the supreme case as an actual party and given a full and fair op- court, 597 So.2d 275, the Fifth District stated that an portunity to present his or her claims. It does not ex- impleaded defendant is not entitled to more than fair

--- So.3d ----, 2012 WL 5935678 (Fla.App. 2 Dist.), 37 Fla. L. Weekly D2718 (Cite as: 2012 WL 5935678 (Fla.App. 2 Dist.)) notice of the allegations and the opportunity to pre- 1.100(a), 1.110, 1.180. The appellants do not sent its case. rely on Florida Rule of Civil Procedure 1.110, which provides the following: [F]air notice of the allegations by [the plaintiff] in seeking 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 not Insofar as due process is concerned[,] the form terminated, the initial pleading subsequent which is utilized to notify the third party defendant to final judgment shall be designated a of the creditor's allegations, whether an order to supplemental complaint or petition. The show cause or a third party complaint, is immate- action shall then proceed in the same rial. manner and time as though the supplemental 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 proceedings stant case back to state court, the district court noted that may be imtiated by motion under that "[a] supplemental proceeding [under section these rules. 56.291 contemplates no complaint, no cause of action, no counter-claim, no finding of personal liability While this rule might appear to address in either contract or tort, and no personal judgment the situation at hand, the Committee Notes against 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 judgment F.3d 1485, 1496 n. 22 (1lth Cir.1997) (noting that a modifications, supplemental declaratory summons and a complaint are not required to exer- relief actions, or trust supervision. When cise personal jurisdiction over a new defendant in any subsequent proceeding results in a proceedings 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 pleading rules that an impleader complaint be filed with proc- in the action. The time for answering and ess served on the new defendant in order to obtain authority for defenses under rule 1.140 personal jurisdiction over the new defendant in pro- will apply. The last sentence exempts post ceedings 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 proceedings Therefore, the trial court did not lack personal juris- from its purview. diction over the appellants on the basis of insufficient service of process. Accordingly, we affirm the order FN2. The procedure laid out in section denying the appellants' motion to dismiss. 56.29(2) is consistent with Florida Rule of Civil Procedure 1.250(c), which generally Affirmed. provides that "[p]arties may be added by order of court on [the court's] own initiative or LaROSE and CRENSHAW, JJ., Concur. on motion of any party at any stage of the action and on such terms as are just." See Exceletech, 597 So.2d at 276 (suggesting FNI. The rules cited by the appellants do that rule 1.250(c)is proper method by which not address this situation. See generally Fla. to join parties in proceedings supplemen- R. Civ. P. 1.070(a), 1.070(e), 1.080' tary).

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

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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