Impleading third-party defendants in proceedings supplementary
Proceedings supplementary are powerful procedural mechanisms for judgment creditors with unsatisfied judgments. (See previous blog post, Florida Proceedings Supplementary 101.) However, properly impleading a potential third-party defendant under section 56.29, Florida Statutes, is a technical process that requires close attention to detail. This blog post provides a step-by-step introduction to impleading third-party defendants in proceedings supplementary.
Who Can be Impleaded?
A judgment creditor can implead two types of third parties. First, any person in possession of the judgment debtor’s property that can be used to satisfy the judgment—i.e. “not exempt” property—may be impleaded in proceedings supplementary. Fla. Stat. § 56.29(2) (2016). Second, any person who owes the judgment debtor a nonexempt debt or obligation may be impleaded in proceedings supplementary. Id.
What is the Process?
Prior to 2016, Florida courts inconsistently applied section 56.29, which caused confusion on how to implead third parties in proceedings supplementary. However, recent amendments to the statute have clarified the process. In general, the proper method to join a third party in proceedings supplementary is to implead the party. Exceletech, Inc. v. Williams, 597 So. 2d 275, 276 (Fla. 1992). Additionally, the requirements contained in Florida Rule of Civil Procedure 1.250(c) for impleading a party before a judgment are the same for impleading a party in proceedings supplementary.
To initiate proceedings supplementary, the judgment creditor must file a motion and an affidavit in the court that the original action arose. See Fla. Stat. § 56.29(1). Specifically, the motion must identify the possible third-party defendant and declare a belief that the third party has assets or owes obligations to the judgment debtor that should be used to satisfy the judgment. See id.; Exceletech, Inc, 597 So. 2d at 276.
Additionally, the affidavit must include: (1) information on the judgment creditor and on the unsatisfied judgment (e.g., the amount of the judgment); (2) information on the original action, including the name of the court that issued the judgment and the case number; and (3) a statement that the sheriff holds a writ of execution on a “valid and outstanding” money judgment. Id. However, it is worth noting that because the affidavit is a statutory requirement, but not a jurisdictional requirement, failure to file an affidavit may be waived by a failure to object. See, e.g., Sullivan v. Musella, 564 So. 2d 150, 151-52 (Fla. 2d DCA 1990).
The judgment creditor is entitled to proceedings supplementary as a matter of law once the motion and affidavit are filed. Accordingly, the court will thereafter order the third party identified in the judgment creditor’s motion to submit an affidavit with the court through a “notice to appear.” Fla. Stat. § 56.29(2). The third party’s affidavit must comply with section 56.16, Florida Statutes, by explaining the reason the property or debt identified in the judgment creditor’s motion and affidavit should not be used to satisfy the judgment. Id. Additionally, while the third party’s affidavit does not need to include legal defenses, it must include all factual defenses. Id.
However, liability is not implied merely because the third-party defendant has been impleaded in proceedings supplementary. Indeed, consistent with due process, the impleaded third party is afforded an opportunity to raise its defenses and protect its interest. Mejia v. Ruiz, 985 So. 2d 1109, 1112 (Fla. 3d DCA 2008). Therefore, once the third party has been successfully joined in the proceedings supplementary, the parties may conduct discovery as they normally would before trial under Florida Rule of Civil Procedure 1.560. See Patterson v. Venne, 594 So. 2d 331, 332 (Fla. 3d DCA 1992).
What Relief Can a Judgment Creditor Obtain?
After fulfilling the requirements of due process and conducting a sufficient hearing, the court may order any nonexempt property of the judgment debtor or obligation owed to the judgment debtor in the possession of an impleaded third-party defendant to be used to satisfy the outstanding judgment. Fla. Stat. § 56.29(6) (2016). Also, if the third-party defendant retains the property solely for purposes of delaying satisfaction of the judgment, the court may award an additional 20 percent of the value of the property in damages. Fla. Stat. § 56.18 (2016).
While proceedings supplementary are a powerful procedural mechanism, impleading a third party under section 56.29 is a technical process. However, successfully impleading a third party can be the difference between a judgment creditor getting paid and a judgment debtor getting left in the rain.
By: Charles B. Jimerson, Esq. and Daniel L. Buchholz, JD Candidate