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Protection Handbook > State
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> Varveris
v Carbonell
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773 So. 2d 1275;
26 Fla. L. Weekly D 79
MARIE LYDIA VARVERIS, Appellant,
vs. ALBERTO M. CARBONELL, P.A., Appellee.
CASE NO. 3D00-129
COURT OF APPEAL OF FLORIDA,
THIRD DISTRICT
773 So. 2d 1275;26 Fla. L.
Weekly D 79
December 27, 2000, Opinion
Filed
PRIOR HISTORY: [*1]
An appeal from the Circuit Court of Miami-Dade
County, Juan Ramirez, Jr., and Ronald Dresnick,
Judges. LOWER TRIBUNAL NO. 94-10528.
COUNSEL: Segredo
& Weisz and Michel O. Weisz, for appellant.
Alberto M. Carbonell, for appellee.
JUDGES:
Before COPE, GODERICH and SHEVIN, JJ.
OPINIONBY: SHEVIN
OPINION:
ON MOTIONS FOR REHEARING/CLARIFICATION
SHEVIN, Judge.
We deny the motions for rehearing/clarification,
but issue the following corrected opinion:
Marie Varveris appeals a judgment
entered in proceedings supplementary to execution
directing the sale of her property. We reverse
the judgment.
Alberto Carbonell, P.A., sought
to recover on a money judgment entered against
Alexander Varveris, Marie's husband. In proceedings
supplementary, § 56.29, Fla. Stat. (1999),
Carbonell sought to implead Marie in order to
set aside as fraudulent transfers of certain
real property to Marie. See §§ 726.101-.112,
Fla. Stat. (1999). Carbonell, however, was not
able to serve Marie. Although service of process,
noticing Marie of the proceedings to set aside
the transfers, was not effected, the [*2] trial
court conducted an evidentiary hearing, impleaded
Marie as a defendant, and found that the transfers
were fraudulent. Based on that finding, the
court ordered the properties sold to satisfy
the outstanding judgment.
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On appeal, Marie
correctly argues that the judgment may not stand
because she was not properly brought before
the court as an impleader defendant. It is well-settled
law that no rights of [impleader defendants]
should be adjudged to be affected, impaired,
or finally cut off by any order of court made
in such proceedings supplementary to execution,
unless such third parties have been first fully
impleaded and brought into the case as actual
parties to the proceeding, and, as such, given
an opportunity to fully and fairly present their
claims as parties entitled to a full and fair
hearing after the making up of definite issues
to be tried, and not as mere spectators or bystanders
in the cause.
Machado v. Foreign Trade, Inc., 544 So. 2d 1061,
1061 (Fla. 3d DCA 1989)(quoting Ryan's Furniture
Exchange v. McNair, 120 Fla. 109, 120, 162 So.
483, 487 (1935)); 24A Executions Fla. Jur. 2d
§ 108 (1995 & Supp. 2000). See State
ex rel. Phoenix Tax Title Corp. v. Viney, 120
Fla. 657, 163 So. 57 (1935); [*3] see also Exceletech,
Inc. v. Williams, 597 So. 2d 275 (Fla. 1992);
Patterson v. Venne, 594 So. 2d 331 (Fla. 3d
DCA 1992); Junca v. Marine Dealers Unlimited
Corp., 706 So. 2d 326 (Fla. 4th DCA 1997). Here,
it is undisputed that Marie was not served personally
or by a substituted method sufficient to confer
jurisdiction upon the court. Thus, the judgment
must be reversed as she was not properly brought
into the proceedings supplementary as a party.
Marie's contention that reversal
of the judgment mandates vacation of the temporary
injunction is without merit. Pursuant to section
726.108, the judgment creditor may be afforded
certain remedies against the asset subject to
the creditor's claim, including the entry of
provisional remedies, i.e., a temporary injunction.
The court may afford creditors a remedy such
as an injunction before personal service has
been effected. "As long ago as 1866, the
Florida Supreme Court wrote: 'It is clear that
in a suit in equity, upon the filing of the
bill, an injunction or other restraining order
may issue, if the same is prayed for, and this
before [process] has issued or been served.'"
Smith v. Knight, 679 So. 2d 359, 361 (Fla. 4th
DCA 1996) [*4] (footnote omitted)(quoting Thebaut
v. Canova, 11 Fla. 143, 163 (1866)). We agree
with Marie, however, that the trial court should
enter an order setting an appropriate bond.
Accordingly, we reverse the
judgment and remand the cause so that the court
may enter a bond order and so that Carbonell
may serve Marie with proper pleadings enabling
her to respond in the proceeding. If she is
evading service, there are methods of service
that would enable Carbonell to proceed despite
such actions on her part.
Reversed and remanded.
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