SUSAN S. KENNEDY, Appellant,
RES-GA LAKE SHADOW, LLC, LAKE SHADOW LIMITED, LLC, AND WILLIAM G. KENNEDY, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Walton County. Thomas R.
E. McGill, III of Robert E. McGill, III, P.A., Destin, for
S. Bauman and Jeffrey L. Burns of Anchors Smith Grimsley,
Fort Walton Beach, for Appellee RES-GA Lake Shadow, LLC.
appearance for Appellee William G. Kennedy.
S. Kennedy appeals an order denying her motion to vacate a
writ of execution and sheriff's deed issued on her
Panhandle condominium. RES-GA Lake Shadow, LLC (RES-GA)
brought proceedings supplementary to execution related to a
money judgment against Ms. Kennedy's former husband.
Without impleading Ms. Kennedy into the case, RES-GA received
a writ of execution and sheriff's deed giving it a
one-half interest in a condominium that Ms. Kennedy had
previously been awarded in the divorce. We reverse for due
February 2014, RES-GA received a $5 million judgment in
Georgia against William G. Kennedy. At the time, Mr. Kennedy
was married to the Appellant Ms. Kennedy, but they divorced
in Alabama seven months later in September 2014. RES-GA moved
to domesticate its Georgia judgment against Mr. Kennedy in
Florida. And it also instituted supplementary execution
proceedings directed at Mr. Kennedy's interests in
Florida, including a Sandestin condominium that he had
previously owned with his wife Ms. Kennedy as tenants by the
entirety. In the divorce, however, the final decree awarded
Ms. Kennedy the condo as part of its wider distribution of
ten real property interests that the Kennedys had owned.
April 2015, after a hearing in the supplementary execution
proceedings, the trial court approved RES-GA's request to
consider Mr. Kennedy as part owner of the Sandestin condo.
RES-GA had pointed to the Kennedys' final divorce decree
as the basis for claiming that Mr. Kennedy still possessed a
one-half interest in the property as tenants in common with
Ms. Kennedy. The court agreed with RES-GA, converted the
property to a tenancy in common, and permitted RES-GA to levy
on Mr. Kennedy's apparent one-half interest in the condo.
The court issued a writ of execution and authorized a
sheriff's deed sale that ultimately conveyed RES-GA a
right, title, and interest in the condo.
all of this, Ms. Kennedy wasn't made a party to the
supplementary execution proceedings, nor issued a Notice to
Appear, see § 56.29(2), Florida Statutes. While
the court reviewed the divorce decree, it gave no effect to
its provision awarding the condo fully to Ms. Kennedy. One
month after the sheriff's deed sale, Ms. Kennedy
intervened to set aside the writ of execution and vacate the
deed. She appealed after the court denied her request for
Kennedy argues on appeal that she should have been notified
and impleaded into the supplementary execution proceeding
before the trial court issued the writ of execution and
sheriff's deed affecting the title to her condo. She is
correct. Supplementary execution proceedings are designed to
be "equitable in nature." Biel Reo, LLC v.
Barefoot Cottages Dev. Co., LLC, 156 So.3d 506, 508
(Fla. 1st DCA 2014) (citing Ferguson v. State Exch.
Bank, 264 So.2d 867, 868 (Fla. 1st DCA 1972)). After a
party initiates proceedings supplementary, a creditor may
pursue assets held by the debtor, assets of the debtor held
by another, or assets that have been fraudulently transferred
to another. See § 56.29, Fla. Stat. But the
rights of any third party interest-holders must be accounted
for by impleading them into the proceeding and allowing them
to defend their interests. Biel Reo, 156 So.3d at
509. "It is well-settled that a party holding a claim
adverse to both plaintiff and defendant must be brought into
supplementary execution proceedings as a third-party
defendant and given a full and fair opportunity to be heard
before any adverse order may be entered." Sanchez v.
Century Everglades, LLC, 946 So.2d 563, 565 (Fla. 3d DCA
2006) (citing Ryan's Furniture Exchange, Inc. v.
McNair, 162 So. 483, 487 (1935)).
No rights of such third parties 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 ...