Pollizzi v. Paulshock
52 So. 3d 786
Fla. Dist. Ct. App.2010Background
- Paulshock obtained a final judgment against Davenport Anesthesiology Associates (DAA) for $125,000.
- Paulshock filed a verified motion for proceeding supplementary and impleader to bring Pollizzi, Forensky, and Wynn into the case, alleging they fraudulently transferred about $150,000 from DAA’s operating account.
- Trial court granted the motion and a non-jury trial followed, with a forensic accountant testifying that $102,000 was fraudulently transferred to the third-party defendants.
- The trial court found that each third-party defendant received $34,000 and held them jointly and severally liable for the $102,000.
- The ruling raised issues about due process, statutory authority under §56.29, sufficiency of proof of fraud, and the propriety of joint and several liability.
- The court affirmed in part, reversed in part, and remanded to determine proper liability allocation consistent with §56.29.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process notice | Pollizzi/Forensky/Wynn received adequate notice and opportunity to defend. | Defendants contend due process was violated by the entry of judgment without proper process. | No due process violation; notice and opportunity to defend existed. |
| Authority under §56.29 | §56.29(5)(9) liberal construction supports recovery from the transferees. | The court exceeded authority by ordering a money judgment against individuals under §56.29. | Statutory authority properly used to assess liability for the fraudulent transfers. |
| Proof of fraud | Evidence showed the transfers occurred while DAA was insolvent and after suit was filed, with transfers to officers/shareholders. | Fraud proof insufficient or not properly established. | Evidence supported fraudulent transfers under §726.105; findings affirmed. |
| Joint and several liability | All third-party defendants contributed to the improper transfers and should be jointly and severally liable. | Procedures do not permit joint and several liability in this context; liability should be limited to each amount received. | Not proper to impose joint and several liability; liability should be allocated per individual amount ($34,000 each). |
Key Cases Cited
- Zureikat v. Shaibani, 944 So.2d 1019 (Fla. 5th DCA 2006) (due process and notice in supplementary proceedings)
- Wieczoreck v. H & H Builders, Inc., 450 So.2d 867 (Fla. 5th DCA 1984) (third-party impleader in supplementary proceedings with notice and hearing)
- Mejia v. Ruiz, 985 So.2d 1109 (Fla. 3d DCA 2008) (liberal construction of §56.29 for creditor relief)
- Regent Bank v. Woodcox, 636 So.2d 885 (Fla. 4th DCA 1994) (creditor not required to file an entirely new action to attach third-party goods)
- H. Allied Indus. Int’l, Inc. v. AGFA-Gevaert, Inc., 688 F. Supp. 1516 (S.D. Fla. 1988) (persuasive authority on supplementary proceedings and recovery against shareholder)