[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR TH E ELEV ENTH C IRCUIT
U.S. COURT OF APPEALS
____________________________ ELEVENTH CIRCUIT
MARCH 27, 2003
No. 02-12185 THOMAS K. KAHN
____________________________ CLERK
D. C. Docket No. 00-07629-CV-KMM
DON ALD R. BU SE,
Plaintiff- Appe llant,
versus
ROB ERT J. KU ECH ENB ERG ,
Defen dant-A ppellee.
____________________________
Appe al from th e United States D istrict Cou rt
for the Southern District of Florida
____________________________
(March 27, 2003)
Before CAR NES, M ARCU S and SU HRHE INRICH *, Circuit Judges.
_________________
*Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit,
sitting by designation.
CARNE S, Circuit Judge:
On June 18, 19 93, Donald R. B use obtained a default judgment against
Robert J. Kuechenberg in federal district court in Indiana. More than seven years
later, on October 31, 2000, Buse registered that judgment in the United States
District C ourt for the Sou thern D istrict of F lorida, pu rsuant to 28 U.S .C. § 19 63.
A mo nth after r egistering the judg ment w ith the distr ict court, B use pro cured a w rit
of execution from it. In response, K uechenberg filed a motion to dism iss or quash
the writ of execution claiming that it was time barred. The district court agreed,
based on its interpretation of Florida law, and granted the motion. Contending that
the district c ourt mis interprete d Florid a law, B use brin gs this ap peal.
We are bound by Fed eral Rule of Civil P rocedu re 69 to f ollow s tate law.
Unde r that rule, “[ t]he proc edure o n execu tion, in pr oceedin gs supp lementar y to
and in aid of a judg ment, an d in pro ceeding s on and in aid of e xecution shall be in
accorda nce with the practic e and pr ocedur e of the state in wh ich the dis trict court is
held.” Fed. R. Civ. P. 69(a). Once Buse registered his judgment in federal district
court in Florida, any efforts to execute on that judgment had to be in accordance
with “the practice an d proce dure” o f Florid a. The law of Flor ida prov ides that:
“An action on a judgment or decree of any court, not of record, of this state or any
court of the United States, any other state or territory in the United States, or a
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foreign country ” must b e broug ht within five years . Fla. Stat. § 95.11( 2)(a).
Since B use regis tered his ju dgmen t and ob tained a w rit of exec ution fo r it
more than seven years after he had obtained the judgment, his action is time-barred
if section 9 5.11(2 )(a) app lies. Wh ether it app lies is the dis puted q uestion o f state
law upon w hich this case turns. Concluding that section 95.11(2 )(a) does apply,
the district court granted Kuechenberg’s motion to dismiss or quash the writ of
execution. Of course, Buse disagrees. He takes the position that section
95.11( 2)(a) do es not ap ply becau se he w as not pu rsuing “a n action o n a judg ment.”
Wheth er Buse ’s collection efforts am ounted to an “an a ction on a judgm ent”
under Florida law is not clear. Ag ainst Buse’s position is the decision of the First
District Court of Appeal in Kiesel v. Graham, 388 So. 2d 594, 596 (Fla. 1st DCA
1980). The appellant in that case had obtained a judgment in federal court and
attempted to use a writ of mandamus from the state courts to collect on the
judgm ent mor e than fiv e years later . Id. at 595. The Florida appellate court
concluded that section 95.11(2)(a) applied, and as a result the five-year statute of
limitations barred th e appellan t’s collection efforts. Id. at 596.
Because we follow state intermediate appellate court decisions on state law
when there are n o state sup reme co urt decisio ns on p oint, McM ahan v. T oto, 311
F.3d 1077, 1080 (11th Cir. 2002), this Court followed the First District Court of
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Appeal’s Kiesel holding in Balfour Beatty Bahamas, L td. v. Bush, 170 F.3d 1048,
1051 (11th Cir. 1999). In that case, as in the Kiesel case and this case, a p arty
attempted in a federal district court in Florida to collect on a federal judgment that
was m ore than five years old. Id. at 1049. Relying upon Kiesel, we concluded that
the “post-judgment collection efforts–which exceeded the five-year period–[were]
barred by § 95.11(2)(a) as untimely.” Id. at 1051. The Kiesel position, which we
followed in Balfour Beatty Bahamas, is that collection efforts are “action[s] on a
judgm ent” with in the me aning o f section 9 5.11(2 )(a).
If the Kiesel and Balfour Beatty Bahamas decisions were the only decisions
on this issue, the correct disposition of this appeal would be clear, but the view has
been clouded by a decision of another state intermediate appellate court reaching
the opposite conclusion. In Burshan v. National Union Fire Insurance Co., 805 So.
2d 835 (Fla. 4th DCA 2001), the Fourth District Court of Appeal said that “[s]ince
the ninete enth cen tury, the p hrase ‘actio n on a ju dgmen t’ in the statu te
[§ 95.11(2)(a)] has had a precise meaning as a common law cause of action,” and
explained that an action on a judgment provides the opportunity for a new
judgm ent that w ill ultimately a llow satis faction o n the orig inal one. Id. at 840-4 1.
For tha t reason, th e Cour t conclud ed that a co llection m echanism , such as th e writ
of mandamus in Kiesel, is not an “a ction on a judgm ent,” mea ning tha t the statute
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of limitatio ns conta ined in se ction 95 .11(2)( a) does n ot apply. Id. at 843-4 4.
The Burshan Court a cknow ledged th at its decisio n conflic ted with both this
Court’s decision in Balfour Beatty Bahamas and the First District Court of
Appeal’s decision in Kiesel, and it certified the conflict between its decision and
the Kiesel decision to the Flo rida Su preme C ourt, id., giving the final arbiter of
Florida law an oppo rtunity to resolve the split in the intermediate appellate courts,
see Fla. R. App. P. 9.030(a)(2)(A)(vi). If that opportunity had come to fruition, we
would not be struggling with the issue but instead would have simply followed
whatever the Florida Su preme Court decided in that case. U nfortunately for us,
howe ver, the d ifference of opin ion betw een the tw o interm ediate app ellate cour ts
has not been resolved by the Florida Supreme Court and will not be in the Burshan
case. Th e appeal w as volun tarily dism issed by th e parties, Burshan v. Nat’l Union
Fire Ins. Co., No. 01 -1829 (Fla. D ec. 20, 20 02), app arently be cause of settlemen t.
The co nflict rem ains, and we are n ot the on es to reso lve it. 1
Accordingly, we certify to the Florida Supreme Court the following
question:
1
It could be argued–we cannot tell for sure whether Kuechenberg does–that under the
prior precedent rule we must follow our decision in Balfour Beatty Bahamas. We are not
required to do so if an intervening Florida decision indicates that our earlier appraisal of that
state’s law is wrong. See Roboserve, Ltd. v. Tom’s Foods, Inc., 940 F.2d 1441, 1451 (11th Cir.
1991). Only the Florida Supreme Court can authoritatively decide whether it is.
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Does the statute of limitations contained in Fla. Stat. § 95.11(2)(a)
apply to bar the registration of a judgment and issuance of a writ of
executio n more than five years after the judg ment w as initially
entered?
Our phrasing of the question is not intended to restrict the scope of inquiry
by the Florida Supreme Court, which is, of course, free to phrase or rephrase the
issues as it deems appropriate. If our brothers and sisters on that Court exercise
their discretion to accept this certification, we will appreciate and follow any
guidan ce they pr ovide u s.
The en tire record in this case , along w ith the par ties’ briefs s ubmitted to this
Court, is to be transmitted herewith.
QUESTION CERTIFIED.
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