Donald R. Buse v. Robert J. Kuechenbert

[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 2 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 3 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 4 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. 5 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. 6