Preview
Filing # 197340047 E-Filed 04/30/2024 05:43:40 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL DIVISION
WILLIAM H. SCHMITZ and JANICE K. SCHMITZ,
as Husband and Wife,
Plaintiffs, Case No.: 16-001754-CA
V.
ALEXMAR PIMIENTA GARRIDO,
JLL LOGISTIC INC and ROBERTO LI,
Defendants.
/
MOTION TO SUBSTITUTE FOR OR JOIN RECEIVER WITH DEFENDANT JLL
LOGISTIC, INC. AND AMEND CASE CAPTION ACCORDINGLY
GERARD A. MCHALE, JR. (“McHale”), as Receiver for JLL Logistic, Inc. (“JLL”)
hereby moves the Court, pursuant to Florida Rule of Civil Procedure 1.260(c), to substitute for or
join McHale as Receiver with JLL as a party defendant and amend the case caption accordingly,
and states:
Factual and Procedural Background
1 As the Court will recall, this personal injury action concluded with a Final
Judgment entered by consent against JLL in favor of Mr. and Mrs. Schmitz (“the Schmitzes”) on
January 29, 2018. (Dkt. 72).
2. On October 28, 2019, the Court granted the Schmitzes’ motion to appoint a receiver
for JLL (Dkts. 80 and 81) and appointed McHale as receiver for JLL pursuant to section 56.10, Florida
Statutes. (Dkt. 82). The Court’s Order granted McHale the right to “take exclusive possession,
control and custody of the Property,” to wit: “all real property, personal property, things in action,
goods, chattels and any other assets” of JLL. (Dkt. 82). Further, the Order authorized McHale to
FILED: 04/30/2024 05:43 PM: Roger D. Eaton, Clerk of the Circuit Court, Charlotte County, FL DIN121
consummate transactions, enter into contracts, pay lawful debts, and prosecute all lawsuits as
reasonably necessary. (Id.)
3 Thus, by virtue of the receivership, McHale effectively stepped into the shoes of
the judgment debtor, JLL. See Freeman v. Dean Witter Reynolds, Inc., 865 So. 2d 543, 550 (Fla.
2d DCA 2003) (“It is axiomatic that [a receiver] obtained the rights of action and remedies that
were possessed by the person or corporation in receivership.”).
4 McHale now seeks to be substituted for JLL or, alternatively, to be added as a party
Defendant pursuant to Rule 1.260(c) of the Florida Rules of Civil Procedure. This will avoid any
confusion regarding McHale’s role in this litigation (in both this Court and in any appellate
proceedings arising from this litigation).
Argument
5 The Court’s Order appointing McHale as Receiver for JLL effectuated a transfer of
interest in the Property from JLL to McHale, which effectively rendered McHale a substituted or
joined party pursuant to the Florida Rules of Civil Procedure.
6. Specifically, Rule 1.260(c) provides that:
In case of any transfer of interest, the action may be continued by or against the
original party, unless the court upon motion directs the person to whom the interest
is transferred to be substituted in the action or joined with the original party. Service
of the motion shall be made as provided in subdivision (a) of this rule.
Thus, pursuant to Rule 1.260(c), McHale was not required to move to formally substitute himself
for JLL or to be joined with JLL; to the extent any additional litigation was required, McHale was
allowed to proceed in the name of the original party, JLL. See, e.g., Sarasota Renaissance II, Ltd.
P’ship v. Batson Cook Co., 117 So. 3d 1184, 1189 (Fla. 2d DCA 2013); Levine v. Gonzalez, 901
So. 2d 969, 972-73 (Fla. 4th DCA 2005); Schmidt v. Mueller, 335 So.2d 630, 631 (Fla. 2d DCA
1976).
7
However, substitution or joinder is appropriate under the Rule. The Court’s Order
appointing McHale as Receiver for JLL and vesting in McHale the right to “take exclusive
possession, control and custody of the Property,” consummate transactions, enter into contracts,
pay lawful debts, and prosecute all lawsuits as reasonably necessary (Dkt. 82) is precisely the kind
of transfer of interest contemplated by Rule 1.260(c).
8 Florida courts have found that assignment of physical assets, mortgages, and
equipment leases during the pendency of litigation is a “transfer of interest” triggering Rule
1.260(c). See, e.g., MTGLQ Inv’rs, L.P. v. Merrill, 312 So. 3d 986, 991 (Fla. Ist DCA 2021)
(holding, in foreclosure action, that substitution was appropriate because of mortgage assignment
and power of attorney granted to party being substituted); Sun States Util. v. Destin Water Users.
Inc., 696 So.2d 944, 945 (Fla. Ist DCA 1997) (noting that an assignment of the right to maintain
lawsuit from original plaintiff to an individual would be sufficient to warrant substitution of the
individual as the plaintiff); C.A. Leasing Serv. Corp. v. Zorn’s (Howard) Equip. Serv., Inc., 565
So. 2d 744, 745-46 (Fla. 5th DCA 1990) (noting that a successor corporation may be substituted
as the real party in interest).
9 Likewise, transfers of property interests and choses of action! through court-
ordered auctions and foreclosure proceedings constitute “transfers of interest” under the Rule
where litigation involving the original party is pending. See, e.g., Levine, 901 So. 2d at 972-73
(“[AJny transfer of interest ... necessarily includes the transfer of interest in a chose of action
through a court-ordered auction.”); C.P. Motion, Inc. v. Goldblatt, 193 So. 3d 39, 43-44 (Fla. 3d
' CHOSE, Black’s Law Dictionary (11th ed. 2019):
chose in action. (17c) 1. A proprietary right in personam, such as a debt owed by another
person, a share in a joint-stock company, or a claim for damages in tort. 2. The right to
bring an action to recover a debt, money, or thing. 3. Personal property that one person
owns but another person possesses, the owner being able to regain possession through a
lawsuit. — Also termed thing in action; right in action.
3
DCA 2016) (transfer through judicial foreclosure of chose in action for money damages arising
from a breach of contract claim was a “transfer of interest” under Rule 1.260(c)); Narrows Corp.
v. Boca Ciega Sanitary Dist., 230 So. 2d 49, 50 (Fla. 2d DCA 1970) (noting that real party in
interest, who purchased the property after foreclosure, should have been properly substituted as
the plaintiff).
10. It logically follows that receivers may be substituted or joined parties under Rule
1.260(c). See Seaboard Air Line Ry. Co. v. Dorsey, 149 So. 759, 760 (Fla. 1932) (“If the interests
represented by the receiver render it necessary, he may at his request be substituted by order of the
court as a party defendant and allowed to defend... .”)?; The Florida Bar, 2022 Florida Civil
Practice Before Trial, ch. 9, § 9.5 (2022) (noting that Rule 1.260(c) “applies, for example, to
assignees of contracts, transferees of an interest in property, receivers or trustees of dissolved or
expired corporations, and receivers in bankruptcy”) (emphasis added).
11. Here, since the Order appointing McHale as Receiver for JUL, McHale has stood
in JLL’s shoes in this action by filing legal briefs and handling the Property in accordance with
the Court’s Order. (See, e.g., Dkt. 89, Receiver ’s Response in Opposition to Non-Parties’ Motion
to Intervene and to Vacate Order Appointing Receiver; Dkt. 98, Receiver’s Motion for Approval
of Disbursement; Dkt. 118, Receiver’s Response in Opposition to Non-Parties’ Motion to Stay).
The Court has likewise treated McHale as a substituted or joined party in this action. (See, e.g.,
Dkt. 102, Order Granting Receiver’s Motion for Approval of Disbursement (acknowledging
McHale as Receiver for JLL)). Consequently, there can be no dispute that the Court’s Order
? The Dorsey decision noted that, at that time in 1932, a receiver was required to seek a court order
authorizing substitution, otherwise, the receiver would be a “stranger to the cause.” 149 So. at 760.
However, the Florida Supreme Court amended the Florida Rules of Civil Procedure in 1967 to include
Rule 1.260. See In re Fla. R. Civ. P. 1967 Revision, 187 So. 2d 598 (Fla. 1966). Thus, since 1966, the
Rules — and resulting case law detailed above — have made clear that formal substitution is not required
for a transferee of interest to stand in the shoes of an original party to a cause of action.
4
effectuated a transfer of interest in the Property from JLL to McHale as Receiver, and McHale has
operated as a substituted or joined party in this action accordingly.
12. Although formal substitution or joinder is not required, in this case, it will clarify
the real parties in interest in this action. This will also help resolve any confusion created by the
arguments of Henderson Franklin and Boltrek (the non-parties who sought intervention in this
matter and to vacate the Court’s Order appointing McHale as Receiver), who are continuing to
argue that McHale has no right to participate in this action or any appeals arising therefrom. (See,
e.g., Dkt. 94, non-parties’ Reply to Receiver’s & Schmitzes’ Response to Attorney-Defendants’
Motion to Intervene and Motion to Vacate the Order Appointing a Receiver for JLL, Logistic[,]
Inc. (arguing that McHale “has no right to intermeddle in questions affecting the rights of the
parties or the disposition of the property in his hands.”); see also Dkt. 101, Order Denying Non-
Parties’ Motion to Intervene and Motion to Vacate Void Order Appointing Receiver for JLL
Logistic, Inc. on other grounds). The non-parties’ position is contrary to the well-established law
outlined above.
13. A Court order formally substituting or joining McHale will lay to rest any question
regarding McHale’s position, rights and responsibilities in this action.
WHEREFORE, Plaintiff respectfully requests the Court formally substitute McHale for, or
join McHale with, Defendant JLL, and amend the case caption accordingly.
[certificate of service on next page]
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing was served via electronic mail through the e-
filing portal to Kenneth R. Drake and James Paul Brandt Roen, (kdrake@cmlawfirm.com;
broen@cmlawfirm.com) CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON, & ZIMET,
LLP, 806 Douglas Road, 12th Floor, Coral Gables, FL 33134, Scot Goldberg and Michelle
Keezel (scotgoldberg@goldberg-law.com; michellekeezel@goldberg-law.com), Goldberg,
Noone, Abraham, LLC, 1533 Hendry Street, Suite 200, Fort Myers, FL 33901, and Reba
Abraham Pearce (reba@staugustinelawgroup.com; info@staugustinelawgroup.com), St.
Augustine Law Group, U.S. Highway | South, St. Augustine, FL 32086, via electronic mail and
U.S. Mail to Roberto Li, President of JLL Logistic, Inc. (robertolil977@gmail.com), 2019
Warrington Way, Tampa, FL 33619, on this 30th day of April, 2024.
4/ Brent Steinberg
BRENT STEINBERG
Florida Bar No.: 008543
SWOPE, RODANTE P.A.
1234 East 5" Avenue
Tampa, FL 33605
P: (813) 273-0017
F: (813) 223-3678
Team3eservice@swopelaw.com
Appeals@swopelaw.com
service@swopelaw.com
Attorneys for Receiver McHale
Preview
Filing # 197340047 E-Filed 04/30/2024 05:43:40 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL DIVISION WILLIAM H. SCHMITZ and JANICE K. SCHMITZ, as Husband and Wife, Plaintiffs, Case No.: 16-001754-CA V. ALEXMAR PIMIENTA GARRIDO, JLL LOGISTIC INC and ROBERTO LI, Defendants. / MOTION TO SUBSTITUTE FOR OR JOIN RECEIVER WITH DEFENDANT JLL LOGISTIC, INC. AND AMEND CASE CAPTION ACCORDINGLY GERARD A. MCHALE, JR. (“McHale”), as Receiver for JLL Logistic, Inc. (“JLL”) hereby moves the Court, pursuant to Florida Rule of Civil Procedure 1.260(c), to substitute for or join McHale as Receiver with JLL as a party defendant and amend the case caption accordingly, and states: Factual and Procedural Background 1 As the Court will recall, this personal injury action concluded with a Final Judgment entered by consent against JLL in favor of Mr. and Mrs. Schmitz (“the Schmitzes”) on January 29, 2018. (Dkt. 72). 2. On October 28, 2019, the Court granted the Schmitzes’ motion to appoint a receiver for JLL (Dkts. 80 and 81) and appointed McHale as receiver for JLL pursuant to section 56.10, Florida Statutes. (Dkt. 82). The Court’s Order granted McHale the right to “take exclusive possession, control and custody of the Property,” to wit: “all real property, personal property, things in action, goods, chattels and any other assets” of JLL. (Dkt. 82). Further, the Order authorized McHale to FILED: 04/30/2024 05:43 PM: Roger D. Eaton, Clerk of the Circuit Court, Charlotte County, FL DIN121 consummate transactions, enter into contracts, pay lawful debts, and prosecute all lawsuits as reasonably necessary. (Id.) 3 Thus, by virtue of the receivership, McHale effectively stepped into the shoes of the judgment debtor, JLL. See Freeman v. Dean Witter Reynolds, Inc., 865 So. 2d 543, 550 (Fla. 2d DCA 2003) (“It is axiomatic that [a receiver] obtained the rights of action and remedies that were possessed by the person or corporation in receivership.”). 4 McHale now seeks to be substituted for JLL or, alternatively, to be added as a party Defendant pursuant to Rule 1.260(c) of the Florida Rules of Civil Procedure. This will avoid any confusion regarding McHale’s role in this litigation (in both this Court and in any appellate proceedings arising from this litigation). Argument 5 The Court’s Order appointing McHale as Receiver for JLL effectuated a transfer of interest in the Property from JLL to McHale, which effectively rendered McHale a substituted or joined party pursuant to the Florida Rules of Civil Procedure. 6. Specifically, Rule 1.260(c) provides that: In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule. Thus, pursuant to Rule 1.260(c), McHale was not required to move to formally substitute himself for JLL or to be joined with JLL; to the extent any additional litigation was required, McHale was allowed to proceed in the name of the original party, JLL. See, e.g., Sarasota Renaissance II, Ltd. P’ship v. Batson Cook Co., 117 So. 3d 1184, 1189 (Fla. 2d DCA 2013); Levine v. Gonzalez, 901 So. 2d 969, 972-73 (Fla. 4th DCA 2005); Schmidt v. Mueller, 335 So.2d 630, 631 (Fla. 2d DCA 1976). 7 However, substitution or joinder is appropriate under the Rule. The Court’s Order appointing McHale as Receiver for JLL and vesting in McHale the right to “take exclusive possession, control and custody of the Property,” consummate transactions, enter into contracts, pay lawful debts, and prosecute all lawsuits as reasonably necessary (Dkt. 82) is precisely the kind of transfer of interest contemplated by Rule 1.260(c). 8 Florida courts have found that assignment of physical assets, mortgages, and equipment leases during the pendency of litigation is a “transfer of interest” triggering Rule 1.260(c). See, e.g., MTGLQ Inv’rs, L.P. v. Merrill, 312 So. 3d 986, 991 (Fla. Ist DCA 2021) (holding, in foreclosure action, that substitution was appropriate because of mortgage assignment and power of attorney granted to party being substituted); Sun States Util. v. Destin Water Users. Inc., 696 So.2d 944, 945 (Fla. Ist DCA 1997) (noting that an assignment of the right to maintain lawsuit from original plaintiff to an individual would be sufficient to warrant substitution of the individual as the plaintiff); C.A. Leasing Serv. Corp. v. Zorn’s (Howard) Equip. Serv., Inc., 565 So. 2d 744, 745-46 (Fla. 5th DCA 1990) (noting that a successor corporation may be substituted as the real party in interest). 9 Likewise, transfers of property interests and choses of action! through court- ordered auctions and foreclosure proceedings constitute “transfers of interest” under the Rule where litigation involving the original party is pending. See, e.g., Levine, 901 So. 2d at 972-73 (“[AJny transfer of interest ... necessarily includes the transfer of interest in a chose of action through a court-ordered auction.”); C.P. Motion, Inc. v. Goldblatt, 193 So. 3d 39, 43-44 (Fla. 3d ' CHOSE, Black’s Law Dictionary (11th ed. 2019): chose in action. (17c) 1. A proprietary right in personam, such as a debt owed by another person, a share in a joint-stock company, or a claim for damages in tort. 2. The right to bring an action to recover a debt, money, or thing. 3. Personal property that one person owns but another person possesses, the owner being able to regain possession through a lawsuit. — Also termed thing in action; right in action. 3 DCA 2016) (transfer through judicial foreclosure of chose in action for money damages arising from a breach of contract claim was a “transfer of interest” under Rule 1.260(c)); Narrows Corp. v. Boca Ciega Sanitary Dist., 230 So. 2d 49, 50 (Fla. 2d DCA 1970) (noting that real party in interest, who purchased the property after foreclosure, should have been properly substituted as the plaintiff). 10. It logically follows that receivers may be substituted or joined parties under Rule 1.260(c). See Seaboard Air Line Ry. Co. v. Dorsey, 149 So. 759, 760 (Fla. 1932) (“If the interests represented by the receiver render it necessary, he may at his request be substituted by order of the court as a party defendant and allowed to defend... .”)?; The Florida Bar, 2022 Florida Civil Practice Before Trial, ch. 9, § 9.5 (2022) (noting that Rule 1.260(c) “applies, for example, to assignees of contracts, transferees of an interest in property, receivers or trustees of dissolved or expired corporations, and receivers in bankruptcy”) (emphasis added). 11. Here, since the Order appointing McHale as Receiver for JUL, McHale has stood in JLL’s shoes in this action by filing legal briefs and handling the Property in accordance with the Court’s Order. (See, e.g., Dkt. 89, Receiver ’s Response in Opposition to Non-Parties’ Motion to Intervene and to Vacate Order Appointing Receiver; Dkt. 98, Receiver’s Motion for Approval of Disbursement; Dkt. 118, Receiver’s Response in Opposition to Non-Parties’ Motion to Stay). The Court has likewise treated McHale as a substituted or joined party in this action. (See, e.g., Dkt. 102, Order Granting Receiver’s Motion for Approval of Disbursement (acknowledging McHale as Receiver for JLL)). Consequently, there can be no dispute that the Court’s Order ? The Dorsey decision noted that, at that time in 1932, a receiver was required to seek a court order authorizing substitution, otherwise, the receiver would be a “stranger to the cause.” 149 So. at 760. However, the Florida Supreme Court amended the Florida Rules of Civil Procedure in 1967 to include Rule 1.260. See In re Fla. R. Civ. P. 1967 Revision, 187 So. 2d 598 (Fla. 1966). Thus, since 1966, the Rules — and resulting case law detailed above — have made clear that formal substitution is not required for a transferee of interest to stand in the shoes of an original party to a cause of action. 4 effectuated a transfer of interest in the Property from JLL to McHale as Receiver, and McHale has operated as a substituted or joined party in this action accordingly. 12. Although formal substitution or joinder is not required, in this case, it will clarify the real parties in interest in this action. This will also help resolve any confusion created by the arguments of Henderson Franklin and Boltrek (the non-parties who sought intervention in this matter and to vacate the Court’s Order appointing McHale as Receiver), who are continuing to argue that McHale has no right to participate in this action or any appeals arising therefrom. (See, e.g., Dkt. 94, non-parties’ Reply to Receiver’s & Schmitzes’ Response to Attorney-Defendants’ Motion to Intervene and Motion to Vacate the Order Appointing a Receiver for JLL, Logistic[,] Inc. (arguing that McHale “has no right to intermeddle in questions affecting the rights of the parties or the disposition of the property in his hands.”); see also Dkt. 101, Order Denying Non- Parties’ Motion to Intervene and Motion to Vacate Void Order Appointing Receiver for JLL Logistic, Inc. on other grounds). The non-parties’ position is contrary to the well-established law outlined above. 13. A Court order formally substituting or joining McHale will lay to rest any question regarding McHale’s position, rights and responsibilities in this action. WHEREFORE, Plaintiff respectfully requests the Court formally substitute McHale for, or join McHale with, Defendant JLL, and amend the case caption accordingly. [certificate of service on next page] CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was served via electronic mail through the e- filing portal to Kenneth R. Drake and James Paul Brandt Roen, (kdrake@cmlawfirm.com; broen@cmlawfirm.com) CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON, & ZIMET, LLP, 806 Douglas Road, 12th Floor, Coral Gables, FL 33134, Scot Goldberg and Michelle Keezel (scotgoldberg@goldberg-law.com; michellekeezel@goldberg-law.com), Goldberg, Noone, Abraham, LLC, 1533 Hendry Street, Suite 200, Fort Myers, FL 33901, and Reba Abraham Pearce (reba@staugustinelawgroup.com; info@staugustinelawgroup.com), St. Augustine Law Group, U.S. Highway | South, St. Augustine, FL 32086, via electronic mail and U.S. Mail to Roberto Li, President of JLL Logistic, Inc. (robertolil977@gmail.com), 2019 Warrington Way, Tampa, FL 33619, on this 30th day of April, 2024. 4/ Brent Steinberg BRENT STEINBERG Florida Bar No.: 008543 SWOPE, RODANTE P.A. 1234 East 5" Avenue Tampa, FL 33605 P: (813) 273-0017 F: (813) 223-3678 Team3eservice@swopelaw.com Appeals@swopelaw.com service@swopelaw.com Attorneys for Receiver McHale