The Life of a Money Judgment in Florida Is LimitedâFor Only Some Purposes
Virtually every lawyer in Florida will tell you that the life of a money judgment1 in this state is 20 years.2 Extensive research reveals no judicial or scholarly opinion to the contrary; but that statement is only partially accurate. Presently there is a Florida statute that limits judgment liens to 20 years,3 and there is a Florida statute that limits “actions” on certain judgments to 20 years and other judgments to five years.4 There is, however, no statute or court rule that places a time limit on the execution of judgments. There are district court decisions stating that executions are limited to 20 years, but they are incorrectly decided;5 and there is no Florida Supreme Court decision on point.
This article is an attempt to prove the proposition that under present law there is no time limit on which a judgment in Florida may be executed.
Three Options of the Holder of a Money Judgment
The holder of a money judgment6 has three options as to how to use the judgment. The first option allows the judgment-creditor to obtain a lien against the judgment-debtor’s real and personal property. We may call this the “lien option.” The second option allows the judgment-creditor to create a new judgment just prior to the original judgment becoming dormant.7 We may call this the “creation option.”8 Lastly, the third option allows the judgment-creditor to execute on the assets of the judgment-debtor in order to have the judgment satisfied. We may call this last option the “execution option.”
statute, exercise of the lien option and the creation option are specifically limited.9 There is, however, no statutory nor rule provision specifying within what period of time the execution option must be exercised.
• The Lien Option
After a judgment is entered in favor of the judgment-creditor against the judgment-debtor, the judgment-creditor may obtain a lien against the judgment-debtor’s real property by recording a certified copy of the judgment in the county in which the judgment debtor owns real property;10 and against the judgment-debtor’s personal property by filing a judgment lien certificate11 in the office of the Department of State.12
Purpose of the Judgment Lien. There are two purposes of obtaining a judgment lien, one practical and one statutory. The practical purpose is to encumber the assets of the judgment debtor so that the debtor will not be able to alienate those assets. The statutory purpose is to give the judgment creditor “the right to proceed against the property of the debtor through writ of execution, garnishment or other judicial process.”13 It should be noted that even though the statute (§55.205(1)), gives the holder of a judgment lien the right to proceed “through writ of execution, garnishment, or other judicial process,” it does not state that the judgment creditor may not so proceed without the judgment lien.14 The statute, moreover, gives the judgment-creditor without a lien the right to “proceed against the judgment-debtor’s property through other judicial process,” and provides that “[s]uch judgment creditor proceeding by writ of execution acquires a lien as of the time of levy and only on the property levied upon.”15 Thus the statute expressly provides for executions without a previously acquired lien and creates a limited lien for such circumstance.
Extension of the Judgment Lien. The recording of a certified copy of a judgment creates a lien upon real property in the county of recordation for “an initial period of 10 years from the date of recording.”16 The initial period of 10 years may be extended for an additional period of 10 years, by rerecording a certified copy of the judgment prior to the running of the 10-year period together with an affidavit containing the current address of the lienholder.17 In Florida “no judgment, order, or decree of any court shall be a lien upon real or personal property within the state after the expiration of 20 years from the date of the entry of such judgment.”18 In order to retain a lien for the maximum period of 20 years, the certified copy of the judgment must be recorded simultaneously with the entry of the judgment.19
• The Creation Option
F.S. §95.11 governs the times within which “an action on a judgment” may be commenced.20 An action on a judgment is a proceeding by which the judgment-creditor, before the judgment becomes dormant,21 creates a new judgment22 for the purpose of taking it to a new jurisdiction, making it a judgment of that jurisdiction, and satisfying, at least partially, the new judgment there in the new jurisdiction.23 An action on a judgment differs from an execution of the judgment, in that the former creates a new judgment, whereas the latter (the execution) is a proceeding that seeks to enforce a presently existing judgment. The time within which an “action on a judgment” may be exercised is “within 20 years” where the judgment or decree is of a “court of record of this state”24 and “within five years” where the judgment or decree is of a “court not of record, of this state or of any court of the United States, any other state or territory in the United States, or a foreign country.”25
Dormancy. At common law, because the law presumed that a judgment would be satisfied within a year and a day of its entry, it became dormant on the 366th day.26 The Florida Legislature, by limiting “actions on judgments” to five and 20 years,27 has in effect said that after the running of those time periods the judgments are “dormant” and cannot be used to create new judgments.
• The Execution Option
The purpose of the execution option is to collect the money that the judgment commands the judgment-debtor to pay to the judgment-creditor. In order to exercise that option, the following procedures are required: 1) a judgment is entered requiring the judgment-debtor to pay a sum of money to the judgment-creditor; 2) the judgment is recorded;28 3) a writ of execution is delivered to the sheriff or marshal29 by the judgment-creditor;30 4) the sheriff or marshal levies upon assets of the debtor; 5) the sheriff or marshal then sells as much personal property and, if need be, the judgment-debtor’s real property, as has been levied upon, in order to satisfy the judgment.31
There is no statute or court rule specifying the time within which an execution may be carried into effect. In Burshan v. Nat. Union Fire Ins. Co., 805 So. 2d 835 (Fla. 4th DCA 2001), rev. denied, 835 So. 2d 265 (Fla. 2002), the Fourth District Court of Appeal held that that time period was 20 years; but that decision is incorrect. The court used a three-step process in making its determination. First, it correctly defined an execution as “a final process to enforce a judgment.”32 Next, relying on F.S. §56.021 and Rule 1.550(a), it stated that “[w]hen issued, an execution is valid and effective during the life of the judgment or decision on which it is issued.”33 From these two correct steps it took a quantum leap to find that “[a]n execution is thus subject to the time limit of §55.081.”34 In other words, even though the “life of a judgment” for execution purposes has not been explicitly defined by statute, the court thought it was at liberty to use the “life of a judgment lien” (under F.S. §55.081) in order to fill in the interstice left by the legislature when it repealed a statute (F.S. §55.15) that specifically set the time for execution, but failed to replace it with another statute.35 The court so held simply because the legislature said in F.S. §56.021 that an execution is valid and effective during the “life of the judgment”and because the Florida Supreme Court said in Rule 1.550(a) that executions on judgments shall issue during the “life of the judgment.” Neither the legislature nor the court has defined the “life of the judgment” for execution purposes. The courts should not speculate on what the legislature would do if it chose to act.36
In addition to the current lack of a statutory limitation on the life of the execution option as once existed, there is an additional reason why the “life of a judicial lien” should not be used as the life of the execution option. F.S. §55.205(1), without a time limitation, allows a judgment-creditor to proceed against a judgment-debtor’s personal property without a judgment lien. It provides that “[a] judgment-creditor who has not acquired a judgment lien as provided in §55.20237 or whose lien has lapsed, may nevertheless proceed against the judgment debtor’s property through other judicial process.”38
That statute, moreover, provides that “such judgment-creditor” who proceeds by writ of execution “acquires a lien as of the time of the levy [but] only on the property levied upon.”39 The statute has received only one very limited interpretation, not relevant to the present inquiry,40 but its intent is clear: In Florida there is no need for a judgment to be certified in order to acquire a judgment lien against personal property, for one may be acquired by proceeding with a writ of execution; and no time limit is placed on the procedure. It would be an unwarranted stretch to argue that such legislative work is in any measure an indication that the legislature intended for the courts to use the life of a judgment lien as the life of an execution.
The Third District Court of Appeal also erred in 2001 when it decided Marsh v. Patchett, 788 So. 2d 353 (Fla. 3d DCA 2001). In attempting to determine the life of the execution option, it used the life of the creation option (F.S. §95.11(1)41) and cited a 1950 Florida Supreme Court decision42 that was based on a statute now repealed.43 Section 95.11(1) does not limit executions because executions are not “actions.” Executions in Florida have been specifically described as
the act of carrying into effect the final judgment or decree of the court and as the remedy afforded by law for the enforcement of a judgment. It is not an action but, rather, a process in an action and is more accurately defined as a writ issued to an officer that directs and authorizes the officer to carry into effect the judgment of the court.44 [emphasis added]
The authority for the aforementioned statement comes from the Florida Supreme Court, which said that “[a]n execution is a remedy, not an action.”45 The Supreme Court repeated the same wording in a later case.46
The Florida Supreme Court has further described execution as merely the final phases of a case.47
Rule of Civil Procedure 1.050 provides that:
Every action of a civil nature shall be deemed commenced when the complaint or petition is filed, except that ancillary proceedings shall be deemed commenced when the writ is issued or the pleading setting forth the claim of the party initiating the action is filed.48
Execution remedies are ancillary proceedings.49
Between 184450 and 196751 Florida had a statute52 that provided the plaintiff
shall be entitled to his execution at any time within three years after the rendition of any judgment or decree, and upon the issue of [his] execution, shall be entitled to renew the same, upon his return to the Clerk’s office, of the original execution from time to time for 20 years, unless the same be sooner satisfied.53
That statute was construed by the Florida Supreme Court in 1950 and found to limit the life of an execution to 20 years.54 The court opined that “the life span of an execution is not more than 20 years, for it may be revived or reanimated from time to time only within that period. There is no provision for lengthening it, but only for shortening it if it be sooner satisfied.”55
That statute was repealed in 1967,56 and no statute or rule has replaced it.57 The legislature must have known that the statute it was repealing had been interpreted to place a 20-year lifetime on executions.58 It repealed that statute and to this day has not replaced it with a statute or court rule limiting the time within which the execution option must be exercised. The courts are not permitted to judicially enact a statute about which the legislature has clearly spoken, even by its inaction.59
There is no reason apparent for the courts to use the life of other judgment options to fill in the interstice left by the Florida Legislature. Why must there be a time limit on the effectiveness of a judgment? Would anyone seriously contend that a judgment dissolving a marriage, imposing an injunction,60 or declaring the rights and liabilities of parties to a justiciable issue terminated at the end of 20 years? Why then should there be a limit on the time within which a money judgment may be satisfied? Why after five or 20 years is the judgment-debtor suddenly absolved of liability to the judgment creditor?
The holder of a judgment (a judgment-creditor) has three options as to how it may use the judgment in Florida. It may obtain a lien (revealing the judgment) against the judgment-debtor’s property; it may create a new judgment for the purpose of taking the judgment to another place for the satisfaction of the original judgment; and lastly, it may execute on the judgment-debtor’s property in order to satisfy the judgment. There are statutory limitations on the time within which the first two options may be exercised. There is no statutory nor rule limitation on the time within which the third option may be exercised, and the Florida Supreme Court has not spoken about the subject except at a time when there was a governing statute as to executions which has since been repealed, and not replaced. Two district courts of appeal have ruled on the matter, but their decisions are flawed. One used the time limitation of the first option and the other used the time limitation of the second option—and cited the Supreme Court decision that relied upon the repealed and unreplaced statute.
The three options available to the holder of a judgment pertain to entirely different functions, and the time limitation applicable to one should not be used as a time limitation for another. If there must be a time limitation on the third (execution) option, and that is subject to some question,61 the legislature must enact a statute, either replacing the repealed statute (F.S. §55.15) or amending F.S. §56.021 to define its term “life of the judgment.” In the interim, it is not unreasonable to assume that a judgment entered by a Florida court may be executed upon at any time the judgment-creditor can locate assets of the judgment-debtor; and that a judgment entered by a foreign court may be the cause of action for a new judgment in this state whenever the holder of that judgment wishes to domesticate it here.
1 A money judgment requires that the defendant (judgment-debtor) pay a certain amount of money to the plaintiff (judgment-creditor).
2 Even the courts of Georgia believe that. See Georgia Dept. of Human Resources v. Deason, 520 S.E. 2d 712, 716 (Ga. Ct. App. 1999).
3 Fla. Stat. §55.081 (2005).
4 Fla. Stat. §95.11(1), (2) (2005). See Viggio v. Wood, 101 So. 2d 922, 924 (Fla. 3d D.C.A. 1958) (dictum).
5 See infra text accompanying notes 32–49.
6 The holder of a money judgment is called the “judgment-creditor” and the opposite party is the “judgment-debtor.”
7 See infra text accompanying notes 26 and 27 regarding dormancy.
8 The word “creation” is used rather than “revival,” “renewal,” or “extension” to stress the point that the judgment-creditor creates a new judgment, rather than breathing life into an existing judgment. See infra text accompanying notes 20-25. The judgment lien may be “extended” (see infra text accompanying notes 16-19), but the judgment itself, is replaced by a new judgment.
9 See Fla. Stat. §55.081 (2005) (lien option); Fla. Stat. §95.11(1), (2) (2005) (creation option).
10 See Fla. Stat. §55.10(1) (2005).
11 See Fla. Stat. §55.203 (2005).
12 See Fla. Stat. §55.202(2)(a) (2005).
13 See Fla. Stat. §55.205(1) (2005).
14 At least the sheriff of Broward County has executed on assets of a judgment-debtor without there being a lien on the property. See Eastman Kodak Co. v. Deerprint Corp., Case No. 88-25053 CN, in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, in which the judgment lien expired due to failure to rerecord, yet the sheriff levied upon the judgment-debtor’s property.
15 Fla. Stat. §55.205(1).
16 Fla. Stat. §55.10(1) (2005).
17 See Fla. Stat. §55.10(2) (2005). custom in some counties an affidavit is not required if the address of the lienholder is on the face of the judgment.
18 Fla. Stat. §55.081 (2005).
19 See Fla. Stat. §55.10(2) (2005). That statute incorrectly states that an extension of the lien may be further extended, but the following sets of dates reveal that the extension of the lien may never be further extended because Fla. Stat. §55.081 places a limit of 20 years on the life of the judgment lien.
1/15/2000 Judgment 1/15/2000 Judgment
1/20/2000 Judgment 1/15/2000 Judgment
1/18/2010 Judgment 1/13/2010 Judgment
1/19/2010 10-year 1/14/2010 10-year
period ends period ends
1/14/2020 20-year 1/14/2020 20-year
period ends period ends
Under the first set of dates the judgment lien would exist five days less than under the second set of dates because the judgment was recorded five days after the entry of the judgment, whereas under the second set of dates the judgment was recorded simultaneously with the entry of the judgment. Under the second set of dates the judgment lien exists for the full 20-year period only because the judgment was recorded simultaneously with the entry of the judgment.
20 This is similar to, but different than, proceeding by the writ of scire facias which was a common law remedy for the revival of a dormant judgment, though no longer recognized in Florida. See Fla. R. Civ. P. 1.100(d). The Florida Supreme Court in Massey v. Pineapple Orange Co., 100 So. 170, 171 (Fla. 1924), indicated that proceeding by scire facias might be an “action,” but the court later, in B.A. Lott, Inc. v. Padgett, 14 So. 667, 669 (Fla. 1943), described it as “not a new action but. . . only a step in the original cause of a remedial nature to effectuate the lien already in existence.” Hence it held that the then seven-year statute of limitations of §95.11(1) was inapplicable. See id.
21 See infra text accompanying notes 26 and 27 regarding dormancy. The statute (§95.11) does not specify the act from which the limitation period begins to run, but the Florida Supreme Court has stated that it begins to run from the date the judgment is “entered.” See Calhoun v. Pearson, 49 So. 2d 603, 604 (Fla. 1951). In Marsh v. Patchett, 788 So. 2d 353, 354 (Fla. 3d D.C.A. 2001), the judgment-creditor filed on the last day of the 20th year.
22 A procedure known as “domesticating” the judgment. See Watkins v. Conway, 385 U.S. 188, 190 n.2 (1966).
23 See Burshan v. Nat’l. Union Fire Ins. Co., 805 So. 2d 835, 841 (Fla. 4th D.C.A. 2001), in which it was said that “[t]he main purpose of an action on a judgment is to obtain a new judgment which will facilitate the ultimate goal of securing satisfaction of the original cause of action,” it being remembered that judgments are causes of action for the enforcement of what they order. Id. The following cases are examples of domestication: In Nadd v. Le Credit Lyonnais, S.A., 804 So. 2d 1226, 1227 (Fla. 2001), a French bank sought to enforce French judgments in Florida. In Michael v. Valley Trucking Co., Inc., 832 So. 2d 213, 214 (Fla. 4th D.C.A. 2002), the plaintiff sought to domesticate a federal judgment into a Florida state judgment. In New York Dept. of Taxation v. Patafio, 829 So. 2d 314, 315 (Fla. 5th DCA 2002), the plaintiff sought to enforce New York tax warrants in Florida.
24 Fla. Stat. §95.11(1). There is no legislative history concerning the enactment of Florida’s first statute of limitations in 1872, or any of its modifications.
25 Fla. Stat. §95.11(2).
26 See Massey v. Pineapple Orange Co., 100 So. 170, 172 (Fla. 1924); Burshan, 805 So. 2d at 841.
27 See supra text accompanying notes 24, 25.
28 Fla. R. Civ. P. 1.550(a).
29 The marshal is almost the federal counterpart of the sheriff.
30 Fla. R. Civ. P. 1.570(a) provides that “[f]inal process to enforce a judgment solely for the payment of money shall be by execution, writ of garnishment, or other appropriate process or proceedings.” Fla. R. Civ. P. 1.570(a).
31 Fla. Stat. §56.061.The sale must be completed during the 20-year life of the lien. Betaco, Inc. v. Countrywide Home Loans, Inc., 752 So. 2d 696, 697 (Fla. 2d D.C.A. 2000).
32 Burshan, 805 So. 2d at 839.
35 See infra text accompanying notes 50-59, dealing with the repeal of Fla. Stat. §55.15. An interesting but unanswered query: Would the failure to replace a repealed specific statutory provision rejuvenate the common law rule of a year and a day? See supra text accompanying note 26.
36 State v. Dugan, 685 So. 2d 1210, 1212 (Fla. 1996).
37 Fla. Stat. §55.202 deals with liens on personal property.
38 See Fla. Stat. §55.205(1).
40 A U.S. magistrate in School Board of Broward County v. J.V. Construction Corp., No. 03 60005 CIV MOR/GAR, 2004 WL 1304058 at 18 (S.D. Fla. Apr. 23, 2004), found that because of Fla. Stat. §55.205(1), unpaid subcontractors, laborers, materialmen, and/or suppliers may have some legal interest in an interpleaded res even though they did not have a lien.
41 See supra text accompanying notes 20-25.
42 Young v. McKenzie, 46 So. 2d 184 (Fla. 1950).
43 See infra note 56.
44 24A Fla. Jur. 2d Executions §1 (2005). This conforms to the law of the nation generally. See 30 Am. Jur. 2d Executions and Enforcement of Judgments, §6 (2005), in which it was stated: “It has been said that a motion to enforce a judgment at law is neither an action nor a special proceeding already commenced.” See a similar conclusion regarding proceedings in aid of execution. Id. at §648.
45 Massey v. Florida Pineapple Orange Co., 100 So. 170, 171 (Fla. 1924). It is true that the Supreme Court continued with the following words: “and no action is necessary to obtain it except when a judgment becomes dormant, then, so far as the proceeding by scire facias is an action, the judgment may be revived so that execution under the statute may issue thereon. The proceeding is not original but a continuation of the former action.” Id. The court, however, clarified that statement in B.A. Lott, Inc. v. Padgett, 14 So. 667, 669 (Fla. 1943), when it held that the scire facias proceeding is not a new and independent action governed by §95.11(1) (2005).
46 McCallum v. Gornto, 174 So. 2d 24, 25 (Fla. 1937). The Fourth District Court of Appeal in Theodorou v. Burling, 438 So. 2d 400, 402 (Fla. 4th D.C.A. 1983), opined that “it would appear. . . that the word ‘action’ is, for all intents and purposes. . . synonymous with the word ‘case’ used in the Medical Medication Act.” The Fourth District also said that the word “action” as used in Rule of Civil Procedure 1.420(a)(1) denotes “an entire controversy.” See Edmonson v. Green, 755 So. 2d 701, 704 (Fla. 4th D.C.A. 1999).
47 The court in McGurn v. Scott, 596 So. 2d 1042, 1043 (Fla. 1992), said that “[i]t is well settled that a judgment attains the degree of finality necessary to support an appeal when it adjudicates the merits of the cause and disposes of the action between the parties, leaving no judicial labor to be done except the execution of the judgment.” See also First Dev., Inc. v. Bemaor, 449 So. 2d 290, 290 (Fla. 3d D.C.A. 1983) (holding that a writ of execution was merely a proceeding “in relation to the judgment”).
48 Fla. R. Civ. P. 1.050.
49 See Burdines, Inc. v. Drennon, 97 So. 2d 259, 260 (Fla. 1957) (applying certain property to the satisfaction of the judgment); Green v. Ry. Exp. Agency, 96 So. 2d 790, 791 (Fla. 1957) (involving a motion for an injunction to prevent the sale of levied property); Biscayne Realty & Ins. Co. v. Ostend Realty Co., 148 So. 560, 563 (Fla. 1933) (by dictum describing a creditor’s bill as ancillary to the original pleading); Logan v. Logan, 22 Fla. 561, 564 (1886), (describing a creditor’s bill as ancillary to the main suit); Williams Management Enter., Inc. v. Buonauro, 489 So. 2d 160, 167 (Fla. 5th D.C.A. 1986) (describing postjudgment garnishment and attachment as ancillary legal remedies); Hamilton v. Hanks, 309 So. 2d 229, 230 (Fla. 4th D.C.A. 1975) (describing postjudgment garnishment as ancillary), overruled by 5661 N. Dixie H’way, Inc. v. Capital Bank, 658 So. 2d 1037, 1038 (Fla. 4th D.C.A. 1995); Olin’s Rent-A-Car Systems, Inc. v. Avis Rental Car Systems of Fla., Inc., 135 So. 2d 434, 434 (Fla. 3d D.C.A. 1963) (involving discovery in aid of execution).
50 See Young v. McKenzie, 46 So. 2d 184, 185 (Fla. 1950) (citing Fla. Stat. §55.15 (1941) now repealed).
51 Law of 1941, §55.15 repealed by Law of 1967, §56.02, c. 67-254, §44, eff. June 26, 1967.
52 The statute was once numbered §2817 of the Revised General Statutes, and later renumbered §55.15.
53 Young, 46 So. 2d at 185 (quoting Fla. Stat. §55.15).
54 See id. at 184-46.
55 Id. at 186.
56 Law of 1967, §56.02, c.67-254, §44. eff. June 26, 1967. There is no legislative history revealing the reasons for its repeal.
57 Fla. Stat. §56.021 provides that when issued, an execution is valid and effective during the life of the judgment or decree on which it is issued. See Betaco, Inc. v. Countrywide Home Loans, Inc., 752 So. 2d 696, 697 (Fla. 2d D.C.A. 2000). Fla. R. Civ. P. 1.550(a) provides that “[e]xecutions on judgments shall issue during the life of the judgment.” Neither the statute nor the rule, however, define the “life” of the judgment.
58 The Florida Supreme Court has recently opined that: “the legislature is presumed to know the judicial construction of a law when enacting a new version of that law.” City of Hollywood v. Lombardi, 770 So. 2d 1196, 1202 (Fla. 2000) (citing Brannon v. Tampa Tribune, 711 So. 2d 97, 100 (Fla. 1st D.C.A.1998). The legislature did not enact a new version of §55.15; it left it repealed without replacement.
59 Nationwide Mut. Fire Ins. Co. v. Southeast Diagnostics, Inc., 766 So. 2d 229, 231 (Fla. 4th D.C.A. 2000).
60 It would seem that the life of an injunction is for a time that is “reasonable” under the circumstances of the case. See Advantage Digital Sys., Inc. v. Digital Imaging Serv., Inc., 870 So. 2d 111, 115 (Fla. 3d D.C.A. 2003).
61 See supra text accompanying note 60.
Richard H.W. Maloy is a visiting professor of law at St. Thomas University School of Law, Miami.
Cynthia Lynne, an attorney, is a title examiner for Attorneys’ Title Insurance Fund, Ft. Lauderdale.
The authors thank St. Thomas law student Jennifer Wioncek for her help in the preparation of this article and Magda Abdo-Gomez for invaluable discussions.