### FILED U.S.COURT OF APPEALS ELEVENTH CIRCUI T MARCH 27, 2003 THOMAS K. KAHN

CLERK [PUBL ISH] IN THE UNITED STATES COURT OF APPEALS FOR TH E ELEV ENTH C IRCUIT

____________________________

No. 02-12185

____________________________ D. C.Dock

et No. 00- 076 29- 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 Dis

trict of Florida

____________________________ (March 27, 2003) Before CAR NES, M ARCU S and SU HRHE INRICH *, Circuit Judges.

_________________ *Honorable Richa

rd F. Suhrheinric

h, United States Cir

cuit Judge for the

Sixth Circuit, sitting by designation.2

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 cla iming that i

t was time barr

ed. The distr

ict court agreed, based on its interpret

ation 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 sta te in wh ich the dis trict court is held.” Fed. R. Civ. P. 69(a). Once Buse registered hi s judgment in federal distr ict court in Florida, any effort s to execute on that judgment had to be in acc ordance with “the practice an d proce dure” o f Florid a. The law of Flor ida prov ides that: “An action on a j udgment or decree of any court, not

of record, of t

his stat e or any court of the United States, any ot her state or terri

tory in the United States,or a3

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 t he judgment, his action is t ime-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 distr ict court granted Kuechenberg’ s motion to dis miss or quash the

writ of execution. Of course, Buse dis agrees. He ta kes the posit

ion 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, 5 96 (Fla . 1st DCA 1980). The appellant in that case had obtai

ned a judgment in f

ederal court

and attempted t

o use a writ of mandamus f rom the stat

e courts to c ollect on t

he 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 re sult the f ive-year statute of limitations barred th e appellan t’s collection efforts. Id. at 596. Because we follow state intermediate appellate court deci sions 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 fol lowed the First

District Court of4

Appeal’s Kiesel holding in Balfour Beatty Bahamas, L td. v. Bush , 170 F.3d 1048, 1051 (11th Cir. 1999). In that case, as i n the Kiesel case and this case, a p arty attempted i

n a federal di strict

court in Florida to collect on a federa l judgment that

was m ore than five years old. Id. at 1049. Relyi ng upon Kiesel , we concluded that the “post-judgment collec tion efforts–which exceeded the five-y ear period–[were] barred by § 95.11(2)(a) as untimely.” Id. at 1051. The Kiesel pos ition , which we followed in Balfour Beatty Bahamas , is that collect ion efforts

are “act ion[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 deci sions on this issue, the corr

ect disposition of t

his appeal would be clear, but the view has been clouded by a de cision of anot her state intermedia

te appellate court r

eaching 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 preci se meaning as a c ommon 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 statute1 It could be argued–we cannot tell for sure whether Kue chenberg 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 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 deci sion in Balfour Beatty Bahamas and the First District Court of Appeal’s deci sion in Kiesel , and it certified the conflict between it s decision a

nd the Kiesel decision to the Flo rida Su preme C ourt, id. , giving the final arbi

ter of Florida law an oppo rtunity to resolve the split in the intermediate appellate courts,

see Fla . R. App. P. 9 .03 0(a )(2 )(A) (vi). I f that o

ppor tunit y had co me to fr

uit ion , we would not be struggling with the issue but inst ead 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 ofsettlemen t. The co nflict rem ains, and we are n ot the on es to reso lve it. 1 Accordingly, we ce

rtify t o the Florida Supre

me Court the foll

owing question:6 Does the statute of limit ations contained in Fla. Stat. § 95.11(2)(a) apply to bar t

he registr

ation of a j udgment and issuanc e 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 res trict the scope of i

nquiry by the Florida

Supreme Court, which is , of course,free to phras e or rephrase t he issues as it deems appropriate. If our brothers and sisters on that Court exercise their dis cretion t

o accept thi s certif

ication, 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 t

o be transmit

ted herewith. QUESTI ON CERTIFIED.