NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

PETER THOMAS STAVROU, ) ALEXANDRA STAVROU, and ) BESSY STAVROU, ) ) Appellants, ) ) v. ) Case No. 2D16-390 ) DESTINATION BOAT CLUBS, INC.; and ) ISLAND BREEZE BOAT CLUB AND ) RENTAL, INC., ) ) Appellees. ) ) Opinion filed May 31, 2017. Appeal from the Circuit Court for Lee County; Keith R. Kyle, Judge. Jack C. Morgan, III of Roetzel & Andress, LPA, Fort Myers, for Appellants. Dennis L. Avery of Avery, Whigham & Winesett, P.A., Fort Myers, for Appellee Destination Boat Clubs, Inc. No appearance for remaining Appellee.

MORRIS, Judge. Peter Thomas Stavrou, Alexandra Stavrou, and Bessy Stavrou ap peal from a final judgment upon impleader wherein the circuit court awarded Destination- 2 - Boat Clubs, Inc. (Destination), a total of $59,900 in proceedin gs supplementary. For the reasons explained herein, we affirm in part and reverse in part

. The proceedings supplementary awar d was based on the final judg ment

entered in a breach of contract action between Destination and Island Breeze Boat Club and Rental, Inc. (Island Breeze). Peter Stavrou was the sole o fficer and shareholder of Island Breeze. Judgment was render ed in favor of Destination i n the breach of contract action, and the circuit court awarded $10,000 (the equivalent o f Destination's escrow deposit) plus an award of attorneys' fees and costs in the amou nt of $36,552.90. Destination thereafter impleaded the three Stavrous individuall y and initiated the proceedings supplementary, argui ng that Peter improperly withhe ld the escrow deposit as well as $23,000 that Island Br eeze earned from boat sales an d that Peter improperly transferred $26,900 from Island Breeze's bank account to a join t bank account shared by the three Stavrous. Ultimately, the circuit court entered t he order on appeal, concluding (1) that Peter violated his fiduciary duties by keep ing the $10,000 escrow deposit, thereby preventing Destination from recovering at leas t a portion of the final judgment, (2) that Peter engaged in fraudulent transfers of the $10,000 deposit, the $23,000 earned from the boat sales, and the $26,900 that was mo ved from the Island Breeze bank account to the Stavrous' joint bank account, and (3 ) that Peter's actions justified piercing the corporate veil. The effect of the circu it court's order was to award all of the improperly transferred monies to Destination. Peter was held liable for the entire amount of the judgment while Alexandra and Bessy were he ld jointly and severally liable only for the $26,900.- 3 - On appeal, the Stavrous first argue that the circuit court er red by rendering a judgment against Peter in an amount that exceeded the amount that was owed to Destination under the original final judgment, and Destination concedes error on this point. A judgment in an ancillary proceeding 1 should not be entered in excess of the unpaid amount of the underlying judgment. See § 726.109(2), Fl a. Stat. (2015) (explaining that "to the extent a [fraudulent] transfer is void able in an action by a creditor under s. 726.108(1)(a), the creditor may recover judgment for t he value of the asset transferred . . . or the amount necessary to satisfy the credit or's claim" (emphasis added)); Mansolillo v. Parties by Lynn, Inc., 753 So. 2d 637, 6 40 (Fla. 3d DCA 2000) (applying section 726.109(2) to a judgment rendered in proceedi ngs supplementary); cf. Sec. Bank, N.A. v. BellSouth Advert. & Publ'g Corp., 679 So. 2d 795, 800 (Fla. 3d DCA 1996) (quoting Henry P. Trawick, Jr., Trawick's Florida Practic e and Procedure § 33-6, at 559 (1995 ed.), for the proposition that a judgment should n ot be entered against a garnishee in excess of the unpaid amount on the judgment agains t a garnishment defendant "or in excess of the garnishee's liability to the gar nishment defendant" (emphasis omitted)). And here, the underlying judgment was for $46,552.90 ($10,000 for the escrow deposit plus $36,552.90 for attorneys' fees and costs). However, we agree that Destination is entitled to recover prejudgment inter est running from the date of loss. See Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 215 (Fla. 1985); Mansolillo, 753 So. 2d at 640. Consequently, we reverse the fi nal judgment upon

1 The proceedings supplementary in th is case were ancillary postj udgment proceedings wherein Destination sought to recover fraudulently transferred monies. We reject the Stavrous' contention to the contrary. See Nat'l Aut o Serv. Ctrs., Inc. v. F/R 550, LLC, 192 So. 3d 498, 502 (Fla. 2d DCA 2016); Nat'l Mar. Se rvs., Inc. v. Straub, 776 F.3d 783, 788 (11th Cir. 2015).- 4 - impleader in part as against Peter. We affirm the final judgme nt upon impleader as against Alexandra and Bessy. 2 On remand, the circuit court should enter an amended final judgment upon impleader that reflects a judgment against Peter in an amount of $46,552.90 plus any prejudgment interest that has accrued from the various dates of loss. The judgment against Alexandra and Bessy jointly and sev erally for $26,900 should remain unchanged. We find no merit in the other two poi nts raised by the Stavrous in this appeal. Affirmed in part, reversed in part, and remanded for proceedi ngs in

conformance herewith.

WALLACE and ROTHSTEIN-YOUA KIM, JJ., Concur.

2 Because Alexandra and Bessy were only held jointly and severall y liable for the money that was transferred to the joint bank account ($ 26,900), no argument can be made that the final judgment upon impleader improperly award ed monies in excess of the underlying judgment as against them. Cf. Pollizzi v. Pa ulshock, 52 So. 3d 786, 790 (Fla. 5th DCA 2010) (explaining that third-party defendants can only be held responsible for returning improperly transferred monies that ar e in their possession). Thus we need not reverse the portion of the final judgment as a gainst them.