DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2012
DEAN PERRONE and DATA BASE STORES, INC.,
Appellants,
v.
EDWIN FRANK, ESTHER FRANK and DB STORES OF DAVIE,
Appellees.
No. 4D10-3640
[February 8, 2012]
CIKLIN, J.
Dean Perrone and Data Base Stores, Inc. (collectively referred to as
the “appellants”) appeal the trial court’s entry of a final judgment in
proceedings supplementary, in which the trial court found that Data
Base Stores, Inc.’s corporate veil should be pierced and that Perrone
should b e personally liable. The final judgment was based upon a
magistrate’s report and recommendations, to which the appellants filed
timely exceptions, which the trial court overruled. The appellants argue
that the magistrate’s findings were not supported b y competent,
substantial evidence, an argument with which we agree. Therefore, we
reverse the final judgment and the order adopting the magistrate’s report
and recommendations. Having reviewed the appellants’ other points on
appeal, we find them without merit and choose not to discuss them
further.
In 2001, Edwin and Esther Frank obtained a final judgment against
DB Stores of Davie, Inc. In July 2003, the Franks filed a motion for
proceedings supplementary to execution, which sought to implead Data
Base Stores, Inc. and its sole owner, Perrone, individually. The Franks
alleged that Data Base Stores, Inc. was a mere continuation of DB Stores
of Davie, Inc., created to avoid the latter entity’s debt under the original
final judgment. The Franks also alleged that Data Base Stores, Inc. was
a fraudulent entity whose corporate veil should be pierced to find Perrone
individually liable. Pursuant to section 56.29, Florida Statutes (2003),
the Franks requested an examination of Perrone and Data Base Stores,
Inc. The trial court referred the matter to a general magistrate, who held
a hearing on May 3, 2005.
At the hearing, only Perrone testified. At the end of the hearing, the
magistrate concluded that Perrone was not a credible witness and had
not been entirely forthcoming in his testimony. Subsequently, the
magistrate issued her report and recommendations finding that the
appellants should be held liable for the debts of the original judgment
debtor, DB Stores of Davie, Inc. The magistrate concluded in the report
that Data Base Stores, Inc. was a successor corporation to and alter ego
of DB Stores of Davie, Inc. The magistrate also found that Data Base
Stores, Inc. was a mere instrumentality and alter ego of Perrone and that
it was organized or used for fraudulent purposes.
The report
recommended entry of a final judgment against the appellants, jointly
and severally, for the amount of the outstanding judgment lien against
DB Stores of Davie, Inc.
The appellants filed timely exceptions to the magistrate’s report and
recommendations, which the trial court denied. Subsequently, the trial
court entered a n order adopting the magistrate’s report and
recommendations entirely. In August 2010, the trial court issued a final
judgment in proceedings supplementary. In it, the trial court found the
appellants jointly and severally liable for the amount of the outstanding
judgment lien. The appellants timely appeal the final judgment.
On appeal, the appellants argue that the magistrate’s findings were
not supported by competent, substantial evidence. We agree.
We review a trial court’s decision to accept or reject a magistrate’s
conclusions for an abuse of discretion. In re Drummond, 69 So. 3d 1054,
1057 (Fla. 2d DCA 2011). As explained by the Second District, however,
the trial court’s discretion is narrower here than in other circumstances:
Because the trial court sits in its reviewing capacity when it
makes such a decision and because in most instances the
district court will b e reviewing identical information on
appeal, the discretion afforded the trial court to override the
magistrate is undoubtedly narrower than the discretion we
provide to trial courts in a context where the trial court is
making its own findings of fact.
Id. at 1057-58 (footnote omitted).
Comparing the magistrate report’s factual findings, which are
intertwined with legal conclusions, against the transcripts from the
hearing, we are compelled to conclude that the magistrate’s factual
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findings were not supported by competent, substantial evidence. We do
not question the magistrate’s finding that Perrone was not a credible
witness. Indeed, as the fact finder, the magistrate was in the best
position to make this credibility determination. However, Perrone was
the sole witness to testify, so his lack of credibility, if anything, left a
vacuum of evidence. In other words, because Perrone’s testimony was
not credible, the magistrate was free to reject it, but no other evidence of
any kind remained upon which the magistrate could have based her
findings.
Thus, the trial court’s adoption of the magistrate’s report and
recommendations, over timely exceptions, was an abuse of discretion.
Further, the final judgment entered by the trial court, which was
predicated on the adoption of the magistrate’s recommendations, was
also erroneous. Therefore, we vacate the final judgment and reverse the
order adopting the magistrate’s report and recommendations.
Reversed and remanded for further proceedings consistent with this
opinion.
GERBER and CONNER, JJ., concur.
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*
*
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mily Rodriguez-Powell and Patti Englander Henning,
Judges; L.T. Case No. 00-016061 CACE (03).
J. Clark Dixon and John M. Camillo of Camillo & Snowden, P.A., Fort
Lauderdale, for appellants.
Mark W. Rickard of Jacobson, Sobo & Moselle, Plantation, for appellee
Esther Frank.
Not final until disposition of timely filed motion for rehearing.
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