CopyCited 19 times | Published | Florida 3rd District Court of Appeal | 1996 WL 410683
...The plaintiff must propound discovery to the garnishee, or subpoena the garnishee to give evidence, in order "to ascertain the correct amount of the garnishee's obligation before entry of final judgment against the garnishee." Id. (footnote omitted). D. BellSouth argues, however, that the judgment is authorized by subsection 77.081(2) of the garnishment statute. We disagree. Subsection 77.081(2) applies only to prejudgment garnishment and has no application to the present case. The statute relied on by BellSouth states: 77.081 Default; Judgment. (1) If the garnishee fails to answer as required, a default shall be entered against him....
...Under subsection
77.06(1), the garnishee is only liable for debts due by the garnishee to the defendant, and for tangible or intangible personal property of defendant which is in possession of the garnishee. Subsection
77.06(1) by its terms applies to all writs of garnishment. Subsection
77.081(2), relied on by BellSouth, must be read in pari materia with subsection
77.06(1). It follows that in a default situation, the garnishee's liability cannot exceed the amount prescribed by subsection
77.06(1). What, then, is the purpose of subsection
77.081(2)? By its plain words, subsection
77.081(2) applies only to a prejudgment writ of garnishment. [6] The history of subsection
77.081(2) shows that it was drawn from prior statutory provisions dealing exclusively with prejudgment garnishment. [7] There are cases which assume, without discussion, that subsection
77.081(2) applies to post-judgment garnishment, see International Travel Card, Inc....
...Hendricks Enterprises,
371 So.2d 1105, 1106 (Fla. 4th DCA 1979); Hauser v. Dr. Chatelier's Plant Food Co.,
350 So.2d at 550, 1 Stephen B. Rakusin, Florida Creditors' Rights Manual § 2.08B.2, at 146 (1995), but there is no indication in those cases that the inapplicability of subsection
77.081(2) was called to the attention of the court. We also conclude that BellSouth misapprehends the problem which subsection
77.081(2) is designed to address....
...intiff expects to recover...." §
77.19, Fla.Stat. When a prejudgment garnishee is holding double the amount which plaintiff seeks, and the prejudgment garnishee defaults, when should judgment be entered against the garnishee, and in what amount? Subsection
77.081(2) supplies the answer....
...covery" default judgment. Notwithstanding *802 that there has been a default, plaintiff can only obtain judgment against the garnishee for the amount of the plaintiff's judgment against the original defendant, plus interest and costs. Id. In sum, subsection 77.081(2) places a cap on plaintiff's recovery where a prejudgment garnishee has withheld amounts that exceed the plaintiff's judgment in the underlying action, plus interest and costs....
...[5] There is a right to jury trial in a garnishment proceeding, §
77.08, Fla.Stat., although there was no jury trial demand in this case. Where there is no disputed issue of material fact, a motion for summary judgment with notice to the defaulting party is, of course, permissible. [6] The first sentence of subsection
77.081(2) states, " On the entry of judgment for plaintiff, a final judgment shall be entered against the garnishee...." Id....
...The third sentence states, "If the claim of the plaintiff is dismissed or judgment is entered against him the default against garnishee shall be vacated...." Id. This circumstance arises only where there is a prejudgment writ of garnishment. [7] Both the Note to section 77.081 of the Florida Statutes, and the annotation to chapter 77 of Florida Statutes Annotated report that section 77.081 is the successor to sections 77.20 and 77.21, Florida Statutes (1965). § 77.081 (Note), Fla.Stat....
...3d DCA 1980), review denied,
397 So.2d 778 (Fla.1981); Keyes Co. v. Sens,
382 So.2d 1273, 1276 (Fla. 3d DCA 1980). Pet Fair, Inc. v. Humane Society of Greater Miami,
583 So.2d 407, 409 (Fla. 3d DCA 1991) (emphasis added). [12] This result is consistent with the rationale of section
77.081 which makes the defaulting garnishee liable for the full amount of the plaintiff's claim with interest and costs. True, it is nowhere explicitly stated that section
77.081, which was part of the formerly separate prejudgment interest provisions, is intended to now apply to postjudgment garnishment as well. However, I agree with the cited holdings of the First, Second, and Fourth District Courts of Appeal that section
77.081 applies to postjudgment garnishments....
...Subsection
77.06(1) makes the garnishee liable to the plaintiff for the assets of the garnishment defendant, whatever amount they may be, upon service of the writ. The garnishee's subsequent answer would address the specific amount of assets. The garnishee's refusal to answer compels the conclusion under subsection
77.081(2) that the garnishee holds sufficient assets to cover the full amount of the plaintiff's judgment plus interest and costs. In the case of prejudgment garnishment, the legislature, with section
77.081, had enacted a provision which could, in the case of default, require a prejudgment garnishee bank to pay 100 times or more than the amount the defendant had on deposit....
CopyCited 10 times | Published | Supreme Court of Florida | 1997 WL 476112
...ney or property held by the garnishee bank. Thus, the district court concluded that final judgment could not be entered against the garnishee bank after default without notice of trial on damages. Id. at 799-800. BellSouth had argued that on default section
77.081(2), Florida Statutes (1995), [2] creates a penalty so that the garnishee becomes liable for the full amount of a plaintiff's underlying judgment against the original defendant. Id. at 800-01. However, the district court found section
77.081(2) only applicable to prejudgment garnishment and further concluded that when this section is read in pari materia with the rest of the garnishment statute, it was clear that Security Bank's liability in default could not exceed the amount prescribed in section
77.06(1)....
...ded a clear statement of the amount of the judgment against Garfield. Id. at 804-05 (Jorgenson, J., dissenting). This Court accepted review on the basis of conflict with International Travel Card, Sentry Indemnity, and Hauser on the issue of whether section 77.081(2) applies to a postjudgment writ of garnishment....
...BellSouth's garnishment claim against Security Bank was for an unliquidated sum. Thus, BellSouth was required to give notice of trial on damages and to adduce proof of the amount of Garfield's money held by Security Bank. [3] Accordingly, we find that section 77.081(2) applies only to a prejudgment writ of garnishment and that a writ of garnishment under chapter 77 asserts a claim for an unliquidated sum....
...The interpretation of the garnishment statute that the majority adopts renders the default provision a nullity. It is also contrary to the common understanding of Florida's garnishment statute, as evidenced by opinions from other courts. See, e.g., Loftin v. Rush,
767 F.2d 800, 808 (11th Cir.1985) (citing section
77.081 as an example of a statute that renders defaulting garnishee liable for the entire claim of the judgment creditor); Sentry Indemnity Co. v. Hendricks Enters.,
371 So.2d 1105 (Fla. 4th DCA 1979) (applying section
77.081 to postjudgment garnishment)....
...The facts constituting excusable neglect were set forth in an unsworn motion and were unsupported by any affidavit or other proof. Id. Thus, the trial court properly refused to set aside the default based upon this motion. I would affirm that decision in its entirety. I respectfully submit that the legislature should review section 77.081 and clarify whether this default provision applies to both prejudgment and postjudgment garnishments....
...him or her to defendant and for any tangible or intangible personal property of defendant in the garnishee's possession or control at the time of the service of the writ or at any time between the service and the time of the garnishee's answer. [2] Section 77.081, Florida Statutes (1995), provides: (1) If the garnishee fails to answer as required, a default shall be entered against him or her....
