Rossi v. Billmyre

Filing 48

ORDER denying 47 Plaintiff's Motion for Writ of Garnishment to the Collier County Clerk of the Circuit Court. See Order for details. Signed by Magistrate Judge Mac R. McCoy on 7/5/2017. (JTM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICK ROSSI, an individual
Plaintiff,
v.

Case No: 2:15-cv-180-FtM-29MRM

GARY BILLMYRE,
Defendant.
/
ORDER
This cause comes before the Court on Plaintiff’s Motion for Writ of Garnishment to the
Collier County Clerk of the Circuit Court (Doc. 47) filed on June 27, 2017.
I.

Background
Plaintiff states that judgment was entered against Defendant Gary Billmyre on November

15, 2016, awarding Plaintiff $170,482.79, plus interest accruing at the rate of 0.7% per annum
since November 15, 2016. (Id. (citing Doc. 34)). Plaintiff notes that the Court later granted
Plaintiff’s Motion for Attorney Fees and Costs and entered an additional judgment against
Defendant in an amount totaling $13,424.28, plus interest accruing at the rate of 0.86% per
annum since January 11, 2017. (Id. (citing Docs. 36-37)). Plaintiff states that both judgments
remain unsatisfied. (Id. at 2).
Plaintiff seeks the issuance of a writ of garnishment against the Collier County Clerk of
the Circuit Court in connection with a Supplemental Final Judgment Inclusive of Fees and Costs
(“Collier County Judgment”) entered on October 4, 2016 against John Pulling, Jr. and Marsha
Pulling and in favor of Gary Billmyre and Billmyre Enterprises, Inc. by the 20th Judicial Circuit
Court in and for Collier County, Florida in the matter styled Pulling v. Billmyre Enterprises, Inc.,

Collier County Circuit Court Case No. 10-5553-CA. (Id.). Plaintiff states that the Collier
County Judgment awarded Defendant Gary Billmyre and Billmyre Enterprises, Inc. an amount
totaling $289,528.28 against John Pulling, Jr. and Marsha Pulling. (Id.). Plaintiff notes that this
Court previously issued writs of garnishment directed to Billmyre Enterprises, Inc., John Pulling,
Jr., and Marsha Pulling in connection with the Collier County Judgment. (Id. (citing Docs. 4042)).
Plaintiff states that, on June 21, 2017, counsel for John Pulling, Jr. and Marsha Pulling
informed Plaintiff that a civil supersedeas bond in the amount of $317,554.61 was posted with
the Collier County Clerk of the Circuit Court in connection with an appeal of the Collier County
Judgment. (Doc. 47 at 2-3). Plaintiff states that the supersedeas bond will ensure payment of the
Collier County Judgment to Defendant Gary Billmyre and Billmyre Enterprises, Inc. in the event
that the appeal by John Pulling, Jr. and Marsha Pulling of the Collier County Judgment is
unsuccessful. (Id. at 3). Plaintiff states that he is seeking the issuance of a writ of garnishment
directed to the Collier County Clerk of the Circuit Court for the purpose of attaching the bond
and perfecting its garnishment of the Collier County Judgment in the event the Collier County
Clerk of the Circuit Court is required to issue payment to Defendant Billmyre under the terms of
the bond in connection with the Collier County Judgment. (Id.).
II.

Legal Standards
Pursuant to Fed. R. Civ. P. 69(a), “[t]he procedure on execution – and in proceedings

supplementary to and in aid of judgment or execution – must accord with the procedure of the
state where the court is located, but a federal statute governs to the extent it applies.” Under
Florida law, garnishment is governed by Fla. Stat. § 77.01, et. seq. The statute provides:
Every person or entity who has sued to recover a debt or has recovered judgment
in any court against any person or entity has a right to a writ of garnishment, in the

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manner hereinafter provided, to subject any debt due to defendant by a third person
or any debt not evidenced by a negotiable instrument that will become due
absolutely through the passage of time only to the defendant by a third person, and
any tangible or intangible personal property of defendant in the possession or
control of a third person.
Fla. Stat. § 77.01.
“After judgment has been obtained against defendant but before the writ of garnishment
is issued, the plaintiff, the plaintiff’s agent or attorney, shall file a motion (which shall not be
verified or negative defendant’s exemptions) stating the amount of the judgment.” Fla. Stat. §
77.03. Additionally, pursuant to Fla. Stat. § 77.04:
The writ shall require the garnishee to serve an answer on the plaintiff within 20
days after service of the writ stating whether the garnishee is indebted to the
defendant at the time of the answer, or was indebted at the time of service of the
writ, plus up to 1 business day for the garnishee to act expeditiously on the writ, or
at any time between such times; in what sum and what tangible or intangible
personal property of defendant the garnishee has in his or her possession or control
at the time of his or her answer, or had at the time of the service of the writ, or at
any time between such times; and whether the garnishee knows of any other person
indebted to defendant, or who may have any of the property of defendant in his or
her possession or control. The writ shall state the amount named in plaintiff’s
motion. If the garnishee is a business entity, an authorized employee or agent of
the entity may execute, file, and serve the answer on behalf of the entity.
Moreover, under Florida law, post-judgment writs of garnishment may be issued ex parte
and without notice to the judgment debtor. Blitz Telecom Consulting, LLC v. Peerless Network,
Inc., No. 6:14-cv-307-ORL-40GJK, 2016 WL 7134831, at *1 (M.D. Fla. Apr. 5, 2016), order
dissolved, No. 6:14-cv-307-ORL-40GJK, 2016 WL 7394561 (M.D. Fla. Apr. 29, 2016) (citing
United Presidential Life Ins. Co. v. King, 361 So. 2d 710, 713 (Fla. 1978)); see also Commc’ns
Ctr., Inc. v. Komatsu, No. 6:05-cv-1254-Orl-31GJK, 2008 WL 2717669, at *1 (M.D. Fla. June
27, 2008).
In looking at the garnishment statute, Florida courts have noted that Fla. Stat. § 77.01
“allows garnishment only of ‘any debt due to defendant by a third person.’” Tomlin v. Anderson,

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413 So. 2d 79, 82 (Fla. 5th Dist. Ct. App. 1982). Florida courts have held that judgments may be
garnished. Florida Steel Corp. v. A. G. Spanos Enters, Inc., 332 So. 2d 663, 664 (Fla. 2d Dist.
Ct. App. 1976) (citing Jax Ice and Cold Storage Co. v. South Fla. Farms Co., 109 So. 212
(1926)). Nevertheless, under the statute, “a debt, to be subject to garnishment, must be due
absolute and without contingency.” Tomlin, 413 So. 2d at 82 (citing Cobb v. Walker, 198 So.
324 (1940)). Contingent or unliquidated sums of a debt are not subject to garnishment under
Florida law. Matter of Armando Gerstel, Inc., 43 B.R. 925, 933 (Bankr. S.D. Fla. 1984), aff’d in
part, rev’d in part, 65 B.R. 602 (S.D. Fla. 1986). Florida courts have noted that “[i]f there is
anything contingent or to be done by a person before the liability of another becomes fixed, there
is not such an ‘indebtedness due’ as contemplated by the statute to which a writ of garnishment
can apply.” Id. (citing West Fla. Grocery Co. v. Teutonia Fire Ins. Co., 77 So. 209 (1917)). On
this point, due to its contingent nature, Florida’s Second District Court of Appeal has indicated
that no judgment of garnishment and execution may be taken while a judgment is superseded
pending appeal. See Florida Steel, 332 So. 2d at 665. Stated differently, judgments may not be
garnished until a judgment becomes final and is no longer subject to appeal. See id.
The Court notes that the present motion deals with a request to garnish the funds of a
supersedeas bond. A supersedeas bond is a bond posted in a trial court to ensure payment of a
final judgment in the event an appeal is unsuccessful. See Fla. R. App. P. 9.310. Florida’s Third
District Court of Appeal has held that “funds used to post [a] supersedeas bond are not
garnishable while in the depository of the court.” Schmitt v. Boyle, 598 So. 2d 165, 165 (Fla. 3d
DCA 1992) (citing Leatherman v. Gimourginas, 192 So. 2d 301, 302 (Fla. 3d DCA 1966)).
Thus, because judgments may not be garnished until a judgment becomes final and is no longer
subject to appeal, the funds used to post a supersedeas bond are also not garnishable until a

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judgment becomes final and is no longer subject to appeal. See Schmitt, 598 So. 2d at 165;
Florida Steel, 332 So. 2d at 665.
While the funds used to post a supersedeas bond are not garnishable while in the
depository of the court pending an appeal, this fact does not typically prevent the issuance of a
writ of garnishment for the judgment. See Florida Steel, 332 So. 2d at 665. In fact, a writ of
garnishment generally may be issued and, if the appeal is affirmed, then the plaintiff “would be
entitled to a judgment of garnishment and should be in a position to stand in the shoes of the
defendant to the extent of being able to collect upon the supersedeas bond.” Id. The
garnishment proceedings, however, are stayed by the trial court while the appeal is pending. Id.
While the above-stated procedure appears to be effective when all of the proceedings are
before the same court, this procedure appears to run into significant issues when all of the
proceedings are not before the same court. For instance, in Leatherman v. Gimourginas, certain
funds were deposited in the registry of the circuit court in Dade County, Florida. 192 So. 2d at
301. Before those funds could be disbursed, however, the clerk of the circuit court was served
with a writ of garnishment issued by another trial court. Id. at 302. The other trial court entered
final judgment in garnishment against the clerk of the circuit court, but the Florida Third District
Court of Appeal reversed. Id. The court noted that generally “funds in custodia legis” – i.e.,
funds held by the court – “are not garnishable.” Id. Additionally, the court noted that because
the clerk of the circuit court “is merely a ministerial officer of the court,” the clerk might be
subject to contempt proceedings by complying with another trial court’s potentially contradictory
order to deliver the garnished funds. See id. As a result, the court reversed the final judgment in
garnishment against the clerk of the circuit court. Id.

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While the Court reversed the final judgment in garnishment, the court stated that “[n]o
sympathy is found with the efforts by the judgment debtor to escape its lawful obligations.” Id.
The court specifically noted various options available to the judgment creditor including seeking
appropriate relief either through an intervention or through an independent suit. Id.
III.

Analysis
Turning to the present case, Plaintiff is seeking the issuance of a writ of garnishment to

the Collier County Clerk of the Circuit Court for the funds posted for a supersedeas bond. (See
Doc. 47 at 3; see also Doc. 47-1). As an initial matter, the funds posted for the supersedeas bond
and deposited with the Collier County Clerk of the Circuit Court may not be garnished while
they are in the court registry. See Schmitt, 598 So. 2d at 165. Instead, the funds used to post the
supersedeas bond are only subject to garnishment after the judgment becomes final and is no
longer subject to appeal. See Schmitt, 598 So. 2d at 165; Florida Steel, 332 So. 2d at 665.
As indicated above, a writ of garnishment typically may be issued even though the funds
used to post the bond may not be garnished. See Florida Steel, 332 So. 2d at 665. Nevertheless,
the proposed writ of garnishment in the present case appears to be similar to the impermissible
garnishment proceedings that occurred in Leatherman. Here, as in Leatherman, another trial
court has funds deposited in its registry. See Leatherman, 192 So. 2d at 301. Specifically, the
funds posted for the supersedeas bond are deposited with the Collier County Clerk of the Circuit
Court and not with the Clerk of Court for the United States District Court for the Middle District
of Florida. (See Doc. 47-1). As stated above, significant issues arise when all of the proceedings
are not before the same court. In this action, the situation of the Collier County Clerk of the
Circuit Court is analogous to the clerk in Leatherman. As in Leatherman, because the Collier
County Clerk of the Circuit Court is merely a ministerial officer, a writ issued by this Court

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compelling the clerk to deliver the garnished funds may cause the clerk to be subject to contempt
proceedings in Collier County for not complying with court orders there. See id. In Leatherman,
the court refused to allow the garnishment proceedings under those circumstances. See id.
Similarly, here, the Court cannot find that a writ of garnishment issued to the Collier County
Clerk of the Circuit Court is permissible under the circumstances. See id.
While the Court finds that a writ of garnishment is not appropriate under the
circumstances, it does not appear that Plaintiff is without options. As the Court in Leatherman
noted, Plaintiff – as a judgment creditor – may seek other appropriate relief, including
intervention or an independent lawsuit. See id. Nevertheless, as presently filed, Plaintiff’s
Motion and Writ of Garnishment do not appear to comply with applicable Florida law.
Accordingly, pursuant to M.D. Fla. R. 6.01(c)(19) and based on the papers filed by
Plaintiff, the Court hereby ORDERS that Plaintiff’s Motion for Writ of Garnishment to the
Collier County Clerk of the Circuit Court (Doc. 47) is DENIED.
DONE AND ORDERED in Fort Myers, Florida on July 5, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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