Art Remedy LLC. v. Lana Moes Art, LLC et al

Filing 152

ORDER denying 135 Motion for Judgment; granting 138 Cross-Motion to Dissolve Writ; denying as moot 139 Motion to Intervene; dissolving 121 Writ of Garnishment; and directing the unsealing of 120 Motion for Writ of Garnishment, 121 Writ of Garnishment, 123 Motion for Writ of Garnishment, and 124 Writ of Garnishment. Signed by Magistrate Judge Jared M. Strauss on 11/19/2020. See attached document for full details. (emd)

Case 0:18-cv-61912-JMS Document 152 Entered on FLSD Docket 11/19/2020 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 18-CV-61912-STRAUSS

ART REMEDY LLC,
Plaintiff,
v.
LANA MOES ART, LLC, et al.,
Defendants.
/
ORDER
THIS MATTER came before the Court for a hearing on November 6, 2020 upon Plaintiffs’
Motion for Final Judgment in Garnishment (“Motion for Judgment”) [DE 135], Defendants’
Opposition to Motion for Judgment in Garnishment and Cross-Motion to Dissolve Writ (“CrossMotion to Dissolve Writ”) [DE 138], and the Motion to Intervene by Ron Smith and Motion to
Dissolve Writ of Garnishment [DE 139] (“Motion to Intervene”). I have reviewed the motions
and the pertinent portions of the record. For the reasons stated on the record at the hearing, and
for the reasons discussed herein, it is ORDERED and ADJUDGED that the Motion for Judgment
is DENIED, the Cross-Motion to Dissolve Writ is GRANTED, the Motion to Intervene is
DENIED as moot, and the Writ of Garnishment [DE 121] previously served upon Wells Fargo
Bank, N.A. (“Garnishee”) is hereby DISSOLVED. The Clerk is DIRECTED to unseal docket
entry numbers 120, 121, 123, and 124. I find that good cause exists to unseal these docket entries,
which pertain to writs of garnishment that have already been served.

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BACKGROUND
On September 4, 2020, Plaintiff/Judgment Creditor filed Judgment Creditor’s Ex-Parte
Motion for Issuance of Writ of Garnishment to Garnishee (“Garnishment Motion”) [DE 120],
seeking the issuance of a writ of garnishment to Garnishee. The Clerk of Court issued the
requested Writ of Garnishment [DE 121] on September 8, 2020. Plaintiff then served the
Garnishment Motion and Writ of Garnishment on Garnishee on September 16, 2020 and on
Defendants, through their counsel, on September 18, 2020 [DE 122]. Plaintiff’s Notice of Service
of Writ of Garnishment [DE 122], filed on September 18, 2020, and served on Defendants’ counsel
via CM/ECF on the same date, also contained a copy of a Notice to Judgment Debtors of Right
Against Garnishment of Wages, Money and Other Property. At the November 6, 2020 hearing,
Plaintiff’s counsel confirmed that Defendants were not personally mailed or served with the
aforementioned garnishment documents and that only Defendants’ counsel was served (via
CM/ECF).
Garnishee filed an Answer [DE 125] to the Writ of Garnishment on September 23, 2020,
disclosing the existence of a bank account, containing $1,073.61, in the names of Svetlana Moes,
the individual Defendant/Judgment Debtor, and Ronny Smith, who is Ms. Moes’ husband.
Plaintiff’s notice of serving Garnishee’s Answer [DE 127] indicates that the Answer was mailed
to Defendants’ counsel or served upon him via CM/ECF. However, Plaintiff’s counsel confirmed
at the November 6, 2020 hearing that, like the other garnishment documents, Garnishee’s Answer
was not served on Ms. Moes or Mr. Smith by mail, but only on Defendants’ counsel (who has also
since appeared on behalf of Mr. Smith).

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Following the filing and service of Garnishee’s Answer, neither Defendants nor Mr. Smith
filed a timely motion to dissolve the Writ of Garnishment or a timely claim of exemption. 1
Consequently, Plaintiff filed its Motion for Judgment [DE 135] on October 16, 2020. Defendants
filed a timely response [DE 138] to the Motion for Judgment, seeking dissolution of the Writ of
Garnishment. Mr. Smith also separately filed his Motion to Intervene [DE 139], requesting that
the Court permit his intervention and dissolve the Writ of Garnishment. In seeking dissolution of
the Writ of Garnishment, Defendants and Mr. Smith argue, inter alia, that Plaintiff failed to comply
with the Florida garnishment statutes by not mailing the required garnishment documents to them
at their last known address.
ANALYSIS
Plaintiff’s failure to serve the requisite garnishment papers on Defendants and Mr. Smith
in the manner provided for under Chapter 77 of the Florida Statutes requires dissolution of the
Writ of Garnishment [DE 121]. “Under Florida law, ‘it is fundamental that garnishment statutes
must be strictly construed.’” Bozo v. Bozo, No. 12-CV-24174, 2013 WL 12128681, at *2 (S.D.
Fla. Sept. 18, 2013) (quoting Williams v. Espririto Santo Bank of Fla., 656 So. 2d 212, 213 (Fla.
3d DCA 1995)).
Relevant here are sections 77.041 and 77.055 of the Florida Statutes. Under section
77.041:
The plaintiff must mail, by first class, a copy of the writ of garnishment, a copy of
the motion for writ of garnishment, and, if the defendant is an individual, the
“Notice to Defendant” to the defendant’s last known address within 5 business days
after the writ is issued or 3 business days after the writ is served on the garnishee,
whichever is later. However, if such documents are returned as undeliverable by
the post office, or if the last known address is not discoverable after diligent search,
the plaintiff must mail, by first class, the documents to the defendant at the
1

There is no dispute that the time to file a motion to dissolve or a claim of exemption passed if
Plaintiff’s service of the garnishment documents was proper.
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defendant’s place of employment. The plaintiff shall file in the proceeding a
certificate of such service.
§ 77.041(2) (emphasis added).
Additionally, section 77.055 provides as follows:
Service of garnishee’s answer and notice of right to dissolve writ.—Within 5 days
after service of the garnishee’s answer on the plaintiff or after the time period for
the garnishee’s answer has expired, the plaintiff shall serve, by mail, the following
documents: a copy of the garnishee’s answer, and a notice advising the recipient
that he or she must move to dissolve the writ of garnishment within 20 days after
the date indicated on the certificate of service in the notice if any allegation in the
plaintiff’s motion for writ of garnishment is untrue. The plaintiff shall serve these
documents on the defendant at the defendant’s last known address and any other
address disclosed by the garnishee’s answer and on any other person disclosed in
the garnishee’s answer to have any ownership interest in the deposit, account, or
property controlled by the garnishee. The plaintiff shall file in the proceeding a
certificate of such service.
§ 77.055 (emphasis added).
Although Plaintiff served the documents required under sections 77.041 and 77.055 on
Defendants’ counsel, the plain language of the statutes required Plaintiff to serve the documents
on Defendants “by mail” at their last known address (under section 77.041, if discoverable after
diligent search, an issue not in dispute). However, Plaintiff admittedly did not do so, and service
on counsel alone is legally insufficient. See Bozo, 2013 WL 12128681, at *2. Moreover, Plaintiff
was required to serve the documents set forth in section 77.055 on Mr. Smith as well, who was
identified in the Garnishee’s Answer. However, Defendants’ counsel was not even Mr. Smith’s
counsel of record at the time. Accordingly, service was improper as a matter of law. It is also too
late to remedy the service issues given the strict time limits for service contained in sections 77.041
and 77.055.
For the foregoing reasons, I find that the Writ of Garnishment should be dissolved. See
Wiand for Valhalla Inv. Partners, L.P. v. Lee, No. 8:10-CV-210-T-17MAP, 2013 WL 12198454,

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at *1 (M.D. Fla. Oct. 31, 2013) (dissolving writ of garnishment due to the “fail[ure] to adhere to
the mailing requirements imposed in Florida’s garnishment scheme”).
CONCLUSION
The Motion for Judgment [DE 135] is DENIED, the Cross-Motion to Dissolve Writ [DE
138] is GRANTED, the Motion to Intervene [DE 139] is DENIED as moot, and the Writ of
Garnishment [DE 121] is DISSOLVED. The Clerk is DIRECTED to unseal docket entry
numbers 120, 121, 123, and 124.
DONE AND ORDERED in Fort Lauderdale, Florida, this 19th day of November 2020.

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