Avenada, Inc. v. City Nat. Bank of Lauderhill

• Decision Date: 16 October 1979
• Docket Number: No. 79-171,79-171
• Citation: 375 So.2d 883
• Parties: AVENADA, INC., Appellant, v. CITY NATIONAL BANK OF LAUDERHILL, Appellee.
• Court: Florida District Court of Appeals

Page 883

375 So.2d 883

AVENADA, INC., Appellant, v. CITY NATIONAL BANK OF LAUDERHILL, Appellee.

No. 79-171.

District Court of Appeal of Florida, Third District.

Oct. 16, 1979.

Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff and Marlene K. Silverman, Miami, for appellant.

Broad & Cassel and Lewis I. Horwitz, Bay Harbor Island, for appellee.

Before PEARSON and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

SCHWARTZ, Judge.

The appellant, Avenada, Inc., was a post-judgment garnishee in the court below. It seeks review of a final money judgment entered against it and in favor of the original plaintiff-judgment creditor, the City National Bank of Lauderhill, upon the court's granting of the plaintiff's motion for judgment on the writ and answer. We reverse.

The record shows that after the bank had obtained a $61,835.42 judgment against Spartan Tile & Marble, Inc., it served a writ of garnishment on Avenada. On December 19, 1978, Avenada filed an answer to the writ which stated that it owed Spartan the sum of $34,920.00. The bank immediately moved for the entry of judgment in its favor in that amount and noticed a hearing on the motion for January 5, 1979. On that date, 17 days after the original answer, Avenada filed an amended answer which stated that, in fact, the garnishee had various claims and set-offs against Spartan arising from an alleged breach of contract which reduced or eliminated the $34,920.00 amount it otherwise owed the defendant on a separate open account. The amendment therefore denied the indebtedness altogether.

Although the garnishee claimed the applicability of Fla.R.Civ.P. 1.190(a) and therefore contended primarily that it was entitled to file the amendment as of right, it also, "out of an abundance of caution," sought leave of court to amend the answer. At the hearing, the trial court both declined to recognize the viability of the amended answer and denied the motion to amend. It therefore granted the bank's motion for the entry of judgment for $34,920.00 in accordance with the original answer.

Reversal is required for two separate reasons. In the first place, the garnishee was entitled to amend its pleading at the time in question as of right. Fla.R.Civ.P. 1.190(a), which plainly is applicable to garnishment proceedings, Corbin v. St. Lucie River Co., 78 So.2d 396 (Fla.1955); Florida Power & Light Co. v. Crabtree Construction Co., Inc., 283 So.2d 570 (Fla. 4th DCA 1973); see Hauser v. Dr. Chatelier's Plant Food Co., Inc., 350 So.2d 548 (Fla. 2d DCA 1977); Country Clubs of Sarasota, Ltd. v. Zaun Equipment, Inc., 350 So.2d 539 (Fla. 1st DCA 1977), provides:

(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty days after it is served. . . .

No responsive pleading is appropriate to an answer in garnishment and the cause below had not been placed on the trial calendar. By the plain terms of the rule, therefore, Avenada was permitted, as it did, to file its amended answer "as a matter of course" and...