Barniv v. BankTrust
| Decision Date | 28 December 2012 |
| Docket Number | Case No. 3:12cv394/MCR/EMT |
| Parties | CHARLES B. BARNIV, et al., Plaintiffs, v. BANKTRUST, an Alabama Corporation, Defendant. |
| Court | U.S. District Court — Northern District of Florida |
The court previously granted summary judgment in favor of the defendant on Count II of the First Amended Complaint, and denied (without prejudice to refiling) the defendant's motion for summary judgment on Count I, finding that the allegations were sufficient to state a claim but declining to rule on summary judgment until the parties had an opportunity to fully develop the record. (Doc. 34). The defendant now moves for reconsideration of the summary judgment order as to Count I on grounds that the court failed to rule on the legal issue of probable cause, arguing there are no material disputes of fact on the record to preclude entry of summary judgment and that it is entitled to judgment as a matter of law (doc. 37). The plaintiffs oppose the motion (doc. 42).
No final judgment has been entered in this case, and therefore, the court's summary judgment order is subject to revision under the court's "inherent power to reconsider and revise its orders in the interests of justice." Delta Health Group, Inc. v. U.S. Dep't of Health and Human Servs., 459 F. Supp. 2d 1207, 1227-28 (N.D. Fla. 2006). The Federal Rules of Civil procedure recognize the district court's broad discretion to reconsider interlocutory orders, noting that an order adjudicating fewer than all claims does not end the action as to any of the claims "and may be revised at any time before the entry of a judgmentadjudicating all the claims." Fed. R. Civ. P. 54(b); see also Bryant v. Jones, 696 F. Supp. 2d 1313, 1320 (N.D. Ga. 2010).
Under Florida law, the elements of a claim for wrongful garnishment are the same as for a claim of malicious prosecution. See Burshan v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 805 So. 2d 835, 844-45 (Fla. 4th DCA 2001). The elements are: (1) the commencement or continuation of a proceeding; (2) legal causation by defendant against the plaintiff, who was the defendant in the original proceeding; (3) bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for the proceeding; (5) the presence of malice;1 and (6) damages. Adams v. Whitfield, 290 So. 2d 49, 51 (Fla. 1974); see also Burshan, 805 So. 2d at 845. 13 Fla. Jr. 2d Creditors' Rights § 192 (database updated Nov. 2012) 2 ). Probable cause is a legal question if the facts are not in dispute. See Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002); Dampier v. Morgan Tire & Auto, LLC, 82 So. 3d 204, 206 (Fla. 5th DCA 2012); see also Alterra Healthcare Corp. v. Campbell, 78 So. 3d 595, 602 (Fla. 2d DCA 2011) () (internal marks omitted).
In its prior summary judgment order (doc. 34), the court concluded that the plaintiffs had stated a claim and declined to analyze the probable cause issue on grounds that itwould be better to do so on the basis of a fully developed record.3 On reconsideration, however, it is clear, even at this early stage of the proceedings, that the plaintiffs have not identified any material disputes of fact bearing on probable cause that exist or require further discovery, and thus, summary judgment should be entered on Count I.
The state court proceedings show that Judge Green issued a "Final Summary Judgment as to Counts Two and Three" on February 15, 2011, against the Barnivs and Witkind for the total sum of $1,979,163.86, stating, "for all of which let execution issue" and also stating that the court reserved jurisdiction to enter such further orders and judgment as may be necessary (doc. 8-6). The Barnivs and Witkind moved to set aside the order, and Judge Green denied the motion in April 2011. BankTrust recorded the judgment on June 24, 2011. The appeal of the order to the First District Court of Appeal was dismissed on August 4, 2011, see 66 So. 3d 409, with the court merely citing Conti v. B & EHoldings, LLC, 61 So. 3d 1272 (Fla. 1st DCA 2011).4 Meanwhile, in May 2011, the Barnivs and Witkind had filed a motion seeking to disqualify Judge Green. Judge Green noted that he lacked jurisdiction because of the appeal, and counsel for the Barnivs and Witkind then filed a mandamus action against him in July for his failure to rule on the motion. On August 5, 2011, the day after the appeal was dismissed, Judge Green entered an order disqualifying himself from the case, and the clerk reassigned the case to Judge Wells.
On September 20, 2011, Judge Wells held a hearing on the Barniv and Witkind's request for rehearing or to set aside the summary judgment order in light of Judge Green's recusal, which Judge Wells denied. Judge Wells also commented that a stipulated amendment contemplated by the parties, in which the Barnivs and Witkind would add counterclaims (but not affirmative defenses) would be permitted, but a proposedamendment was not before the court at that time.
On November 29, 2011, BankTrust filed a motion for writs of garnishment (doc. 10-1), attaching Judge Green's February 15, 2011, summary judgment order and representing a belief that the Barnivs and Witkind did not have in their possessions visible property on which a levy could be made to satisfy the judgment. Judge Wells signed the orders directing issuance of the writs of garnishment on December 2, 2011. On December 6, 2011, the Barnivs and Witkind filed an emergency motion to quash the writs, asserting that the summary judgment order was not final and informing the trial court that the First District Court of Appeal had dismissed the appeal of the order for this reason. Judge Wells held oral argument on the motion on December 20, 2011. The parties' arguments centered upon whether the order, though found to be nonappealable, was nonetheless executable because it was final as to the indebtedness of the Barnivs and Witkind on the notes and guarantees. They were not named on the remaining count of foreclosure, and the trial court had denied the motion for rehearing in September 2011. BankTrust argued that it had fulfilled the procedural prerequisites pursuant to Fla. R. Civ. P. 1.550(a), which provides that no execution shall issue "until the judgment on which it is based has been recorded nor within the time for serving a motion for new trial or rehearing," or until after a timely rehearing motion has been determined.5 The Barnivs and Witkind, on the other hand, argued it was axiomatic that a nonfinal order was not an executable judgment and requested sanctions against BankTrust for acting in bad faith, to which BankTrust responded that it would not have objected to a motion to stay if they had filed one and posted a bond to protect the bank. After hearing and considering the parties' arguments, Judge Wells denied the emergency motion to quash and did not impose sanctions but stated that the Barnivs and Witkind could move to stay the garnishment. Their counsel stated on the record that they would not do so. Subsequently, on December 27, 2011, Judge Wells entered a written order granting a motion to file counterclaims within 20 daysof the order and granting BankTrust 10 days to respond to them.
On April 27, 2012, on appeal of the order denying the emergency motion to quash, the First District Court of Appeal reversed "because appellants' counterclaims against appellee remain pending." Barniv v. BankTrust, 85 So. 3d 581, 582 (Fla. 1st DCA 2012). On July 16, 2012, Judge Wells quashed the writs of garnishment consistent with the appellate court order.
Now, having fully reviewed the record in light of the defendant's arguments, the court finds that the plaintiffs have not identified any material issue of fact in dispute or any issue of fact needing further discovery on probable cause and that on this record, they cannot demonstrate an absence of probable cause, which is an essential element of their wrongful garnishment claim. The plaintiffs argue that there was no final executable judgment and that BankTrust cannot rely on the denial of the motion to quash as establishing probable cause because the order was subsequently reversed. While it is true, as the plaintiffs assert, that at the time BankTrust filed the motion for writs of garnishment on November 29, 2011, the First District Court of Appeal had previously dismissed an appeal of the summary judgment order and a foreclosure count remained pending rendering the appeal premature, the appellate court did not discuss the issue of execution in dismissing the appeal.6 Also, although the foreclosure count was related to the note and guarantees that were the basis for the money judgment, the Barnivs and Witkind were not named in the foreclosure count and had no pending claims against BankTrust at that time. Additionally, the face of Judge Green's February 2011 summary judgment order stated it was final and included a judgment for a sum certain "for which let execution issue," and BankTrust recorded the judgment in June 2011. BankTrust did not seek writs of garnishment until over two months after the dismissed appeal and after the trial court had denied two separate motions for rehearing of the summary judgment order, and there were no pending claims against...
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