Estate of Bain v. Bibolini

• Citation: 711 So.2d 92
• Decision Date: 15 April 1998
• Docket Number: 97-2686,Nos. 97-2785,s. 97-2785
• Parties: 23 Fla. L. Weekly D993 ESTATE OF Jerome BAIN, etc., Appellant, v. Reinaldo BIBOLINI, Appellee.
• Court: Court of Appeal of Florida (US)

Page 92

711 So.2d 92

23 Fla. L. Weekly D993

ESTATE OF Jerome BAIN, etc., Appellant, v. Reinaldo BIBOLINI, Appellee.

Nos. 97-2785, 97-2686.

District Court of Appeal of Florida,

Third District.

April 15, 1998.

Rehearing Denied June 3, 1998.

Robert T. Mann, Tarpon Springs, for appellant.

Freud & Abraham and John S. Freud, Miami, for appellee.

Before JORGENSON, GODERICH and SHEVIN, JJ.

PER CURIAM.

The Estate of Jerome Bain appeals from an order of final summary judgment of garnishment. For the following reasons, we reverse. ¹

This appeal is the latest installment in a long history of litigation that began in 1989 between Jerome Bain, a realtor now deceased, and a property owner, Miller Lakes, over a real estate broker's commission. ² This particular piece of litigation introduces a new participant to the proceedings, Reinaldo Bibolini, a judgment creditor who obtained a judgment for breach of contract against Miller Lakes. That judgment is unrelated to the judgment for a real estate sales commission that Bain's estate obtained.

The issue in this appeal concerns the ownership of an escrow fund held at NationsBank, consisting of $136,000.00 deposited by Miller Lakes during the real estate commission litigation between Bain and Miller Lakes. The funds remained untouched at NationsBank until Bibolini discovered the account and sought a writ of garnishment against it to partially satisfy his judgment against Miller Lakes.

Bain's estate intervened in the garnishment proceedings, and claimed that the escrowed funds belonged to the estate, as the fund consisted of the unpaid real estate commission that Miller Lakes owed Bain. Bibolini argued that the funds belonged to the depositor, Miller Lakes, and that the money was available to satisfy his judgment against Miller Lakes.

Both parties filed motions for summary judgment; both filed affidavits that asserted conflicting claims of ownership of the escrowed funds. At the hearing on the cross motions for summary judgment, the trial court, over the estate's objection, heard testimony from witnesses. The history of the litigation is long and convoluted, and the trial court was understandably anxious to gain a full understanding of the proceedings. Nevertheless, under Florida Rule of Civil Procedure 1.510, "oral testimony is inappropriate at a hearing on a motion for summary judgment", as "[t]he determination of disputed material facts cannot be properly accomplished during a hearing for summary judgment."...