Garel and Jacobs, P.A. v. Wick, 96-1234
| Decision Date | 20 November 1996 |
| Docket Number | No. 96-1234,96-1234 |
| Citation | 683 So.2d 184 |
| Parties | 21 Fla. L. Weekly D2474 GAREL AND JACOBS, P.A., Appellant, v. Daniel WICK, as guardian of Michael Garel, A Minor, Appellee. |
| Court | Florida District Court of Appeals |
Bill Ullman, Miami, for appellant.
Daniel Wick, in pro. per.
Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
The law firm of Garel & Jacobs, P.A. appeals an order entered by a circuit court judge, assigned to the probate division, which compelled the law firm of Deutch & Blumberg, P.A. to disburse funds held by that firm partially to Daniel Wick, as guardian ad litem of a minor, with the residue to be paid to Heidi Roth, Esquire. Neither Deutch & Blumberg nor Ms. Roth resisted the order, Deutch & Blumberg, primarily because it recognized that by acting pursuant to the order, it acted with impunity, and Ms. Roth, because all agreed that the portion paid to her was her property. 1
From our characterization of the order, it clearly appears that the order sought to be reviewed does not conclude the judicial labor nor terminate the proceeding in order to support a plenary appeal. Fla. R.App. P. 9.110. Nor does the order determine the rights of a party under Florida Rule of Probate and Guardianship 5.100 in a particular proceeding. Nonetheless, the order does determine the right to immediate monetary relief pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), under which we have jurisdiction to decide the appeal.
Prior to his personal difficulties, Arthur Garel, a practicing attorney, secured the settlement of a personal injury claim for the use and benefit of his son in the sum of $45,000. These funds were placed in a restricted account. Subsequently, Garel formed a partnership with his then-associate, Jeffrey Jacobs. The firm became known as Garel & Jacobs, P.A. Both attorneys were employed by the professional association. Thereafter, as a result of substance abuse and addiction problems, Garel absconded not only with the firm's trust monies but ultimately managed to secure the release of his son's guardianship funds.
Garel was initially suspended, and eventually permitted to resign from the Florida Bar. The minor's natural mother then brought an action in the general jurisdiction of the circuit court against Garel & Jacobs, P.A., as well as Garel and Jacobs, individually, to recover a money judgment encompassing the guardianship funds which she alleged the law firm had negligently permitted Garel to withdraw.
The circuit judge sitting in probate appointed Daniel Wick, guardian ad litem to represent the minor. In the probate division, Wick then filed the motion which precipitated the order under review. By the motion, the guardian ad litem sought to compel Deutch & Blumberg to disburse the money which Wick alleged was rightfully the minor's property because of Garel's defalcations. Garel & Jacobs, P.A., by then Jacobs, P.A., resisted entry of the order. The firm claimed that such a writ of garnishment should only be issued in the action in which the primary claim was pending. Also, the firm argued that the court had not ordered a bond as required by Chapter 77, and also, the firm argued that writs of garnishment are prohibited in tort actions. We find the law generally agreeable to the appellant's position.
A prejudgment writ of garnishment, which the order under review most closely resembles, is a civil remedy available to a party to secure the anticipated money judgment the party ultimately expects to recover. Section 77.031(2), Florida Statutes (1995) explicitly provides that a motion to procure such writ "shall [be] file[d] in the court where the action is pending...." This is because the writ, being ancillary to the main action, should only be sought where the primary obligation is sought to be enforced. Moreover, it is plain that here, the movant for the prejudgment writ of attachment, did not post a bond as was required by section 77.031(3), Florida Statutes (1995).
Chapter 77, Florida Statutes, governs the practice of garnishment. Florida Rule of Civil Procedure 1.010 recognizes that special statutory...
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