Gieger v. Sun First Nat. Bank of Orlando
| Decision Date | 09 March 1983 |
| Docket Number | No. 82-486,82-486 |
| Citation | 427 So.2d 815 |
| Parties | W.L. GIEGER, Appellant, v. SUN FIRST NATIONAL BANK OF ORLANDO, etc., Henrietta Gieger; etc.; and J. Nolan Carter, Appellees. |
| Court | Florida District Court of Appeals |
Ronald L. Sims of Hoffman, Hendry, Stoner, Sims & Sawicki, Orlando, for appellant.
Patrick T. Christiansen of Akerman, Senterfitt & Eidson, Orlando, for appellee Sun First National Bank.
No appearance for appellees Gieger and Carter.
On May 15, 1978, appellee Sun First National Bank of Orlando obtained a final judgment against Henrietta W. Gieger and W.L. Gieger, then husband and wife, in the amount of $24,193.17. To collect this debt, Sun Bank initiated garnishment proceedings against J. Nolan Carter and his wife as debtors of the Giegers. The Carter debt to the Giegers was in the form of a promissory note and second mortgage for $47,000 given to the Giegers as part of the purchase price for the Giegers' homestead property sold to Carter. Ultimately the trial court issued an order dissolving that writ of garnishment and on appeal this court affirmed, stating that the note and mortgage taken back by the Giegers was a "substitute homestead" for a reasonable time until the mortgage could be reinvested into a new homestead. Sun First National Bank of Orlando v. Gieger, 402 So.2d 428 (Fla. 5th DCA 1981).
Following the issuance of this court's mandate, appellant Sun Bank again obtained a writ of garnishment against J. Nolan Carter (but not his wife) as garnishee, which is now the subject of this appeal. The amount requested in Sun Bank's motion was $27,651.07.
The garnishee, J. Nolan Carter answered the writ stating:
That at the time of receiving this Writ of Garnishment and until Answering this Writ of Garnishment, the Garnishee herein, J. Nolan Carter, is obligated to W.L. Gieger and Henrietta Gieger, his wife, pursuant to that certain Note and Mortgage dated February 21, 1980 ....
A copy of the note and mortgage was attached to the answer, indicating that the note was payable in monthly installments of $570.58 each. It was not claimed by any party that the monthly payments were in arrears. Based on this answer, Sun Bank filed a motion for judgment on the pleadings.
Thereafter, Gieger moved to dissolve the writ of garnishment, alleging as grounds therefor: (1) that the note and mortgage sought to be garnished constituted homestead property and thus was exempt from garnishment; (2) that the motion for judgment on the pleadings was overbroad because it sought a continuing garnishment and future payments on a negotiable instrument were not subject to garnishment; and (3) that he had assigned his interest in the note and mortgage to Ernest A. and Viola M. Zuidema (Zuidema) who were thus indispensable parties to the action. The documentation supporting the claimed "assignment" was attached to the motion. After hearing, the trial court denied Giegers' motion to dissolve the writ, granted Sun Bank's motion for judgment on the pleadings and directed Carter, the garnishee, to "make payments due and to become due under the subject note and mortgage ..." to Sun Bank. Gieger appeals and we reverse.
Sun Bank contends that Gieger has no standing to appeal the garnishment order because his former wife Henrietta W. Gieger, the co-payee of the note, did not join in the motion to dissolve, nor does she appeal the order. Sun Bank relies on section 673.116, Florida Statutes (1981), which provides in part:
An instrument payable to the order of two or more persons:
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* * *
(2) If not in the alternative is payable to all of them and may be negotiated, discharged or enforced only by all of them.
This section does not apply here because Gieger is not trying to negotiate, discharge or enforce the note in this action. He is merely attempting to protect his claimed interest in the note from what he contends is a wrongful garnishment, and if he continues to have an interest in the note and mortgage, he has standing to try to protect it.
The record reveals that there was no assignment of the Carter mortgage to Zuidema. Instead, the Giegers pledged that mortgage to Zuidema as additional security for a debt owed by the Giegers to Zuidema, resulting from the purchase of a condominium unit from Zuidema by Mrs. Gieger. 1 The Giegers were still the owners of the Carter mortgage, subject only to the collateral pledge of the proceeds until Zuidema was paid off.
Generally, one has standing when he has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636; ...
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