Marshall-Shaw v. Ford, No. 4D99-1501.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: DELL, J.
• Citation: 755 So.2d 162
• Parties: Anita MARSHALL-SHAW, Appellant, v. Kathleen Duross FORD, Appellee.
• Decision Date: 15 March 2000
• Docket Number: No. 4D99-1501.

755 So.2d 162

Anita MARSHALL-SHAW, Appellant,
v.
Kathleen Duross FORD, Appellee

No. 4D99-1501.

District Court of Appeal of Florida, Fourth District.

March 15, 2000.

Rehearing Denied April 24, 2000.

755 So.2d 163

Stephen Rakusin of Stephen Rakusin, P.A., Fort Lauderdale, for appellant

Jacqueline S. Miller and Joshua A. Payne of Chopin & Miller, Palm Beach, and F. Gregory Barnhart of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for appellee.

DELL, J.

Anita Marshall-Shaw appeals a non-final order denying her motions to dissolve writs of garnishment and attachment in a pending action that involved the alleged theft of numerous pieces of personal jewelry. We affirm.

In January of 1997, a burglary occurred at the residence of appellee Kathleen Duross Ford. Among other items, numerous pieces of valuable jewelry were taken.

755 So.2d 164

Appellee filed a lawsuit against appellant and others, alleging counts of conversion, civil theft, conspiracy, unjust enrichment, and trespass. Appellee alleged that appellant was jointly and severally liable for participating in acts involving the burglary of her home and disposing of the stolen property

Appellee moved for issuance of prejudgment writs of attachment on appellant's land, tenements, goods, and chattels. The trial court issued the prejudgment writs and set an attachment bond. Appellee then moved for issuance of a prejudgment writ of garnishment on cash payments made to appellant by co-defendants Jennifer and Roderick McKenzie for a purported mortgage relating to property appellant transferred to them. Subsequently, the trial court issued the writ of garnishment.

Appellant moved to dissolve the writs of attachment and the writ of garnishment. The trial court held an evidentiary hearing on both motions. Appellee's attorney, Frank Chopin, testified concerning the value of the stolen jewelry. He also testified that the jewelry was actually owned by a trust in which he and appellee were co-trustees, with appellee being the sole beneficiary owner of the trust property. In her complaint, appellee alleged that she was the owner of the jewelry and did not plead the existence of a trust.

The trial court found that appellee had complied with the applicable garnishment and attachment statutes, that her unjust enrichment claim properly formed the basis of the writs, and that the value of the stolen items had been adequately demonstrated. In the order now being appealed, the trial court denied the motions to dissolve the writs of attachment and garnishment.

When a party moves to dissolve a writ of attachment or garnishment, the party opposing the motion must prove the grounds on which the writ issued and a reasonable probability of obtaining a final judgment in his or her favor. §§ 76.24(1), 77.07(1), Fla. Stat. (1997). Appellant first argues that the trial court erred in denying her motions to dissolve the writs because there is no reasonable probability that appellee will obtain a judgment on counts I and III for conversion and unjust enrichment. Appellant points out that the only evidence presented at the evidentiary hearing on the motions to dissolve the writs was from Frank Chopin. She states that his testimony revealed that appellee did not own the jewelry allegedly converted. She refers to Chopin's testimony that appellee and he were the co-trustees of the trust which held the jewelry and that appellee was the sole beneficiary of the trust. Based on this testimony, appellant argues that appellee and Chopin were required to bring suit in their capacity as co-trustees. Appellant did not raise this argument in her motions to dissolve the...