Oper v. Air Control Products, Inc. of Miami, 64-815
| Decision Date | 27 April 1965 |
| Docket Number | No. 64-815,64-815 |
| Citation | 174 So.2d 561 |
| Parties | Arnold OPER, Appellant, v. AIR CONTROL PRODUCTS, INC. OF MIAMI, a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Carl A. Spatz, Miami, for appellant.
Joel A. Savitt and Stephen Lubow, Miami, for appellee.
Before BARKDULL, C. J., and TILLMAN PEARSON and CARROLL, JJ.
By this appeal, the appellant [a third party claimant in a garnishment proceeding] seeks review of an adverse final judgment in garnishment, which failed to recognize his third party claim. The following if found in the record on appeal:
Some time prior to May 26, 1964, the appellee, Collie, was involved in an automobile accident with one Wasekanes. As a result of said accident, Collie sought the services of the appellant [a medical doctor] and in connection therewith executed what the appellant contends to be an assignment of a portion of any recovery in the personal injury action against Wasekanes or any benefits under insurance policies to which he might be entitled, in order to satisfy any such amounts as might be due the appellant and which was in the form of a letter of authorization to Collie's attorneys.
On May 26, 1964, the appellee, Air Control Products, Inc. of Miami, [in a common law action separate and distinct from any cause of action arising out of the aforesaid personal injury matter] secured a final judgment against the appellee, Collie, in the sum of $1.049.35. On June 19, 1964, Collie prevailed in his personal injury action and secured a judgment of $2,210.20. The defendant in the personal injury action, Wasekanes, was insured by Allstate Insurance Company and, subsequent to the entry of the final judgment in the common law personal injury action, the appellee, Air Control Products, Inc. of Miami, [as plaintiff and judgment creditor in the suit against Collie] instituted garnishment proceedings against Allstate pursuant to the provisions of Ch. 77, Fla.Stat., F.S.A. Within the time prescribed by the writ, Allstate answered and admitted there was an indebtedness payable to Collie and his attorney in the personal injury action. Pursuant to the authority found in § 77.16, Fla.Stat., F.S.A., the appellant along with others filed a third party claim in the garnishment proceedings. Several motions to dissolve were filed, and the appellee, Air Control, filed a motion for judgment against the garnishee. Upon hearing, the trial court established a priority as to certain claimants [not involved herein], found that the appellant did not have a valid assignment, and entered a final judgment in garnishment for the appellee, Air Control Products, Inc. of Miami. It is from this judgment that this appeal has been prosecuted. The appellant has preserved three points for review by this court:
'POINT I
'Was the assignment to Arnold Oper from Ezekiel Collie valid so as to create a priority lien in favor of appellant?
'POINT II
'Did appellee have the right to garnish the insurance company?
'POINT III
'Did the lower court err in entering its final judgment in garnishment without jury trial and without taking testimony?'
As to Point I, if the actions of the trial judge can be supported on any theory he will be sustained, even though the reasoning for his ruling may be erroneous. See: Cohen v. Mohawk, Fla.1962, 137 So.2d 222; Berkman v. Miami National Bank, Fla.App.1962, 143 So.2d 535; Tri-County Produce Distributors, Inc. v. Northeast Production Credit Association, Fla.App.1963, 160 So.2d 46. It is admitted, from this record, that no notice was given to the defendant in garnishment and that the first notice it had of the respective claims of the parties was when it was served with the writ as to Air Control and when it was served with a copy of third party claim as to the appellant. In appears that the appellant, if he had an assignment, received his in fact and that the appellee, Air Control, received its right by operation of law to the identical fund, to wit: indebtedness due by Allstate through Wasekanes to Collie. In determining the priority between these two claims, first in line as to the...
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