Robert C. Malt & Co. v. Colvin

• Court: Florida District Court of Appeals
• Citation: Robert C. Malt & Co. v. Colvin, 419 So.2d 745 (Fla. App. 1982)
• Decision Date: 22 September 1982
• Docket Number: No. 80-831,80-831
• Parties: ROBERT C. MALT & CO., Appellant, v. Edward C. COLVIN, Government Employees Insurance Company and Valentine Gabaldon, Appellees.

Page 745

419 So.2d 745

ROBERT C. MALT & CO., Appellant, v. Edward C. COLVIN, Government Employees Insurance Company and Valentine Gabaldon, Appellees.

No. 80-831.

District Court of Appeal of Florida Fourth District.

Sept. 22, 1982.

Garry M. Glickman of Glickman & Witters, West Palm Beach, for appellant.

Valentine Gabaldon, West Palm Beach, for appellee Gabaldon.

OWEN, WILLIAM C., Jr., (Retired) Associate Judge.

Due to a clerical error, the writ of garnishment in this case directed the garnishee to disclose indebtedness to or possession of property of the party who was the judgment creditor (rather than the party who was the judgment debtor). The writ was dissolved on the garnishee's speaking motion disclaiming indebtedness to or possession of property of the judgment creditor. The latter appeals. We reverse.

Edward C. Colvin brought an action for breach of contract against appellant Robert C. Malt & Co. ("Malt"). The latter prevailed on its counterclaim, recovering a judgment against Colvin in the amount of $4,218.00. Appellee Valentine Gabaldon, Colvin's attorney in the contract case, also represented Colvin in a personal injury case. Subsequent to the entry of the Malt judgment, the personal injury case was settled out of court favorably to Colvin.

While the proceeds of the personal injury settlement were in his possession or control, Gabaldon was served with a writ of garnishment issued pursuant to motion filed by Malt. Unfortunately, the writ of garnishment named Robert C. Malt & Co. as the defendant and debtor instead of naming Colvin. ¹ Gabaldon, understandably concerned with the duty which he owed to his client, elected to respond to the literal command of the writ; thus, he filed an answer to the writ denying any indebtedness to Malt, denying possession of any funds belonging to Malt and denying any knowledge of a debt to Malt. An amended answer was filed a day later admitting knowledge of Colvin's indebtedness to Malt. Gabaldon then disbursed $8,309.00 to Colvin and filed a motion to dismiss the writ of garnishment on the grounds that he did not represent Robert C. Malt & Co. and did not have nor anticipate having any property to disburse to Robert C. Malt & Co. Malt filed a reply to the amended answer of the garnishee, alleging that a day or two after service of the writ, in a telephone conversation with Malt's attorney, Gabaldon had admitted that (1) he had the personal injury settlement check in his possession, (2) he knew the garnishment applied to Malt's judgment against Colvin, and (3) Colvin's share would satisfy the debt. The reply demanded a trial by jury on the issues. The court treated the garnishee's motion to dismiss as a motion to dissolve and granted the same on the basis of the record. In doing so, the court necessarily accepted the allegations of the reply as true.

We are aware that generally the provisions of the garnishment statute, being in derogation of the common law, should be adhered to with strictness. ² We are also sensitive to the unique circumstance of the attorney-client relationship which existed between the garnishee and the judgment debtor whose assets were...