Salcedo v. Wells Fargo Bank, N.A.

• Decision Date: 21 June 2017
• Docket Number: No. 3D16–430,3D16–430
• Citation: 223 So.3d 1099
• Parties: Luz Mery SALCEDO, Appellants, v. WELLS FARGO BANK, N.A., Appellee.
• Court: Florida District Court of Appeals

223 So.3d 1099

Luz Mery SALCEDO, Appellants,

v.WELLS FARGO BANK, N.A., Appellee.

No. 3D16–430

District Court of Appeal of Florida, Third District.

Opinion filed June 21, 2017

Easley Appellate Practice PLLC and Dorothy F. Easley ; Austin Carr (Fort Lauderdale), for appellant.

Stearns Weaver Miller Weissler Alhadeff & Sitterson and Marissa D. Kelley (Fort Lauderdale), for appellee.

Before ROTHENBERG,¹ SALTER and LOGUE, JJ.

SALTER, J.

Luz Salcedo, plaintiff below, appeals the circuit court's final judgment dismissing her third amended complaint² against Wells Fargo Bank, N.A. ("Wells Fargo"), with prejudice. We affirm in part, reverse in part, and remand the case for further proceedings. The legal issues in the case are sufficiently novel to warrant description and analysis. These issues are:

1. Whether a judgment creditor has a statutory cause of action for negligence, or a cause of action for spoliation, against a garnishee which identifies and "places a hold" on a safe deposit box over which the judgment debtor has control, if the garnishee nevertheless allows unauthorized access to the safe deposit box and removal of its contents in breach of the garnishee's statutory duty.

2. Whether a subsequent discharge of the underlying judgment in the bankruptcy of the judgment debtor precludes further prosecution of the judgment creditor's claim or claims against the errant garnishee.

3. If such a claim survives the discharge in bankruptcy of the judgment debtor, whether (a) the claim must be prosecuted as part of the garnishment in the original lawsuit, or (b) the claim may be prosecuted as a new and independent lawsuit against the garnishee. Restated, is a final judgment in garnishment—which did not adjudicate Ms. Salcedo's later claim of negligence relating to the contents of the safe deposit box—res judicata as to that negligence claim?

I. Allegations and Procedural Background

The complaint in the present action ("2014 Case") followed Ms. Salcedo's lengthy efforts in a prior case ("2006 Case") to recover $1,025,000.00 she had invested with Felix Rodriguez in 2003. In 2006, Ms. Salcedo filed a circuit court lawsuit alleging fraud, breach of fiduciary duty, and other claims. In March 2012, Ms. Salcedo obtained a final judgment against Mr. Rodriguez's widow, Maria Renzi de Rodriguez,³ both individually and in her capacity as personal representative of the estate of Felix Rodriguez, for $895,500.00.

A. Garnishment and the Safe Deposit Box

As part of her effort to collect the judgment against Ms. Renzi, Ms. Salcedo served a writ of garnishment in the 2006 Case on the appellee, Wells Fargo, in July 2012. In August 2012, Wells Fargo filed an amended answer as garnishee disclosing two bank accounts (with collective balances of $2,078.41) in Ms. Renzi's name, as well as a safe deposit box in the name of "Maria C. Renzi, Jorge A. Villasmil, Jr., Marion Cecilia Villasmil."⁴ Wells Fargo's amended answer reported that Wells Fargo "has placed a ‘hold’ on the Safe Deposit Box in accordance with Chapter 77, and primarily Section 77.06(2) and (3), Florida Statutes."

Later that month, the trial court entered (a) a "Final Garnishment Judgment" requiring payment of Ms. Renzi's funds from the two accounts to Ms. Salcedo, and (b) on the same day, an order directing Wells Fargo to open the safe deposit box to permit Ms. Salcedo to inventory the contents, and to "make available for inspection and copying any and all records, including original signatures, if available, showing who, if anyone, has had access to the safe deposit box since the commencement of this action on February 22, 2006." The order for the inventory of the safe deposit box required the property in the box to be "held in the safe deposit pending further order of this court."

However, when counsel for Ms. Salcedo arrived at the Wells Fargo branch ready to inventory the contents of the safe deposit box and to review the records regarding it, she was informed for the first time that the contents of the box had been removed and Ms. Renzi's account closed—well after Wells Fargo was served with the writ of garnishment.

B. Ms. Renzi's Bankruptcy

Five days after the order regarding the safe deposit box and discovery that Ms. Salcedo's son-in-law and daughter were given access to the box (despite Wells Fargo's representation that a "hold" would be in effect), Ms. Renzi filed a liquidating bankruptcy under Chapter 7 of the United States Bankruptcy Code. Initially, Ms. Salcedo appeared in the bankruptcy case and filed an adversary complaint objecting to Ms. Renzi's discharge as to Ms. Salcedo's unsatisfied 2012 judgment against Ms. Renzi. Ultimately, however, Ms. Salcedo abandoned that complaint in the bankruptcy case and Ms. Renzi obtained a discharge of indebtedness under 11 U.S.C. § 727.

Wells Fargo maintains that Ms. Renzi's discharge included the judgment against her held by Ms. Salcedo, such that there is no longer a judgment that can be collected in her 2014 Case against Wells Fargo. Ms. Salcedo argues that the claim against Wells Fargo accrued before Ms. Renzi's discharge was obtained, and that it is an independent claim to recover the value of funds or property taken from the safe deposit box that was on "hold," in the garnishment, and that would have been turned over to Ms. Salcedo "but for" Wells Fargo's mistake.⁵

Ms. Renzi's son-in-law and daughter, the Villasmils, opened a safe deposit box in their names only days after Ms. Renzi's bankruptcy filing. Ms. Salcedo obtained an order for an inventory of that safe deposit box as well, and the inventory was prepared on December 12, 2012, but the complaint does not address whether Ms. Salcedo obtained the contents of that second safe deposit box.

C. The 2014 Case Against Wells Fargo

Ms. Renzi obtained her bankruptcy discharge in late 2013. Ms. Salcedo then filed the 2014 Case against Wells Fargo and its branch manager for negligence and spoliation. The complaint asserted two counts: "general negligence" based on Wells Fargo's (and its branch manager's)⁶ failure to supervise access to the safe deposit box despite the "hold" it represented would be in effect in its garnishment response, and "spoliation of evidence," alleging that the loss of the contents of the safe deposit box constitutes spoliation of evidence under Public Health Trust of Dade County v. Valcin , 507 So.2d 596 (Fla. 1987). The negligence claim alleged a breach of duty by Wells Fargo under the garnishment law.

Ultimately the complaint was dismissed with prejudice for failure to state a legally sufficient cause of action. This appeal followed.

II. Analysis

In reviewing an order dismissing a complaint with prejudice, "[w]e assume that all allegations in the complaint are true, and we construe all reasonable inferences from those allegations in favor of [the plaintiff]." Greene v. Times Publ'g Co. , 130 So.3d 724, 728 (Fla. 3d DCA 2014) (citing United Auto. Ins. Co. v. Law Offices of Michael Libman , 46 So.3d 1101, 1103–04 (Fla. 3d DCA 2010) ). Our review for legal sufficiency in such a case "is limited solely to the complaint at issue and its attachments." Santiago v. Mauna Loa Invs., LLC , 189 So.3d 752, 756 (Fla. 2016).

We next address in order the three issues identified at the outset of this opinion.

A. First Issue: Cause of Action

Section 77.06(1) and (2), Florida Statutes (2012), imposed a statutory duty upon Wells Fargo to secure the safe deposit box of Ms. Renzi, and thus any property within it, upon service of the writ of garnishment on July 13, 2012:

(1) Service of the writ shall make garnishee liable for all debts due by him or her to defendant and for any tangible or intangible personal property of defendant in the garnishee's possession or control at the time of the service of the writ or at any time between the service and the time of the garnishee's answer. Service of the writ creates a lien in or upon any such debts or property at the time of service or at the time such debts or property come into the garnishee's possession or control.

(2) The garnishee shall report in its answer and retain, subject to the provisions of s. 77.19 and subject to disposition as provided in this chapter, any deposit, account, or tangible or intangible personal property in the possession or control of such garnishee; and the answer shall state the name or names and addresses, if known to the garnishee, of the defendant and any other persons having or appearing to have an ownership interest in the involved property.

The service of the writ on Wells Fargo thus (a) rendered the bank liable as garnishee for the tangible property in the safe deposit box under the bank's control, and (b) created a statutory lien on that property. In re Giles , 271 B.R. 903, 906 (Bankr. M.D. Fla. 2002). The bank should have denied, but did not, further access to the safe deposit box pending service of its answer to the writ and a court directive regarding further disposition of the contents of the safe deposit box.

Wells Fargo's amended answer to the writ on August 8, 2012, stated that the bank held certain funds of Ms. Renzi and that it "has placed a ‘hold’ on the Safe Deposit Box" in her name. In fact, however, Wells Fargo's records indicated that it had allowed the safe deposit box to be closed on August 4, 2012, and the contents to be removed.

The liability of a garnishee bank for funds of its customer (the judgment debtor) negligently allowed to be withdrawn following service of the writ is clear. Dixie Nat'l Bank v. Chase , 485 So.2d 1353 (Fla. 3d DCA 1986) ; Sun Bank/N.Fla Nat'l Ass'n v. Bisbee–Baldwin Ins. Co. , 559 So.2d 351 (Fla. 1st DCA 1990). That liability also has been found to extend to attorneys holding funds of the judgment debtor. Arnold, Matheny & Eagan, P.A. v. First Am. Holdings, Inc. , 982 So.2d 628, 641 (Fla. 2008). There is no reason to apply a different interpretation of section 77.06 when tangible property in a safe deposit box, rather than the balance of a deposit account, is negligently...