Zivitz v. Zivitz, 2D08-2705.
| Decision Date | 22 May 2009 |
| Docket Number | No. 2D08-2705.,2D08-2705. |
| Parties | Robert ZIVITZ, Appellant, v. Janice ZIVITZ and Gary Zivitz and Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., Appellees. |
| Court | Florida District Court of Appeals |
James E. Aker of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellant.
Darren R. Inverso, Curtis W. Mollohan, and Ryan W. Owen of Norton, Hammersley, Lopez & Skokos, P.A., for Appellees Janice Zivitz and Gary Zivitz.
No appearance for Appellee Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A.
Robert Zivitz, the garnishment defendant below, appeals the trial court's final judgment of garnishment directing the garnishee to disburse $190,388.53 to Janice and Gary Zivitz, the garnishment plaintiffs below. The monies held by the garnishee were proceeds from the sale of a Longboat Key condominium owned by Robert and his second wife, Nancy. Robert claimed the monies were exempt from garnishment pursuant to the homestead exemption, but the trial court held that Robert failed to timely assert that exemption and that he failed to establish excusable neglect. For the reasons set forth below, we affirm.
In 2006, Janice and Gary1 obtained a judgment against Robert in a promissory note action unrelated to this appeal. On January 15, 2008, Janice and Gary filed a motion for issuance of a writ of garnishment on the law firm of Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec and Westheimer, P.A. (Syprett Meshad). The motion alleged that garnishee Syprett Meshad was holding assets belonging to Robert. A writ of garnishment was served on Syprett Meshad that same day. On January 17, 2008, pursuant to section 77.041, Florida Statutes (2007), Janice and Gary served Robert with a statutory "NOTICE TO DEFENDANT OF RIGHT AGAINST GARNISHMENT OF WAGES, MONEY, AND OTHER PROPERTY." The Notice was sent to Robert's last known address in Alabama. The Notice, which tracked the language set forth in section 77.041, stated:
The Writ of Garnishment delivered to you with this Notice means that wages, money, and other property belonging to you have been garnished to pay a court judgment against you. HOWEVER, YOU MAY BE ABLE TO KEEP OR RECOVER YOUR WAGES, MONEY, OR PROPERTY. READ THIS NOTICE CAREFULLY.
State and federal laws provide that certain wages, money, and property, even if deposited in a bank, savings and loan, or credit union, may not be taken to pay certain types of court judgments. Such wages, money, and property are exempt from garnishment. The major exemptions are listed below on the form for Claim of Exemption and Request for Hearing. This list does not include all possible exemptions. You should consult a lawyer for specific advice.
TO KEEP YOUR WAGES, MONEY, AND OTHER PROPERTY FROM BEING GARNISHED, OR TO GET BACK ANYTHING ALREADY TAKEN, YOU MUST COMPLETE A FORM FOR CLAIM OF EXEMPTION AND REQUEST FOR HEARING AS SET FORTH BELOW AND HAVE THE FORM NOTARIZED. YOU MUST FILE THE FORM WITH THE CLERK'S OFFICE WITHIN 20 DAYS AFTER THE DATE YOU RECEIVE THIS NOTICE OR YOU MAY LOSE IMPORTANT RIGHTS. YOU MUST ALSO MAIL OR DELIVER A COPY OF THIS FORM TO THE PLAINTIFFS AND THE GARNISHEE AT
THE ADDRESSES LISTED ON THE WRIT OF GARNISHMENT.
(Emphasis added.) The Notice also warned:
YOU SHOULD FILE THE FORM FOR CLAIM OF EXEMPTION IMMEDIATELY TO KEEP YOUR WAGES, MONEY, OR PROPERTY FROM BEING APPLIED TO THE COURT JUDGMENT. THE CLERK CANNOT GIVE YOU LEGAL ADVICE. IF YOU NEED LEGAL ASSISTANCE YOU SHOULD SEE A LAWYER. IF YOU CANNOT AFFORD A PRIVATE LAWYER, LEGAL SERVICES MAY BE AVAILABLE. CONTACT YOUR LOCAL BAR ASSOCIATION OR ASK THE CLERK'S OFFICE ABOUT ANY LEGAL SERVICES PROGRAM IN YOUR AREA.
(Emphasis added.) The Notice included an exemption claim form that read:
CLAIM OF EXEMPTION AND REQUEST FOR HEARING
I claim exemptions from garnishment under the following categories as checked:
____ 1. Head of family wages. (You must check a. or b. below.)
____ a. I provide more than one-half of the support for a child or other dependent and have net earnings of $500 or less per week.
____ b. I provide more than one-half of the support for a child or other dependent, have net earnings of more than $500 per week, but have not agreed in writing to have my wages garnished.
____ 2. Social Security benefits.
____ 3. Supplemental Security Income benefits.
____ 4. Public assistance (welfare).
____ 5. Workers' Compensation.
____ 6. Unemployment Compensation.
____ 7. Veterans' benefits.
____ 8. Retirement or profit-sharing benefits or pension money.
____ 9. Life insurance benefits or cash surrender value of a life insurance police or proceeds of annuity contract.
____ 10. Disability income benefits.
____ 11. Prepaid College Trust Fund or Medical Savings Account.
____ 12. Other exemptions as provided by law.
________________________ (explain)
(Emphasis added.) Robert did not file a claim of exemption within the time frame set forth by the Notice.
On February 5, 2008, Syprett Meshad filed an answer to the writ of garnishment asserting that it was holding $641,929.18 belonging to Robert and Nancy2 but that the monies were proceeds from the sale of their homestead marital domicile.3 The answer also indicated that attorney James E. Aker and his law firm had an interest in a portion of the monies as payment for attorney's fees and costs for his representation of Robert and Nancy in an action unrelated to this appeal.
On February 15, 2008, Janice and Gary served on Robert, by mail, a Garnishment Notice together with a copy of the writ of garnishment and a copy of Syprett Meshad's answer to the writ. The Garnishment Notice stated that Robert had twenty days to move to dissolve the writ of garnishment. The Garnishment Notice also warned that a default would be entered under the writ of garnishment if Robert failed to timely move to dissolve the writ. Robert did not timely move to dissolve the writ.
On March 7, 2008, Janice and Gary filed and served a Motion for Entry of Final Garnishment Judgment, seeking to obtain by garnishment the monies held by Syprett Meshad. Because he had an interest in the monies, attorney Aker received a copy of Janice and Gary's motion. Attorney Aker, although he did not then represent Robert in the garnishment action, also noticed that Robert had not filed any response in the garnishment proceedings and contacted Robert to suggest that he should have counsel regarding the homestead issue.
On March 12, 2008, now represented by attorney Aker, Robert belatedly filed a response to Janice and Gary's Motion for Entry of Final Garnishment Judgment, which also sought to dissolve the writ of garnishment, and that claimed the monies were shielded by virtue of the homestead exemption and that he intended to use his share of the monies to acquire a new homestead. In connection with his motion, Robert filed an affidavit from himself stating that the monies at issue were protected by the homestead exemption and explaining that he did not file a timely exemption claim because his prior conversation with the tax collector's office led him to believe that the monies were protected from any type of execution on a judgment. He also blamed depression for his failure to timely claim an exemption. Robert also filed an affidavit from his Internal Medicine doctor4 attesting that Robert was suffering from depression. The doctor's affidavit speculated that a person suffering from depression such as Robert's could "pay insufficient attention to legal documents that were served upon him and that required a response . . . by a deadline date" and could make unsound, imprudent, and untimely legal decisions when confronted with legal documents containing deadlines.
On March 24, 2008, Robert also belatedly filed a claim of exemption using the form contained in section 77.041, alleging that the monies at issue were protected by the homestead exemption. Based on the time frame set forth in section 77.041, both the motion to dissolve the writ of garnishment and the exemption claim form were late. Because of these deficiencies, Janice and Gary moved to strike Robert's filings.
At a hearing on May 16, 2008, where no testimony was presented, Robert argued that his failure to comply with the time requirements set forth in section 77.041 did not require or mandate the trial court to enter a garnishment judgment against him. Under Robert's combined interpretation of sections 77.041 and 77.07(2) of the garnishment statute, failing to comply with the statute's time requirements simply placed the matter in a default posture, where he could still move to set aside the default and could get a hearing on the issue of whether the proceeds held by Syprett Meshad were protected by the homestead exemption. Therefore, he asked the trial court to deny Janice and Gary's motion to strike his belated filings and to simply set the matter for a hearing on the issue of whether the monies were protected by the exemption.5 After hearing the parties' respective arguments, the court noted that section 77.041 repeatedly used the word "must" when identifying the actions a garnishment defendant must proactively take to protect wages, money, or property from garnishment. Therefore, the court concluded that the time constraints set forth in section 77.041 were mandatory and must be strictly enforced. Consequently, because Robert had failed to file a timely exemption claim, he had lost the ability to claim any purported homestead protection over the monies. The court struck Robert's belated filings and ordered Syprett Meshad to disburse to Janice and Gary $190,388.53 of the monies it was holding for Robert.
Robert moved for rehearing or, in the alternative, for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b). In support of his motion, Robert again relied on his previously filed affidavit as well as his doctor's affidavit. He first argued that the court's...
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