TIRE KINGDOM, INC., APPELLANT,
v.
TAMARA SUE BOWMAN, ETC., ET AL., APPELLEES
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The court held that the non-alienation provisions of ERISA do not preclude garnishment of pension funds to satisfy liabilities arising from an employee's criminal misconduct against their employer.
[1] A trial court's refusal to set aside a default judgment will be reversed on appeal only upon a showing of gross abuse of discretion.
[2] A party seeking to set aside a default must demonstrate both excusable neglect for failing to comply with procedural rules and the existence of a meritorious defense.
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UPCHURCH, Judge.
Tire Kingdom appeals from a final judgment of garnishment after a default was entered against it. We find no gross abuse of discretion in the trial court’s refusal to set aside the default. However, we find that the garnishor, Tamara Bowman, was not entitled to a judgment for the full amount of her claim and accordingly re verse and remand for a hearing on damages.
The record reflects that Tamara Bowman recovered a judgment in the amount of $33,947.38 against Thomas Hines. When Hines did not satisfy the judgment, Bowman caused a writ of garnishment to be served on Tire Kingdom, Hines’ employer. Tire Kingdom failed to respond to the writ of garnishment and a default was entered.
On January 11, 1985, Bowman moved for entry of a final judgment and mailed a copy of this motion to Tire Kingdom’s corporate offices in St. Petersburg.
On February 4, 1985, Tire Kingdom appeared in the garnishment proceedings and filed an answer and a motion to set aside the default. Tire Kingdom acknowledged that it had been served with the writ but explained that the document had been intermingled with other documents and had never been delivered to counsel for response. Tire Kingdom further stated that Hines was one of its employees earning a base salary of $350 per week plus bonuses. Since service of the writ, Tire Kingdom had paid Hines $4,556.93 and was indebted to him in the amount of $1,739.98.
The trial court denied the motion to set aside the default and later entered judgment in favor of Bowman for $33,947.38, the full amount of the claim against Hines.
A trial court may grant a motion to vacate a default if the moving party establishes both that he has a legal excuse for failing to comply with the rules of procedure and that a meritorious defense exists. Kindle Trucking Co. v. Marmar Corp., 468 So. 2d 502 (Fla. 5th DCA 1985); Fratus v. Fratus, 467 So. 2d 484 (Fla. 5th DCA 1985); L.B.T. Corp. v. Camacho, 429 So. 2d 88 (Fla. 5th DCA 1983); TPM Constructors, Inc. v. Twin Coast Tile, 425 So. 2d 580 (Fla. 5th DCA 1983).
The court is vested with broad discretionary power in determining whether the facts constitute excusable neglect justifying the vacating of a default and a showing of a gross abuse of discretion is necessary on appeal to justify a reversal of the trial court’s ruling on a motion to vacate. See North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla. 1962); Florida Aviation Academy v. Charter Air Ctr., 449 So. 2d 350 (Fla. 1st DCA 1984).
We find no gross abuse of discretion here in the denial of Tire Kingdom’s motion to set aside the default.
However, under the reasoning in this court’s recent decision in Carpenter v. Benson, 478 So. 2d 353 (Fla. 5th DCA 1985), the final judgment for the full amount claimed by Bowman must be set aside. In Carpenter v. Benson, Carpenter recovered a judgment for $32,500 against Benson and later served a writ of garnishment on Benson’s employer, All County Disposal Corporation. After All County failed to answer, a default was entered. All County later moved to set aside the default alleging in part that it had paid Benson $299.74 after service of the writ, that Benson had been discharged from employment and that it was not indebted to Benson.
The trial court vacated the default and entered judgment against All County for $299.74 plus attorney’s fees. Carpenter appealed, claiming entitlement to a judgment against the garnishee for the full amount of his judgment of $32,500.
On appeal, this court rejected Carpenter’s argument, explaining as follows:
Neither the writ1 nor the statute authorizing it provides any notice to a garnishee that his own property is in jeopardy if he fails to respond to the writ. The writ calls on him only to disclose what money or personal property of the original defendant he holds and to provide information about said defendant’s assets which may be in the possession or control of other persons. Therefore, a judgment against a garnishee after service of this writ for an amount in excess of any debt which he owes to the judgment debtor would violate due process because of insufficient notice.
478 So. 2d at 355.
Here, in a sworn affidavit, Tire Kingdom asserted that it had paid its employee Hines $4,556.93 since the service of the writ and presently owed him $1,731.93. Tire Kingdom had no notice that its own property was in jeopardy if it failed to respond to the writ. Thus, the judgment for the full amount of the claim by Bowman, since it is in excess of any debt owed to Hines, must be set aside. We therefore remand to the trial court for reconsideration of damages.
REVERSED and REMANDED.
COBB, C.J., and SHARP, J., concur. . The writ in Carpenter was in the form provided by section 77.04, Florida Statutes (1983) and is virtually identical to the writ served on Tire Kingdom.
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DeRUYTER v. State, 521 So. 2d 135 (Fla. 5th DCA 1988)…to Chapter 895, Florida Statutes.1 As concerns the default, Florida law is well settled that to justify setting aside a default the defendant must establish both excusable neglect and that a meritorious defense exists. Tire Kingdom, Inc. v. Bowman, 480 So. 2d 221 (Fla. 5th DCA 1985); Marine Outlet v. Miner, 469 So. 2d 251 (Fla. 2d DCA 1985); Wentnick v. European American Bank, 487 So. 2d 382 (Fla. 4th DCA 1986); Quality Electric Service v. Seymour Electric Supply, 487 So. 2d 80 (Fla. 1st DCA 1986). While the…
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West v. Rejina Reba West, 534 So. 2d 893 (Fla. 5th DCA 1988)…trial court’s discretion to grant relief from a default judgment upon a showing of a meritorious defense and a legal excuse for failure to comply with the rules. Gahagen v. Mahoney, 511 So. 2d 1125 (Fla. 4th DCA 1987); Tire Kingdom, Inc. v. Bowman, 480 So. 2d 221 (Fla. 5th DCA 1985); Canney v. Canney, 453 So. 2d 179 (Fla. 2d DCA 1984). On appeal, the question is not whether the reviewing court would have found excusable neglect had it been in the position of the trial court but rather whether the denial of t…
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KFC USA, Inc. v. Depew, 879 So. 2d 55 (Fla. 5th DCA 2004)…D. GRIFFIN and PALMER, JJ., concur. SAWAYA, C.J., dissents, without opinion. . North Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla.1962); Joe-Lin, Inc. v. LKG Rest. Group, Inc., 696 So. 2d 539 (Fla. 5th DCA 1997); Tire Kingdom, Inc. v. Bowman, 480 So. 2d 221 (Fla. 5th DCA 1985). . See Dawkins, Inc. v. Huff, 836 So. 2d 1062 (Fla. 5th DCA 2003) ("To be relieved of a default, a defendant must demonstrate excusable neglect, a meritorious defense, and due diligence in seeking relief.’’) (citation omitted);…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- N. Shore Hosp., Inc. v. Barber, 143 So. 2d 849 (Fla. 1962)
- Fla. Aviation Acad. v. Charter AIR Ctr., Inc., 449 So. 2d 350 (Fla. 1st DCA 1984)
- Kindle Trucking Co. v. Marmar Corp., 468 So. 2d 502 (Fla. 5th DCA 1985)
- TPM Constructors, Inc. v. Twin Coast Title, Inc., 425 So. 2d 580 (Fla. 5th DCA 1982)
- Herman v. Herman, 429 So. 2d 88 (Fla. 5th DCA 1983)
- L.B.T. Corp. v. Camacho, 429 So. 2d 88 (Fla. 5th DCA 1983)
- Fratus v. Fratus, 467 So. 2d 484 (Fla. 5th DCA 1985)
- Carpenter v. Benson, 478 So. 2d 353 (Fla. 5th DCA 1985)
- Williams v. State, 478 So. 2d 353 (Fla. 3d DCA 1985)