CAPROC THIRD AVENUE, LLC, APPELLANT,
v.
DONISI INSURANCE, INC. AND CHARLES DONISI, APPELLEES
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Caproc appealed the dissolution of a writ of garnishment against judgment debtor Charles Donisi's bank accounts. The trial court struck Caproc's attorney's affidavit denying Donisi's claimed exemptions because the statute requires the judgment creditor party itself—not its attorney—to make the sworn denial. The court affirmed, holding that section 222.12 unambiguously requires personal denial by the party who sued out the process.
The court held that section 222.12, Florida Statutes, unambiguously requires the party who sued out the process—not the party's attorney—to deny under oath the facts set forth in the judgment debtor's affidavit for exemption. An attorney cannot substitute for the party in making this statutory denial.
[1] A statute requiring an affidavit to be made by a particular person himself cannot be satisfied by an agent or attorney.
[2] Under Florida Statute § 222.12, the party who sued out the process must personally deny under oath the facts set forth in a judgment debtor's affidavit of exemption.
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Join FLexlaw to unlock all legal intelligence“If the facts stated in the affidavit [of exemption] are denied by the party who sued out the process within the time above set forth and under oath, then the matter shall be tried by the court”
The statutory language establishing that the party itself, not an attorney, must make the sworn denial of exemption facts.
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Join FLexlaw to unlock all legal intelligenceCaproc obtained a final judgment against Charles Donisi and others for damages under a lease agreement. A writ of garnishment was issued against Donis…
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Caproc Third Avenue, LLC (Caproc) obtained a final judgment holding Scott Gor-ton, Charles Donisi, and Donisi Insurance Company, Inc. jointly and severally liable for damages under a lease agreement and guarantee. After a writ of garnishment was issued against Charles Donisi’s personal bank accounts, Donisi filed an Emergency Motion to Dissolve the Writ and executed an affidavit asserting that his accounts were exempt from garnishment under the “wages exception” and the “head of household” exemption. In response, Caproc’s attorney filed an “attorney’s affidavit,” wherein he denied under oath the facts set forth in- Donisi’s affidavit for exemption. The trial court dissolved the writ after determining that the affidavit filed by Caproc’s attorney was legally insufficient to satisfy Caproc’s burden, under section 222.12, Florida Statutes, to deny under oath the facts set forth in the judgment debtor’s affidavit for exemption. We affirm.
To support his emergency motion to dissolve the writ of garnishment, Donisi, the judgment debtor, filed an affidavit in which he claimed the “head of family wages” exception and swore that he “provide[s] more than one-half of the support for a child or other dependent,” “has net earnings of more than $500 per week,” and “has not agreed in writing to have his wages garnished.” Following a brief telephonic hearing, the trial court entered an Order Denying Emergency Hearing and Dissolution of Writ, Without Prejudice for Parties to Follow Statutory Procedure for Sworn Denial and Trial.
Caproc’s attorney, Justin D. Jacobson, Esq., responded by executing an affidavit entitled “Plaintiffs Denial Under Oath of Defendant’s Affidavit for Exemption from Garnishment Under Florida Statute § 222.12.” The attorney’s affidavit *314stated that he personally appeared before a notary and that, after being duly sworn, pursuant to section 222.12, Florida Statutes (2009), “Plaintiff hereby denies under oath that the Defendant is entitled to the exemption claimed in the Affidavit for Exemption.” The judgment debtor moved to strike the attorney’s affidavit oh the grounds that: (1) the attorney lacked any personal knowledge of the facts set forth in the affidavit; (2) the attorney lacked authority to execute the affidavit on behalf of the Plaintiff; and (3) the affidavit amounted to hearsay, thereby making it insufficient under section 222.12. Following a hearing on the motion to strike the affidavit, the trial court entered an order striking the attorney’s affidavit and dissolving the writ of garnishment. The court explained that there was “no denial ‘by the party who sued out the process within the time above set forth and under oath,’ as req[uire]d by F.S. § 222.12, but rather only a denial under oath of an attorney who is not the person req[uired] by the statute to make the denial under oath.” Following the dissolution of the writ and denial of Caproc’s motion for rehearing, Bank of America released all of the judgment debtor’s previously garnished funds. Caproc then filed this appeal.1
Caproc contends that the trial court erred in dissolving the writ of garnishment, arguing that it was proper under the statute for its attorney, rather than Caproc itself, to execute a sworn denial of the judgment debtor’s claim of head of household exemption. The judgment debtor counters that the trial court correctly followed the plain language of section 222.12 and applicable case law in finding that the attorney’s affidavit was legally insufficient to satisfy Caproc’s burden. He maintains that the statute requires that the “facts set forth” in a judgment debtor’s affidavit for exemption must be “denied by the party who sued out the process, within the time set forth and under oath.” Thus, he argues, the statute precludes the party’s attorney from making the denial.
Section 222.12, Florida Statutes (2009), establishes the procedure regarding a claim of exemption from garnishment. It provides the following:
Whenever any money or other thing due for labor or services as aforesaid is attached by such process, the person to whom the same is due and owing may make oath before the officer who issued the process or before a notary public that the money attached is due for the personal labor and services of such person, and she or he is the head of a family residing in such state. When such an affidavit is made, notice of same shall be forthwith given to the party, or her or his attorney, who sued out the process, and if the facts set forth in such affidavit are not denied under oath within 2 business days after the service of said notice, the process shall be returned, and all proceedings under the same shall cease. If the facts stated in the affidavit [of exemption] are denied by the party who sued out the process within the time above set forth and under oath, then the matter shall be tried by the court from which the writ or process issued, in like manner as claims to property levied upon by writ of execution are tried, and the money or thing attached shall remain subject to the pro*315cess until released by the judgment of the court which shall try the issue,
(emphasis added).
If “ ‘the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc., v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). We agree with the trial court that the above statute is clear and unambiguous. It requires the party, and not the attorney, to deny under oath the facts set forth by the debtor. The court thus properly ended the garnishment proceedings, as there was no denial under oath ‘by the party who sued out the process,” as required by F.S. § 222.12, but rather only a denial under oath of an attorney.
“[Ujnder a statute requiring an affidavit to be made by a particular person himself, his agent or attorney cannot make it.” S. Attractions, Inc. v. Grau, 93 So.2d 120, 125 (Fla.1956). Moreover, as our court has previously stated, when “affidavits contain no other information than that which ha[s] been furnished to the affiants by the petitioner, they would obviously be legally insufficient.” Gieseke v. Grossman, 418 So.2d 1055, 1057 (Fla. 4th DCA 1982) (citing Hahn v. Frederick, 66 So.2d 823 (Fla.1953)).
We find no merit in Caproc’s argument that the trial court’s interpretation of the statute violates due process and renders the statute unconstitutional as applied.
Affirmed.
STEVENSON and GERBER, JJ., concur.
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Katz v. Frank, Weinberg & Black, P.L., 268 So. 3d 773 (Fla. 4th DCA 2019)…. In addition, we elect to proceed "because the problem that the instant action presents is capable of repetition yet evading review." State v. Matthews , 891 So. 2d 479, 484 (Fla. 2004) ; see also [*775] Caproc Third Ave., LLC v. Donisi Ins. Inc., 67 So. 3d 312, 314 (Fla. 4th DCA 2011). The conduct here at issue-the failure to follow rules mandated by the Supreme Court for participation fees-typically occurs in the shadows and rarely emerges in the light of day. Original Panel Opinion We reverse the awar…
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Steven B. Katz, P.A. v. Anthony C. Vitale, P.A. (Fla. 4th DCA 2019)…84)1. In addition, we elect to proceed “because the problem that the instant action presents is capable of repetition yet evading review.” State v. Matthews, 891 So. 2d 479, 484 (Fla. 2004); see also Caprox Third Ave., LLC v. Donisi Ins. Inc., 67 So. 3d 312, 314 (Fla. 4th DCA 2011). The conduct here at issue–the failure to follow rules mandated by the Supreme Court for participation fees–typically occurs in the shadows and rarely emerges in the light of day. Original Panel Opinion We revers…
Authorities Cited
- Eugene Holly, M.D. v. Albert W. Auld, M.D., 450 So. 2d 217 (Fla. 1984)
- A. R. Douglass, Inc. v. McRainey, 102 Fla. 1141 (Fla. 1931)
- Abbey v. Abbey, 102 Fla. 1141 (Fla. 1931)
- Telisia Shaonte Kelley v. Rice, 800 So. 2d 247 (Fla. 2d DCA 2001)
- Terry v. State, 418 So. 2d 1055 (Fla. 5th DCA 1982)
- Hahn v. Frederick, 66 So. 2d 823 (Fla. 1953)
- McLAUGHLIN v. Dep't of Hwy. Safety & Motor Vehicles, 2 So. 3d 988 (Fla. 2d DCA 2008)
- S. Attractions, Inc. v. Art C. Grau, 93 So. 2d 120 (Fla. 1956)