IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION

RICHARD JAMES NIGER and ANGELíS PAINTING, INC.,

††††††††††† ††††††††††† Appellants,

vs.††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††† Appeal No. 00-0530-CI-88A

IKON OFFICE SOLUTIONS, INC.,

††††††††††† ††††††††††† Appellee.

____________________________________/

Opinion filed ________________________

Appeals from Final Judgment

County Court, Civil Division, Pinellas County

The Honorable Karl B. Grube

Bruce H. Denson, Esquire
One Beach Drive SE, Suite 205
St. Petersburg, FL† 33701
Attorney for Appellant

Justin D. Jacobson, Esquire
Post Office Box 19359
Plantation, FL† 33316-0359
Attorney for Appellee

ORDER AND OPINION

††††††††††† THIS CAUSE came before the Court on appeal, filed by Richard James Niger (Appellant), from an Order Denying Motion to Dissolve Garnishment, entered November 23, 1999, and an Order Denying Motion for Reconsideration, entered on December 22, 1999.† Upon review of the record and the briefs and being otherwise fully advised, this Court finds and rules as follows.

††††††††††† Initially, this Court finds it is without appellate jurisdiction to review the Order Denying Motion to Dissolve Garnishment.† The Notice of Appeal was filed on January 13, 2000, more than 30 days after the lower court entered this Order, on November 23, 1999.† See Fla. R. App. P. 9.110(b)(2000).† However, this Courtís appellate jurisdiction was properly invoked to review the Order Denying Motion for Reconsideration.

††††††††††† The record reveals that the lower court entered a Final Judgment in Garnishment on November 23, 1999, finding that the ďplaintiff does have and recover against the Garnishee, NationsBank, N.A., the sum of $7,099.47 . . .Ē† The Appellant filed its Motion for Rehearing or Reconsideration, pursuant to Florida Statutes, section 77.16, arguing that ďthe Court erred in entering the Final Judgment in Garnishment without notice to the Defendant and in failing to recognize the legal distinction between Richard James Niger d/b/a Angelís Painting, a natural person and Angelís Painting, Inc., the debtor, a corporation.Ē† This Court agrees with the Appellantís position and finds that the lower court erred in entering the Final Judgment in Garnishment. †††††††††††

††††††††††† The underlying cause of action began when the Ikon Office Solutions, Inc. (Appellee), filed a complaint against Angelís Painting, Inc., defendant below.††† The Appellee did not seek to hold Richard James Niger individually or personally liable, nor did it name Richard James Niger d/b/a Angelís Painting as a defendant.† Additionally, the Appellee did not seek to pierce the corporate veil or allege improper actions against Richard James Niger or Richard James Niger d/b/a Angelís Painting.† (Even in cases where a plaintiff attempts to pierce the corporate veil, the individual, subsidiary, or sister corporation is a named party.† See Steinhardt v. Banks, et al., 511 So.2d 336 (Fla. 4th DCA 1987); see also Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla. 1984)).

††††††††††† Following the entry of a Final Judgment against Angelís Painting, Inc., the Appellee served a Writ of Garnishment upon Bank of America, N.A., f/k/a NationsBank, N.A., d/b/a NationsBank, N.A. (ďNationsBankĒ).† In answering the Writ of Garnishment, NationsBank stated that it had in its possession a Checking Account, number 001263291947, in the name of Richard James Niger dba Angelís Painting, in the amount of $7,099.47.† Based on this response, the Appellee moved for the entry of a Final Judgment in Garnishment against NationsBank, Garnishee, which the lower court granted.†††

††††††††††† As already set forth above, Richard James Niger dba Angelís Painting, was not a party or named defendant to the complaint filed by the Appellee.† Therefore, it was error for the Court to enter judgment for the Appellee to recover against the Garnishee, NationsBank, a debt due to a non-party and not due to the defendant, Angelís Painting, Inc.† See Fla. Stat. ß77.01(2000) (stating that a writ of garnishment is to subject any debt due to defendant by a third person)(emphasis added); see also Scogin v. Scoginís, Inc., 287 So.2d 712, 713 (Fla. 2d DCA 1974)(holding that garnishment should not be extended beyond statutory authority).† Additionally, the lower court could not base it decision to enter the Final Judgment in Garnishment based on what it might suspect or speculate to be true, i.e. Angelís Painting, Inc. is Richard James Niger dba Angelís Painting.† See Walter E. Heller & Co., Southeast v. Pointe Sanibel Dev. Corp., 392 So.2d 306, 309 (Fla. 3d DCA 1980)(stating that whether or not Heller Southeast was Heller of Florida and consequently should have prevailed, that status was not proved and the court could not base its decision on what it might suspect or speculate was true).

††††††††††† Additionally, it was error for the lower court to enter the Final Judgment in Garnishment before conducting an evidentiary hearing on the Richard James Nigerís claim, filed pursuant to Florida Statute, section 77.16, to his interest in the garnished checking account.† See H.B. London & Company v. Wiles, 695 So.2d 876 (Fla. 2d DCA 1997).† Richard James Niger should have been allowed, as a matter of due process, to present evidence in support of his claim prior to the entry of the Final Judgment in favor of the judgment creditor/Appellee.† See id. at 879 (citations omitted).† However, in lieu of this Courtís findings as set forth above, the matter need not be remanded for an evidentiary hearing.

††††††††††† Therefore, it is,

††††††††††† ORDERED AND ADJUDGED that the Final Judgment in Garnishment, upon which the Motion for Rehearing or Reconsideration was filed and subsequently denied, is reversed.† Upon remand the lower court shall enter an Order setting aside the Final Judgment in Garnishment.†

††††††††††† DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of October 2000.

 

___________________________________
CHARLES W. COPE
Circuit Judge, Appellate Division

Copies Furnished To:

The Honorable Karl B. Grube

Bruce H. Denson, Esquire
One Beach Drive SE, Suite 205
St. Petersburg, FL† 33701
Attorney for Appellant

Justin D. Jacobson, Esquire
Post Office Box 19359
Plantation, FL† 33316-0359
Attorney for Appellee

Dena E. Feldman, Esquire
100 South Biscayne Blvd., Suite 800
Miami, FL† 33131
Attorney for Garnishee

Staff Attorney, Appellate Division