County Civil Court:  CONTRACTS – garnishment of wages – debtor can waive statutory exemptions to garnishment of wages – trial court erred in not recognizing parties’ contract in which the debtor agreed to waive any garnishment defenses under Florida Statutes, section 222.11 - order reversed.  Portfolio Acquisitions, LLC v. Deardorff, Appeal No. 06-0011AP-88B (Fla. 6th Cir. App. Ct. Nov. 20, 2006). 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

PORTFOLIO ACQUISITIONS, LLC,

                        Appellant,

vs.                                                                                        Appeal No. 06-0011AP-88B

                                                                                            UCN522006P000011XXXXCV

STEPHEN DEARDORFF,

                        Appellee.

____________________________________________/

Appeal from Pinellas County Court

Judge Myra Scott McNary

 

Erik S. Kardatzke, Esquire

Attorney for Appellant

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Portfolio Acquisitions, LLC (Portfolio), from the Order Denying Plaintiff’s Motion for Entry of Final Judgment with Execution Withheld, entered December 21, 2005.  Upon review of the Initial Brief,[1] the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.

The record shows that Portfolio, pursuant to an assignment from Direct Merchants Credit Card Bank, filed a complaint against Stephen Deardorff (Deardorff) seeking to recover on an unpaid credit card debt.  Portfolio and Deardorff entered into a Stipulation for Entry of Final Judgment Execution Withheld that provided Deardorff would pay a principle sum of $ 9,619.14, plus interest, attorney’s fees, and costs.  Pertinent to this appeal, # 6 of the Stipulation states:  “In the event of Defendant(s) default under the terms of the Stipulation and Plaintiff obtains an execution order, the Defendant(s) hereby agree(s) to waive any garnishment defenses that are waivable under Florida Statute 222.11.”  The trial court refused to approve the Stipulation finding that it violated public policy against waiving garnishment exemptions in debtor-creditor relationships.

The sole issue raised on appeal is whether the trial court erred in refusing to enter a final judgment approving the parties’ Stipulation.  In addressing this issue, the Court finds that Florida Statute, section 222.11(2)(b), states that exemptions applicable to the garnishment of wages “may not be attached or garnished unless such person has agreed otherwise in writing.”  (emphasis added).  In applying the plain and ordinary meaning of the words used, the Court finds that this section clearly anticipates that a party subject to a garnishment action may enter into a contract giving up the protections afforded by the statutory exemptions.  See Gallagher v. Manatee County, 927 So.2d 914, 919 (Fla. 2d DCA 2006)(explaining that a statute’s plain and ordinary meaning must control unless this leads to an unreasonable result or a result clearly contrary to legislative intent);  see also Williams v. Espirito Santo Bank of Florida, 656 So.2d 212, 213 (Fla. 3d DCA 1995)(stating that a head of family is exempt from the garnishment of disposable earnings, unless a written agreement allowing garnishment is executed).  Further, as emphasized by the Second District Court of Appeal in Florida Associations of Counties Trust v. Polk County, 722 So.2d 883, 883 (Fla. 2d DCA 1998), “[a] party is bound by, and the court is powerless to rewrite, the clear and unambiguous terms of a voluntary contract.” 

In this case, the terms of the Stipulation are clear and were not contested by either party.  Indeed, as noted above, Deardorff declined to defend the trial court’s ruling on appeal.  The Court finds that, under these facts, applying the exemption waivers set forth in section 222.11(2)(b) will not lead to an unreasonable result and concludes that the trial court erred in not entering final judgment based on the terms of the parties’ Stipulation. The Court finds that this conclusion is consistent with its decision in MRC Receivables Corp. v. Klatz, Appeal No. 06-0025AP-88A (Fla. 6th Cir. App. Ct. Nov. 3, 2006), as well as other circuit court appellate opinions under similar facts.  See e.g. Capital Once Bank v. Eso, Appeal No. 05-00035-CAAP (Fla. 7th Cir. App. Ct. April 5, 2006); Capital One Bank v. Sotomayor, 13 Fla. L. Weekly Supp. 549a (Fla. 11th Cir. App. Ct. March 21, 2006); Sherman Acquisition II, LP, etc. v. Hawk, Appeal No. 05-00036-CAAP (Fla. 7th Cir. App. Ct. March17, 2006).   

Therefore, it is,

            ORDERED AND ADJUDGED that the Order Denying Plaintiff’s Motion for Entry of Final Judgment with Execution Withheld is reversed and this cause is remanded for action consistent with this Order and Opinion.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ______ of November 2006.

 

                                                         ________________________________

                                                         DAVID A. DEMERS

                                                         Circuit Judge, Appellate Division

 

 

 

 

 

______________________________                        ______________________________

ANTHONY RONDOLINO                                      PETER RAMSBERGER

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

Copies furnished to:

 

Judge Myra Scott McNary

 

Erik Stanley Kardatzke, Esquire

7765 S.W. 87th Avenue, Suite 101

Miami, FL  33173

 

Stephen Deardoff

74 Anclote Road

Tarpon Springs, FL  34689

 


[1] The Court notes that the Appellee, Stephen Deardorff, failed to file an Answer Brief even after being directed to do so.  However, the Court cannot not reverse the trial court based solely on Deardorff’s failure to file an Answer Brief and must review this case on the merits of the Initial Brief and the appellate record.  See  State, Board of Optometry v. Florida Society of Opthalmology, 538 So.2d 878, 888 (Fla. 1st DCA 1988)(explaining that appellate court must review case on the merits even when no answer brief is filed).