Keane v. President Condo. Assoc. Inc. , 2015 Fla. App. LEXIS 19220 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed December 23, 2015.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D14-2806 & 3D14-2525
Lower Tribunal No. 11-32171
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Brian P. Keane,
Appellant,
vs.
The President Condominium Association, Inc., et al.,
Appellees.
Appeals from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez,
Judge.
Newman & Tempkins, P.A., and Harry Tempkins, for appellant.
Becker & Poliakoff, P.A., and Lilliana M. Farinas-Sabogal and Michael C.
Gongora, for appellees.
Before SALTER, LOGUE, and SCALES, JJ.
LOGUE, J.
In these consolidated appeals, Brian P. Keane, a unit owner at the President
Condominium (“unit owner”), seeks review of the trial court’s order granting
attorneys’ fees in favor of the President Condominium Association, Inc.
(“Association”), as well as the trial court’s granting of the Association’s objection
to the unit owner’s claim of exemption from garnishment and request to strike.
The orders on appeal are the results of protracted litigation between the
parties, which commenced in 2009 when the unit owner filed a lawsuit in county
court against the Association over the license to use a parking space owned by the
Association. Years later, the case was resolved in favor of the Association and
attorneys’ fees and costs were awarded to the Association. Following the fee
award, the Association obtained a writ of garnishment against the unit owner. The
unit owner filed a claim of exemption to garnishment and the Association
successfully filed an objection and motion to strike. This appeal followed.
The unit owner raises several issues on appeal. We find only three issues
meritorious. While the trial court properly found that the Association was entitled
to attorneys’ fees, it appears, as properly and commendably conceded by the
Association, that the trial court inadvertently included in the final judgment fees
attributable to matters where fees were not recoverable. More specifically, the trial
court improperly awarded (1) fees directly related to a prior appeal before the
circuit court in its appellate capacity for which fees had been expressly denied, (2)
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fees attributable to the appeal in Keane v. The President Condominium
Association, Inc., 133 So. 3d 1154 (Fla. 3d DCA 2014), where again, fees were
denied, and (3) costs in the amount of $667.40, related to computerized legal
research which were not billed to the Association. These fees and costs were
improperly awarded and should be reduced from the judgment awarding fees.
Additionally, the trial court appears to have awarded fees for entries
between May 7, 2012 and May 24, 2012 for matters involving the unit owner, but
unrelated to the underlying case. An entry dated October 16, 2012 billing for a
matter involving the unit owner and a water leak, but unrelated to the underlying
matter, was also erroneously included. Because these entries were unrelated to the
underlying lawsuit, fees should not have been awarded on these entries and they
must also be removed from the fee award.
As to the writ of garnishment, the unit owner asserts that the trial court
committed reversible error by not dissolving the writ when the Association failed
to file a sworn written statement contesting the unit owner’s claimed exemptions
within the time provided by section 77.041(3), Florida Statutes (2014). We agree.
“We begin by acknowledging that garnishment statues must be strictly construed,
and statutory provisions regarding exemptions from garnishment must be strictly
construed in favor of the debtor.” Marquez v. BlueCare Home Health Servs., Inc.,
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116 So. 3d 563, 565 (Fla. 3d DCA 2013) (internal citation omitted). The
garnishment statute provides, in pertinent part:
Upon the filing by a defendant of a sworn claim of exemption and
request for hearing, a hearing will be held as soon as is practicable to
determine the validity of the claimed exemptions. If the plaintiff or the
plaintiff’s attorney does not file a sworn written statement that
answers the defendant’s claim of exemption within 8 business days
after hand delivering the claim and request or, alternatively, 14
business days if the claim and request were served by mail, no hearing
is required and the clerk must automatically dissolve the writ and
notify the parties of the dissolution by mail.
§ 77.041(3), Fla. Stat. (emphasis added).
Here, it is undisputed that the Association filed a written response, but it was
not sworn, as explicitly required by the statute, and the Association has cited to no
case which stands for the proposition that the sworn requirement of the statute is a
mere formality which can be ignored. Because we are bound to strictly construe
the statute in favor of the debtor, we must reverse the trial court’s order granting
the Association’s objection to the unit owner’s claim of exemption from
garnishment and request to strike. We note that this holding is without prejudice to
the Association filing a new petition for writ of garnishment.
We affirm on all other issues.
Affirmed in part, reversed in part, and remanded with instructions.
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