Charter Schools USA, Inc. v. John Doe No. 93 ( 2014 )

Third District Court of Appeal
State of Florida
Opinion filed November 12, 2014.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-1452
Lower Tribunal No. 12-25666
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Charter Schools USA, Inc., et al.,
Appellants,
vs.
John Doe No. 93, etc., et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Beatrice A. Butchko, Judge.
Carlton Fields Jorden Burt, Peter D. Webster and Christine Davis Graves,
(Tallahassee), for appellants.
Jeff Herman, Stuart S. Mermelstein, Maureen Connor and Arick W. Fudali,
(Boca Raton), for appellees.
Before WELLS, SALTER and FERNANDEZ, JJ.
WELLS, Judge.
Charter Schools USA, Inc., The Downtown Charter School, Inc., Charter
Schools USA at Downtown Miami, L.C. (collectively Charter Schools) appeal
from an order denying their motion to dissolve writs of garnishment and to enforce
supersedeas bond. We find no error in the order on appeal and affirm.
This action was commenced on behalf of a minor child who claimed to have
been sexually abused by another student while attending a Charter School. In
April of 2014, a jury awarded $5,250,000 to the child and on April 23 a final
judgment was entered in the child’s favor. The judgment was recorded in the
public records of Miami-Dade County, Florida on April 25.
On April 30, 2014, Charter Schools filed a timely Florida Rule of Civil
Procedure 1.530 motion for judgment notwithstanding verdict or in the alternative
for a new trial or, remittitur. These motions were heard and denied on June 9 with
the trial court signing an order that day. The following day, the minor child filed
motions for issuance of writs of garnishment and writs of garnishment were issued
on June 10 and 11.1
On June 13, four days after the order denying Charter Schools’ post-
judgment motions was signed, the order was docketed by the Clerk of the Circuit
Court. That same day, Charter Schools filed a notice of appeal from the final
1 See C & S Plumbing, Inc. v. Live Supply, Inc., 397 So. 2d 998, 999 (Fla. 4th
DCA 1981) (“A writ of garnishment is one form of final process to enforce a
judgment solely for the payment of money. See Fla.R.Civ.P. 1.570(a).”).
2
judgment and posted a supersedeas bond. Upon learning that its bank accounts had
been garnished, Charter Schools filed an emergency motion to dissolve the writs of
garnishment and to enforce the supersedeas bond which it had posted. That motion
was denied.
Charter Schools appeals from the order denying its motion to dissolve the
writs and to enforce its supersedeas bond, claiming that it “would be inequitable,
and create chaos in Florida’s legal system” to allow a party to execute on a
judgment before a signed copy of it is docketed by the clerk of the court—that is,
before it is “rendered.” Because nothing in the rules of procedure or the law
expressly precludes execution on a judgment before “rendition” and because the
instant litigants could have sought a short stay until the order at issue was rendered
but failed to do so, we disagree with the school’s position.
Florida Rule of Civil Procedure 1.550 expressly provides that a judgment is
subject to execution at any time during its life. Only two exceptions to this
general rule are recognized. First, a party may not execute on a judgment until it
has been recorded in the public records. Second, a party may not execute on a
judgment within the time accorded by Rule 1.530 for serving motions for new trial
or rehearing, and if timely served until such motion has been “determined”:
Rule 1.550. Executions and Final Process
(a) Issuance. Executions on judgments shall issue during the life of
the judgment on the oral request of the party entitled to it or the
3
party’s attorney without praecipe. No execution or other final
process shall issue until the judgment on which it is based has been
recorded nor within the time for serving a motion for new trial or
rehearing, and if a motion for new trial or rehearing is timely
served, until it is determined; provided execution or other final
process may be issued on special order of the court at any time
after judgment.
As this rule clearly states, execution is stayed pending a timely motion for
new trial/rehearing but only until that motion is determined. And while the term
“determined” as used in this rule is not defined in the rules of procedure, either
civil or appellate, it is equally clear that the rule does not provide that execution is
stayed until an order on such motions has been “rendered,” as defined in Florida
Rule of Appellate Procedure 9.020 (i). See Fla. R. App. 9.020(i) (providing that an
order is rendered when filed with the clerk of the lower tribunal).2
There is, of course, nothing inequitable or unfair about this. Neither of these
rules preclude the filing of a supersedeas bond after an order is signed but before it
2 A party is “entitled to rely on the Rules as they read.” Nolan v. Eshleman, 183
So. 2d 205, 207 (Fla. 1966). “Court rules are construed under the same principles
of construction that apply to statutes. Syndicate Properties, Inc. v. Hotel Floridian
Co., 94 Fla. 899, 114 So. 441 (Fla. 1927); Rowe v. State, 394 So. 2d 1059 (Fla. 1st
DCA 1981). One of the fundamental rules of construction dictates that when the
language under review is unambiguous and conveys a clear meaning, it must be
given its plain and ordinary meaning. In re McCollam, 612 So. 2d 572, 573 (Fla.
1993); Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984).” Castillo v. Vlaminck de
Castillo, 771 So. 2d 609, 610-11 (Fla. 3d DCA 2000). See Gar-Con Development,
Inc. v. State, Dept. of Environmental Regulation, 468 So. 2d 413, 415 (Fla. 1st
DCA 1985) (“In interpreting rules or statutes, words should be given their plain
and ordinary meaning. Department of Health and Rehabilitative Services v.
McTigue, 387 So. 2d 454 (Fla. 1st DCA 1980).”).
4
has been filed with the lower court clerk (rendered). Indeed, Rule 9.310 governing
stays pending appellate review imposes no such prohibition:
Rule 9.310. Stay Pending Review
(a) Application. Except as provided by general law and in
subdivision (b) of this rule, a party seeking to stay a final or non-
final order pending review shall file a motion in the lower
tribunal, which shall have continuing jurisdiction, in its
discretion, to grant modify, or deny such relief. A stay pending
review may be conditioned on the posting of a good and
sufficient bond, other conditions, or both.
(b)Exceptions.
(1)Money Judgments. If the order is a judgment solely for the
payment of money, a party may obtain an automatic stay of execution
pending review, without the necessity of a motion or order, by posting
a good and sufficient bond equal to the principal amount of the
judgment plus twice the statutory rate of interest on judgments on the
total amount on which the party has an obligation to pay interest. . . .
While it is true that motions for new trial/rehearing are deemed abandoned
when a notice of appeal is filed either before such motions are asserted or before an
order thereon is filed with the lower court clerk (that is, rendered), nothing in the
rules precludes a party from moving, either orally or in writing, in the court below
for a stay of execution for a short time so that an order denying a motion for new
trial/rehearing may be “rendered.” See Campbell v. Jones, 648 So. 2d 208, 209 n.
1 (Fla. 3d DCA 1994) (“We note that Fla. R. Civ. P. 1.550(b) has been described
as a vehicle for protecting a judgment debtor ‘briefly while he perfects his appeal
and obtains supersedeas.’ Barnett v. Barnett Bank of Jacksonville, N.A., 338 So.
52d 888, 889 (Fla. 1st DCA 1976) (emphasis added). See also Chapman v. Rose,
295 So. 2d 667 (Fla. 2d DCA 1974) (temporary stay of execution on money
judgment would have been appropriate under Fla. R. Civ. P. 1.550(b) for four days
while appeal filed and supersedeas obtained).”).3 That was not done in this case
and for this reason alone we find no basis for reversal.
We also find no basis for holding otherwise in the 1967 Authors’ Comments
to Rule 1.550 which states “[i]n connection with this rule, consideration should be
given to F.S.A. Ch. 55, which deals at length with judgments and executions.”
See Authors' Comments, West's Florida Statutes Annotated, Rule 1.550, Florida
Rules of Civil Procedure (1967). Chapter 55 uses the term “rendition” only twice,
once in section 55.04 which deals with the interest rate to be assessed on
judgments rendered on government bonds and sheds no light whatsoever on when
3 See generally Elliot H. Scherker, Julissa Rodriguez, Rachel A. Canfield,
Stephanie L. Varela, Jay A. Yagoda, & Nancy Wear, Stays, in Florida Appellate
Practice, § 17-4 (Fla. Bar CLE 9th ed. 2014) (“Rule 1.550 should be invoked in
cases in which there is a legitimate threat of immediate execution. The motion
should request that execution be stayed for a brief period so that the appellant can
file a notice of appeal and obtain a stay. Filing this motion may prevent the clerk
from issuing execution without a court order. It is clear, however, that a Rule
1.550(b) motion cannot be used as a substitute for a stay pending appeal. A trial
court cannot enter an order delaying execution during the entire pendency of
appeal, because doing so would circumvent the requirements of the rules.
Campbell; Barnett v. Barnett Bank of Jacksonville, N.A., 338 So. 2d 888 (Fla. 1st
DCA 1976); see also Mellon United National Bank v. Cochran, 776 So. 2d 964(Fla. 3d DCA 2000). Rather, the purpose of a Rule 1.550(b) motion is simply to
give the appellant time to obtain a stay or post a bond, or do both, without
suffering execution in the interim. See Greenbriar Condominium Ass'n, Inc. v.
Padgett, 583 So. 2d 1100 (Fla. 4th DCA 1991).”).
6
a judgment creditor may execute on a signed order or judgment; see § 55.04 Fla.
Stat. (2014), and then in section 55.07 which states that when an order or judgment
has been rendered by virtue of docketing in the circuit court, the validity of any
proceedings on that order or judgment cannot be collaterally attacked even if the
order or judgment has not been recorded in the official public records:
55.07 Judgments; effect of failure to record.
The failure to record any order, judgment or decree shall not affect the
validity of any proceedings had thereon when collaterally attacked;
provided, rendition of such order, judgment or decree is shown by the
progress docket in the cause. . . .
§ 55.07, Fla. Stat. (2014). Neither reference is enlightening here.
More to the point, however, is the Florida Supreme Court’s use of the term
“rendition” when amending the rule for executions on judgments in the circuit and
county courts. See Fla. R. Civ. P. 1.550; Fl. Sm. Cl. R. 7.200. On the very same
day, June 19, 1968, the Florida Supreme Court amended Rules 1.550 and 7.200 so
they similarly provided that no execution shall issue “until the judgment on which
it is based has been recorded,” or, where a motion for new trial had been timely
served, “until [the motion] is determined.” See In re Fla. Summary Claims
Procedure Rules, 211 So. 2d 553, 553 (Fla. 1968); In re Fla. Rules of Civil
Procedure, 211 So. 2d 206, 208 (Fla. 1968).
With minor revisions not relevant here, Rule 1.550 has remained the same to
this day with respect to “recordation” of the judgment and “determination” of a
7
motion for new trial. However, in 1972, the Florida Supreme Court amended Rule
7.200 to provide, as it now does, that no execution on county court judgments shall
be issued until the judgment is rendered:
. . . No execution or other final process shall issue until the judgment
on which it is based has been rendered nor within the time for serving
a motion for new trial and if a motion for new trial is timely served,
until it is determined . . . .
In re Rules of Summary Procedure, 270 So. 2d 729, 735-36 (Fla. 1972). This
amendment clearly demonstrates that the Florida Supreme Court understood and
intended that there be a difference between what is “recorded,” what is “rendered”
and what is “determined.” We therefore cannot agree with the dissent’s
supposition that “determined” in the context of Rule 1.550 “is functionally
equivalent to the term ‘rendered’ in Florida Rule of Appellate Procedure 9.020(i).”
Finally, and possibly most significantly, the use of the term “determined” as
“having reached a decision,”4 is the best way to protect the party in whose favor a
judgment has been entered. That is, it allows that party to execute on his judgment
until his rights have been otherwise secured—i.e. a bond has been posted. See
Pabian v. Pabian, 469 So. 2d 189, 191 (Fla. 4th DCA 1985)(“[T]he guiding
principle in setting a supersedeas bond is to protect the party in whose favor
judgment was entered by assuring its payment in the event the judgment is
4 See Merriam–Webster: An Encyclopdia Britannica Company,
http://www.merriam-webster.com/dictionary/determined (last visited Sept. 12,
2014).
8
affirmed on appeal.”). Thus, as one source advises “a party who intends to stay a
judgment by posting a bond should arrange to have a bond in place at the time the
trial court rules on the post-trial motions.” Raymond T. (Tom) Elligett & John M.
Scheb, Appellate Stays And Bonds, 75 FL B.J. 33 (2001).5 That was not done in
this case.
In sum, we find no problem in concluding “determined” means the point in
time when the trial judge, in this case signed an order ruling on the school’s post-
trial motions. We affirm the order denying Charter School’s motion to dissolve
writs of garnishment and to enforce supersedeas bond. In light of the funds frozen,
the trial court may consider a motion to reduce the amount of the supersedeas
bond, should Charter School seek such relief. See Freedom Insurors, Inc. v. M.D.
Moody & Sons, Inc., 869 So. 2d 1283, 1285 (Fla. 4th DCA 2004).6
5 It is worth remembering that if the appellant does not stay a monetary judgment,
and the appellee/judgment creditor executes on the judgment during the appeal,
and the judgment is ultimately reversed, the appellant is entitled to have its
property restored to it by the appellee. While it is true “the appellant who does not
post a bond runs the risk that at the time of reversal the appellee may no longer
have the money and may be judgment proof,” but this is the price paid for not
securing a bond. Appellate Stays And Bonds, 75 FL B. J. at 33.
6 The dissent observes:
[t]he trial court stayed further proceedings on the writs of garnishment
pending this appeal, but the funds frozen by the banks, $2,017,000.00,
remain frozen and unavailable to the schools, while the full amount of
the supersedeas bond ($5,748,750) also remains in place.
However any perceived injustice by this circumstance could be remedied as
was done in Freedom Insurors, 869 So. 2d at 1285, where the Fourth District
9
FERNANDEZ, J., CONCURS.
approved the trial court’s action in reducing the supersedeas bond amount by the
amount already held as a result of the previously instituted garnishment
proceeding:
Given the supreme court’s characterization of the effect of a
supersedeas, the proper remedy in this case was to stay the
garnishment proceeding once the supersedeas went into effect on June
13. See Fla. Steel Corp. v. A.G. Spanos Enters., Inc., 332 So. 2d 663,
664-65 (Fla. 2d DCA 1976) (holding that where judgment has been
superseded pending appeal, a garnishment proceeding directed at that
judgment should be stayed, and not dissolved); see also GEICO Fin.
Servs. v. Kramer, 575 So. 2d 1345, 1347 (Fla. 4th DCA 1991)
(following Fla. Steel ); Richard’s Paint Mfg., Co. v. Onyx Paints, Inc.,
394 So. 2d 1064, 1066 (Fla. 4th DCA 1981) (same). This is what the
circuit court did; the court accommodated Freedom by reducing the
amount of the bond by the amount held in the garnishment.
See 3 Fla. Jur. 2d Appellate Review § 168 (2014) (“A judgment debtor ‘posts’ a
supersedeas bond, for purposes of an automatic stay pending appeal, on the date
the bond is filed with the clerk of court rather than the date the debtor obtains the
bond, and thus a writ of garnishment obtained by a judgment creditor after the
bond is obtained but before it is filed is properly stayed but not dissolved. The
automatic stay is not effective until the bond is posted.”).
10
Charter Schools USA, Inc. v. John Doe No. 93
Case No. 3D14-1452
SALTER, J. (dissenting).
I respectfully dissent. The issue in this appeal, apparently one of first
impression in Florida, is whether the word “determined” in Florida Rule of Civil
Procedure 1.550(a) (the rule governing executions and final process) means the
point at which a trial judge signs an order denying a timely and authorized motion
for new trial or rehearing, or the later point at which the order is “rendered” as
defined in Florida Rule of Appellate Procedure 9.020(i).7 The answer to the
7 Rule 9.020 provides:
(i) Rendition (of an Order). An order is rendered when a
signed, written order is filed with the clerk of the lower tribunal.
However, unless another applicable rule of procedure specifically
provides to the contrary, if a final order has been entered and there has
been filed in the lower tribunal an authorized and timely motion for
new trial, for rehearing, for certification, to alter or amend, for
judgment in accordance with prior motion for directed verdict . . . the
following exceptions apply:
(1) If such a motion or motions have been filed, the final order
shall not be deemed rendered with respect to any claim between the
movant and any party against whom relief is sought by the motion or
motions until the filing of a signed, written order disposing of all such
motions between such parties.
(2) If such a motion or motions have been filed, a signed, written
order granting a new trial shall be deemed rendered when filed with
the clerk, notwithstanding that other such motions may remain
pending at the time.
Footnote 1 cont.
11
question is significant, because it controls whether a judgment creditor may
commence execution during the time between those two events—a time window
during which the judgment debtor cannot commence its appeal and obtain the
automatic stay available under Florida Rule of Appellate Procedure 9.310(b)(1)
without abandoning the post-trial motions.
Construing the pertinent rules in pari materia and in conformance with (a)
the author’s comment to Rule 1.550, (b) the statutory provisions regarding
execution on final judgments, and (c) the Supreme Court of Florida’s form of civil
supersedeas bond approved for use to obtain an automatic stay of execution on a
money judgment pending appeal, the appellees’ otherwise-successful garnishment
(freezing over $2,000,000.00 of the appellants’ two bank accounts) was premature.
The record before us also demonstrates that counsel for the appellees failed to e-
mail copies of the motions for issuance of the writs of garnishment as required by
the applicable rules. I would therefore reverse the order denying the appellants’
motion to dissolve the writ.
I. Facts and Procedural Background
(3) If such a motion or motions have been filed and a notice of
appeal is filed before the filing of a signed, written order disposing of
all such motions, all motions filed by the appealing party that are
pending at the time shall be deemed abandoned, and the final order
shall be deemed rendered by the filing of the notice of appeal as to all
claims between parties who then have no such motions pending
between them.
12
The majority opinion accurately recounts the facts and proceedings in the
underlying case to the point of verdict and judgment. I am in agreement with the
majority that Charter Schools8 filed the timely motions to amend the final
judgment and for judgment notwithstanding the verdict (or, alternatively, for new
trial or remittitur) on April 30, 2014, thereby precluding execution under Florida
Rule of Civil Procedure 1.550(a) until those motions were “determined” by the
trial court. The motions were heard on June 9, 2014. The trial judge verbally
denied the motions and signed an order to that effect at the conclusion of the
hearing. The order was not filed with the circuit court clerk’s office until the
morning of June 13, 2014. Hours later that same day, the schools filed and served
their notice of appeal9 and an original supersedeas bond in the form and amount
required to stay the money judgment. There is no disagreement on the events
through this point.
The chronology of the post judgment garnishments includes some additional
facts, however, that should not be overlooked. In the interim between the signing
of the order denying post-trial motions and the filing/“rendition” of that order, the
plaintiff/appellees’ counsel obtained writs of garnishment directed to Charter
8 As my colleagues did in the majority opinion, I use the term “Charter Schools”
to refer collectively to all three appellants.
9 The schools’ appeal from the final judgment is Case No. 3D14-1479. The cases
have not been consolidated.
13
Schools’ banks (on June 10 and 11, 2014), without notice to the schools’ counsel.
The writs were served immediately, and Charter Schools’ accounts were frozen
before Charter Schools’ notice of appeal and supersedeas bond could be filed
without “abandoning” the post-trial motions under Fla. R. App. P. 9.020(i)(3).
Charter Schools’ emergency motion to enforce supersedeas and to dissolve
the writs of garnishment was heard by the trial court on June 13 and 14, 2014, and
denied on June 14, 2014. The trial court stayed further proceedings on the writs of
garnishment pending this appeal, but the funds frozen by the banks, $2,017,000.00,
remain frozen and unavailable to Charter Schools, while the full amount of the
supersedeas bond ($5,748,750) also remains in place.
II. Analysis
Our review of the provisions of the pertinent rules of procedure is de novo.
Strax Rejuvenation & Aesthetics Inst., Inc. v. Shield, 49 So. 3d 741, 742 (Fla.
2010). Strax Rejuvenation also provides a guide for our construction of the
pertinent rules:
Specifically as to construction of the Court’s procedural rules, we
have previously explained that “[t]he general guide to construction of
the procedural rules is set forth in Florida Rule of Civil Procedure
1.010, which states that the rules ‘shall be construed to secure the just,
speedy, and inexpensive determination of every action.’” Barco v.
School Bd. Of Pinellas County, 975 So. 2d 1116, 1123 (Fla. 2008)
(quoting Fla. R. Civ. P. 1.010); see also Singletary v. State, 322 So. 2d
551, 555 (Fla. 1975) (“Procedural rules should be given a construction
calculated to further justice, not to frustrate it.”).
14
Strax Rejuvenation, 49 So. 3d at 742-43.
A. “Determined”
My colleagues maintain that the plain meaning of “determined,” for
purposes of the post-trial motions and Rule 1.550(a), is “having reached a
decision,”10 and that the drafters could easily have used (or could now amend the
rule to use) “rendered” if that was what they meant. Charter Schools contend, and
I agree, that “determined” is ambiguous in the sense that it is unclear whether it
refers to a trial court’s oral pronouncement, its signature on an order, or the filing
of that order.
The term should be read in conjunction with the rules establishing the point
at which a final judgment subject to authorized post-trial motions is “final” for
purposes of (a) commencing an appeal without “abandoning” post-trial motions
and (b) obtaining the automatic stay pending appeal by posting a supersedeas
bond. Charter Schools point out that on the very day the order denying their post-
trial motions was filed—establishing the date the final judgment was “rendered”
and thus subject to appeal under Rule 9.020(i)—they filed their notice of appeal
10 The majority obtained this meaning from Merriam-Webster: An Encyclopedia
Brittanica Company, http://www.merriam-webster.com/dictionary/determined.
That definition refers to the adjective, “determined,” as in “firmly resolved,” or “I
am determined to be a pilot.” The first definition of the verb “determine,”
pertinent here, is “to fix conclusively or authoritatively.” Id. (emphasis supplied;
last visited Sept. 16, 2014). That definition of the verb is also the meaning
ascribed by Webster’s Third New International Dictionary 616 (1986 ed.,
unabridged).
15
and a supersedeas bond for $5,748,750.00. The bond was in the form prescribed by
the Supreme Court of Florida.11 The amount of the bond was sufficient to cover
the final judgment and two years of interest, the amount specified by Rule
9.310(b)(1) for an automatic stay of execution pending the appeal.
The rules of civil procedure and appellate procedure both establish “finality”
as a prerequisite for execution on a judgment and for an appeal from a judgment.
“Execution is only permitted on judgments which determine with finality the rights
and liabilities of parties.” Nichols v. Michael D. Eicholtz Enters., 706 So. 2d 70,
70 (Fla. 5th DCA 1998) (citing Shakarian v. Daum, 561 So. 2d 1222 (Fla. 2d DCA
1990)). Florida courts are now less concerned with the caption on the judgment or
the incantation “for which let execution issue”12 than with an assessment of
whether all judicial labor is complete (with exceptions and a retention of
jurisdiction for attorney’s fees, costs, and prejudgment interest). Westgate Miami
Beach, Ltd. v. Newport Operating Corp., 55 So. 3d 567 (Fla. 2010).
In considering “finality” for purposes of appealability, a bright line is critical
because it is an essential aspect of computing the time to appeal and establishing a
reviewing court’s jurisdiction. Moreover, an appeal initiated before an authorized
post-trial motion has been “rendered,” i.e., filed with the clerk rather than merely
11 Fla. R. App. P. 9.900(i).
12 See GEICO Fin. Servs., Inc. v. Kramer, 575 So. 2d 1345 (Fla. 4th DCA 1991).
16
signed, is deemed to “abandon” that post-trial motion. Fla. R. App. P. 9.020(i)(3),
supra, note 1.
In considering “finality” for purposes of execution on a judgment, the
Supreme Court of Florida rectified a “procedural quandary” similar to the one
presented here. That quandary arose when a trial court entered a final judgment
that reserved jurisdiction to award prejudgment interest. Westgate Miami Beach,
Ltd., at 575 n.7. Before the decision in Westgate Miami Beach, Ltd., a final
judgment which expressly reserved jurisdiction for an award of prejudgment
interest, but otherwise authorized the issuance of execution, was appealable.
McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992). McGurn held, however, that “once
an appeal is taken, the trial court then lacks jurisdiction to rule on the issue of
prejudgment interest and plaintiff will be deemed to have waived the matter of
prejudgment interest.” Westgate Miami Beach, Ltd., at 570 (citing McGurn at
1045).
The Supreme Court in Westgate Miami Beach, Ltd. receded from McGurn
in part (by treating the reservation to award prejudgment interest in the same
manner as a reservation of jurisdiction to award attorney’s fees and costs),
expressing an intention “to promote judicial economy and prevent unfairness to
either party.” Westgate Miami Beach, Ltd., at 570. In its footnote 7, the Court
specifically addressed the problem confronted by the schools in the present case:
17
Because the final judgment will still be considered final for purposes
of appeal, this avoids the procedural quandary by allowing the
defendant to appeal a final judgment that appears final on its face and
authorizes execution on the defendant’s assets, while enabling the
defendant to take steps to prevent execution by posting a supersedeas
bond.
Id. at 575, n. 7.
To construe Rule 1.550(a)’s use of the word “determined” as an event that
can occur days before the final judgment in question is “rendered” (and can only
then be appealed without abandoning the very post-trial motions that stay
execution under Rule 1.550(a) during their pendency) is to put the horse before the
cart and unfairly prejudice the judgment debtor. The approved form for the
supersedeas bond that puts an automatic stop to execution on a money judgment,
Florida Rule of Appellate Procedure 9.900(i), recites that the judgment debtor
(“principal”) “has entered an appeal” to the reviewing court in the case. Counsel
for the appellees argues that the bond can be filed in advance of the filing of a
notice of appeal, but the Supreme Court’s approved form does not contemplate
such an occurrence.
The “Author’s Comment—1967” to Rule 1.550 states: “In connection with
this rule, consideration should be given to F.S.A. Ch. 55, which deals at length
with judgments and executions.” Chapter 55, Florida Statutes (2013), in turn
provides two clues regarding the “determined” versus “rendered” question before
us. Section 55.04, relating to judgments enforcing municipal bond obligations,
18
uses the term “rendered” to refer to the judgment or decree. Section 55.07,
addressing a judgment creditor’s failure to record an order, judgment, or decree,
excuses that omission so long as “rendition of such order, judgment or decree is
shown by the progress docket in the cause.” There is no suggestion in Chapter 55
that execution may be commenced on a judgment that has not been “rendered” for
purposes of appeal.
Judicial economy and fairness are both promoted by aligning the right to
execute and the right to appeal (and post an appeal bond) under these
circumstances. To allow a race to execute and garnish after an order denying the
authorized post-trial motions has been orally pronounced or signed, but before the
order has been filed with the clerk and “rendered,” would result in a flurry of writs
and emergency motions13 better avoided by a bright-line rule. As noted earlier in
the excerpts from Strax Rejuvenation & Aesthetics Institute, Inc., and Rule 1.010,
Charter Schools’ proposed construction of “determined” is better calculated to
“secure the just, speedy, and inexpensive determination” of the execution-appeal
bond quandary. I would reverse the order below and direct the trial court to vacate
13The Second District Court of Appeal has recently granted certiorari to quash an
order allowing execution “prior to rendition of a truly appealable final judgment in
the case.” East Ave., LLC v. Insignia Bank, 136 So. 3d 659, 665 (Fla. 2d DCA
2014). That carefully reasoned opinion observes, “Permitting execution prior to
completion of the litigation before the trial court has long been characterized as
improper by the appellate courts.” Id. I agree.
19
the writs of garnishment. The plaintiffs/appellees are fully protected by the
existing surety bond in the prescribed form.
B. Failure to Serve Motions; Lack of Notice
There is a troublesome aspect to this particular case. Counsel for the
appellees would have galvanized Charter Schools into action—to hasten the filing
of the appeal bond, or to oppose the issuance of the writs of garnishment, or to
seek an emergency stay of short duration to finalize the bond—if they had properly
served their “motions for garnishment after judgment” on counsel for Charter
Schools. Section 77.03, Florida Statutes (2013), “Issuance of writ after judgment,”
requires that a motion for such a writ “shall” be filed, and the motions in fact were
filed (but not served) in the underlying case on June 10 and 11, 2014, days before
the order denying Charter Schools’ post-trial motions was filed and the final
judgment thereby “rendered.”14
Florida Rule of Civil Procedure 1.080, “Service and Filing of Pleadings,
Orders, and Documents,” requires that “every” pleading, order and other document
after the initial complaint or petition “must be served in conformity with the
requirements of Florida Rule of Judicial Administration 2.516.” Rule 2.516, in
14 A motion for the issuance of a writ of garnishment “after the validity of the debt
has been adjudicated” does not entitle the judgment debtor to “notice and a
hearing” before the writ is issued. First Union Nat. Bank of Fla. V. Knyal, 874 So.
2d 716, 717 (Fla. 4th DCA 2004). Nonetheless, the applicable statute requires that
the motion be filed, and the rules of procedure required that it be served.
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turn, required counsel for the appellees to e-mail copies of the motions to opposing
counsel (unless excused from doing so by the court, which they were not).
Although the appellees’ counsel had been regularly complying with this rule for
other papers and pleadings, they did not e-mail their motions for garnishment after
judgment to opposing counsel on June 10 and 11, 2014.
Whether the appellees’ counsel’s failure to e-mail the motions for
garnishment after judgment to the schools’ counsel was through an oversight or
was intentional,15 the failure to give notice of an action with such drastic
consequences (freezing Charter Schools’ operating accounts without notice), and
the failure to comply with the rules of procedure, constitutes a further basis for
reversal in the present case. Notice is not merely an indispensable aspect of due
process, it is the hallmark of professionalism.16 “Post-trial by ambush” is no more
acceptable than trial by ambush.
III. Conclusion
15 Before the pertinent rules on e-mail were added, it was permissible for an
attorney for a judgment creditor to file a motion for garnishment, obtain the writ,
and serve the motion by regular mail, thus allowing two or more days to serve the
writ on a bank before a judgment debtor “woke up.” The element of surprise,
permissible years ago but no longer, reduced the possibility that the judgment
debtor would change banks or clear out an account.
16 See Section C, “Service of Papers,” of the Guidelines for Professional Conduct
promulgated by the Conferences of Circuit and County Court Judges and the Trial
Lawyers Section of The Florida Bar.
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Lawrence Peter “Yogi” Berra said, among so many other things, “It ain’t
over ‘til it’s over.” That’s the way it should work with authorized post-trial
motions. A verbal ruling at a hearing can change after a judge reflects further on
an argument. An order that has been signed can be held by a judge to permit such
reflection. My colleagues may consider those possibilities so remote as to warrant
disregarding them, but I do not. In the demarcation line between trial practice and
appellate practice, “determined” or “over” surely must mean “filed with the clerk,”
rather than “spoken” or “signed but not filed.”
In the present case, I would also reverse because counsel for the appellees
should have served opposing counsel, by e-mail, with their motions for the
issuance of writs of garnishment, but did not.
For each of these reasons, I respectfully dissent. I would reverse the order
denying the schools’ motion to quash the writs of garnishment (allowing the
immediate access of Charter Schools to their frozen accounts), and I would leave
in full force and effect the supersedeas bond and resultant stay pending Charter
Schools’ appeal on the merits.
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