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Salcedo v. Wells Fargo Bank, N.A.

Florida Court of Appeals, Third District

June 21, 2017

Luz Mery Salcedo, Appellants,
v.
Wells Fargo Bank, N.A., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 14-20811, Monica Gordo, Judge.

          Easley Appellate Practice PLLC and Dorothy F. Easley; Austin Carr (Fort Lauderdale), for appellant.

          Stearns Weaver Miller Weissler Alhadeff & Sitterson and Marissa D. Kelley (Fort Lauderdale), for appellee.

          Before ROTHENBERG, [1] SALTER and LOGUE, JJ.

          SALTER, J.

         Luz Salcedo, plaintiff below, appeals the circuit court's final judgment dismissing her third amended complaint[2] against Wells Fargo Bank, N.A. ("Wells Fargo"), with prejudice. We affirm in part, reverse in part, and remand the case for further proceedings. The legal issues in the case are sufficiently novel to warrant description and analysis. These issues are:

         1. Whether a judgment creditor has a statutory cause of action for negligence, or a cause of action for spoliation, against a garnishee which identifies and "places a hold" on a safe deposit box over which the judgment debtor has control, if the garnishee nevertheless allows unauthorized access to the safe deposit box and removal of its contents in breach of the garnishee's statutory duty.

         2. Whether a subsequent discharge of the underlying judgment in the bankruptcy of the judgment debtor precludes further prosecution of the judgment creditor's claim or claims against the errant garnishee.

         3. If such a claim survives the discharge in bankruptcy of the judgment debtor, whether (a) the claim must be prosecuted as part of the garnishment in the original lawsuit, or (b) the claim may be prosecuted as a new and independent lawsuit against the garnishee. Restated, is a final judgment in garnishment-which did not adjudicate Ms. Salcedo's later claim of negligence relating to the contents of the safe deposit box-res judicata as to that negligence claim?

         I. Allegations and Procedural Background

         The complaint in the present action ("2014 Case") followed Ms. Salcedo's lengthy efforts in a prior case ("2006 Case") to recover $1, 025, 000.00 she had invested with Felix Rodriguez in 2003. In 2006, Ms. Salcedo filed a circuit court lawsuit alleging fraud, breach of fiduciary duty, and other claims. In March 2012, Ms. Salcedo obtained a final judgment against Mr. Rodriguez's widow, Maria Renzi de Rodriguez, [3] both individually and in her capacity as personal representative of the estate of Felix Rodriguez, for $895, 500.00. A. Garnishment and the Safe Deposit Box

         As part of her effort to collect the judgment against Ms. Renzi, Ms. Salcedo served a writ of garnishment in the 2006 Case on the appellee, Wells Fargo, in July 2012. In August 2012, Wells Fargo filed an amended answer as garnishee disclosing two bank accounts (with collective balances of $2, 078.41) in Ms. Renzi's name, as well as a safe deposit box in the name of "Maria C. Renzi, Jorge A. Villasmil, Jr., Marion Cecilia Villasmil."[4] Wells Fargo's amended answer reported that Wells Fargo "has placed a 'hold' on the Safe Deposit Box in accordance with Chapter 77, and primarily Section 77.06(2) and (3), Florida Statutes."

         Later that month, the trial court entered (a) a "Final Garnishment Judgment" requiring payment of Ms. Renzi's funds from the two accounts to Ms. Salcedo, and (b) on the same day, an order directing Wells Fargo to open the safe deposit box to permit Ms. Salcedo to inventory the contents, and to "make available for inspection and copying any and all records, including original signatures, if available, showing who, if anyone, has had access to the safe deposit box since the commencement of this action on February 22, 2006." The order for the inventory of the safe deposit box required the property in the box to be "held in the safe deposit pending further order of this court."

         However, when counsel for Ms. Salcedo arrived at the Wells Fargo branch ready to inventory the contents of the safe deposit box and to review the records regarding it, she was informed for the first time that the contents of the box had been removed and Ms. Renzi's account closed-well after Wells Fargo was served with the writ of garnishment.

         B. Ms. Renzi's Bankruptcy

         Five days after the order regarding the safe deposit box and discovery that Ms. Salcedo's son-in-law and daughter were given access to the box (despite Wells Fargo's representation that a "hold" would be in effect), Ms. Renzi filed a liquidating bankruptcy under Chapter 7 of the United States Bankruptcy Code. Initially, Ms. Salcedo appeared in the bankruptcy case and filed an adversary complaint objecting to Ms. Renzi's discharge as to Ms. Salcedo's unsatisfied 2012 judgment against Ms. Renzi. Ultimately, however, Ms. Salcedo abandoned that complaint in the bankruptcy case and Ms. Renzi obtained a discharge of indebtedness under 11 U.S.C. §727.

         Wells Fargo maintains that Ms. Renzi's discharge included the judgment against her held by Ms. Salcedo, such that there is no longer a judgment that can be collected in her 2014 Case against Wells Fargo. Ms. Salcedo argues that the claim against Wells Fargo accrued before Ms. Renzi's discharge was obtained, and that it is an independent claim to recover the value of funds or property taken from the safe deposit box that was on "hold, " in the ...


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