final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 14-20811, Monica Gordo, Judge.
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.
ROTHENBERG,  SALTER and LOGUE, JJ.
Salcedo, plaintiff below, appeals the circuit court's
final judgment dismissing her third amended
complaint 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:
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.
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.
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?
Allegations and Procedural Background
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,  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
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." 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."
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
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.
Ms. Renzi's Bankruptcy
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.
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 ...