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Kearney Construction Co., LLC v. Travelers Casualty & Surety Co. of America

United States District Court, M.D. Florida, Tampa Division

January 23, 2018

KEARNEY CONSTRUCTION COMPANY LLC, Plaintiff,
v.
TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA, Defendant,
v.
KEARNEY CONSTRUCTION COMPANY, LLC, et. al, Third Party Defendants. USAMERIBANK, Garnishee.

          REPORT AND RECOMMENDATION

          THOMAS B. McCOUN III UNITED STATES MAGISTRATE JUDGE.

         THIS CAUSE is before the Court following a status conference conducted January 11, 2018.

         Pending before the Court is Travelers Casualty & Surety Company of America's Motion for Final Judgment in Garnishment as to the IRA Account. (Doc. 874). By the motion, Travelers seeks final judgment in its favor and an order directing USAmeriBank to release the funds in the “IRA Account” ending -1122. It claims disbursement of these funds is now appropriate given that the Eleventh Circuit has affirmed the district court's ruling that voided FTBB's priority lien and given the ruling that this account is not exempt from garnishment. Id.

         The garnishee USAmeriBank has filed a limited response in opposition, asserting it is entitled to a determination of its attorneys' fees expended on the garnishment issue and to recoup same from the funds prior to disbursement. (Doc. 876).[1]

         Bing Charles W. Kearney also filed a response in opposition. (Doc. 877). Mr. Kearney sets out the procedural history and disputes that he has elected to forego his legal right to challenge the Court's rulings on the IRA account. He maintains his claim of exemption to the IRA funds and asserts he is entitled to file an appeal of any final judgment in garnishment. Id.

         At hearing, Travelers indicated that final judgment is now appropriate on the entirety of the USAmeriBank funds held subject to the Writ of Garnishment issued by the Clerk on July 24, 2015. (Doc. 556, hereinafter “the Writ”).[2] The parties agreed that consistent with the statute, the matter of USAmeriBank's fees should be determined prior to disbursement of the funds, but such does not necessarily impede the Court's ability to enter final judgment, provided, however, the Court defer disbursement and reserve jurisdiction to determine such fees.[3] In addition, at hearing, Mr. Kearney requested that disbursement of the funds and enforcement of any final judgment be stayed pending its anticipated appeal of the judgment.

         Garnishment proceedings in Florida are governed by Chapter 77 of the Florida Statutes. Florida Statute § 77.083 states, “Judgment against the garnishee on the garnishee's answer or after trial of a reply to the garnishee's answer shall be entered for the amount of his or her liability as disclosed by the answer or trial.” Fla. Stat., § 77.083.

         As noted above, USAmeriBank is indebted to Mr. Kearney in the total amount of $1, 158, 037.38. (Doc. 577). There is no dispute as to the amount being held by USAmeriBank. While Mr. Kearney and others have raised various legal and factual issues, including claims of exemption, in opposition to the garnishment of these accounts, all such issues (apart from USAmeriBank's claim for fees) have now been resolved by the Court.

         Six of the accounts (-0056, -3695, -0129, -0302, -0020, and -7939) held pursuant to the Writ were previously addressed in the Report and Recommendation entered on March 17, 2016 (Doc. 711) and adopted by the district judge on April 8, 2016 (Doc. 719). Therein, the Court granted Travelers' motion for summary judgment in part and determined that these six accounts were not exempt from garnishment.[4]

         With regard to the seventh account, the nominal IRA account, such was addressed in the Report and Recommendation entered on August 26, 2017 (Doc. 865) and adopted by the district judge on September 21, 2017 (Doc. 872). By that Order, the Court ruled that the USAmeriBank account ending in -1122 is not exempt from garnishment.[5]

         Furthermore, the matter of priority to the USAmeriBank accounts was addressed in the proceedings supplementary associated with this case. In those proceedings, the Court ruled that the purported assignment of Regions' priority lien position to the USAmeriBank garnished funds to FTBB, LLC, is voided; that FTBB, LLC, is prohibited from asserting a priority lien position to these funds in any pending collection action, including this case and the Regions case (Case No 8:09-cv-1841); and that Travelers, as against FTBB, be granted a superior lien position to the USAmeriBank funds. (Docs. 828, 831). FTBB appealed the ruling, but such was affirmed by the Eleventh Circuit. (Docs. 837, 873).

         Given the above and upon review of the pleadings and papers filed in this action, the Court finds that Travelers has satisfied the procedural and notice requirements of the Florida Statutes. The various claims of exemption and ownership, as well as FTBB's claim of priority, have been resolved by the Court in Travelers' favor, and there remains no impediment to entry of judgment as to the USAmeriBank accounts.[6] As such, the undersigned finds that final judgment in garnishment is now appropriate on all seven of the accounts subject to the Writ.

         Accordingly, I RECOMMEND that:

         (1) Travelers Casualty & Surety Company of America's Motion for Final Judgment in Garnishment as to the IRA Account (Doc. 874), as orally amended at ...


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