JAMES J. GIBSON and LORI G. GIBSON, Appellants,
WELLS FARGO BANK, N.A., as successor by merger to Wachovia Bank, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Robert A.
Foster, Jr., Judge.
Jennifer E. Jones of McIntyre Thanasides Bringgold Elliott
Grimaldi & Guito, P.A., Tampa; and Shyamie Dixit and
Robert L. Vessel of the Dixit Law Firm, P.A., Tampa, for
Appellant Lori Gibson.
Winarksy of Marcadis Singer, P.A., Tampa, for Appellant James
Owen of Adams and Reese, LLP, Sarasota, for Appellee.
LaROSE, Chief Judge.
Lori and James Gibson appeal the final summary judgment
entered in favor of judgment creditor, Wells Fargo Bank, N.A,
in proceedings supplementary. We have jurisdiction.
See Fla. R. App. P. 9.030(b)(1)(A). We must
determine whether, under Florida law, a creditor may satisfy
a debt incurred by one spouse by garnishing a federal tax
refund issued in both spouses' names and deposited in
their joint checking account. Florida law compels us to
conclude that the joint tax refund is tenancy by the entirety
(TBE) property not subject to garnishment. Thus, we reverse.
December 2009, Wachovia Bank sued Mr. Gibson for breach of a
promissory note that he, alone, executed in March 2008. The
parties stipulated to the entry of a final judgment in favor
of Wachovia for over one million dollars.
entry of final judgment, the Gibsons filed amended joint
federal tax returns for tax years 2003 through 2006, seeking
retroactive reduction in their tax burden. See
American Recovery and Reinvestment Act of 2009, Pub. L. No.
111-5, at § 1211, 123 Stat. 115 (2009) (amending section
172(b)(1)(H) of the Internal Revenue Code to extend the
carryback period to up to five years for 2008 net operating
losses incurred by an eligible small business). Based upon
these returns, the Internal Revenue Service issued two tax
refund checks; one in June 2011 and the other in April 2014.
Each check was payable to both Mr. Gibson and his wife, Dr.
Gibson. The refund checks totaled over two million dollars.
The Gibsons deposited both checks into their joint account at
SunTrust Bank. The parties agree that the Gibsons held the
SunTrust account as TBE property.
October 2014, Wells Fargo Bank, as successor by merger to
Wachovia, moved to garnish the SunTrust account. Wells Fargo
sought proceedings supplementary under section 56.29, Florida
Statutes (2014), and moved to implead Dr. Gibson as a party.
Wells Fargo alleged that it could execute on the federal tax
refunds in the account to satisfy Mr. Gibson's
trial court granted Wells Fargo's motions for proceedings
supplementary and impleader. Thereafter, Wells Fargo moved
for summary judgment. The Gibsons opposed the motion and
filed their own summary judgment motion, arguing that they
held the joint federal tax refunds as TBE. They also
maintained that the refunds related to tax years prior to
execution of the 2008 promissory note.
trial court granted Wells Fargo's motion and denied the
Gibsons' motion. The trial court found that the refunds
"were attributable solely to [Mr. Gibson]'s economic
activities." Further, the trial court was persuaded by
Wells Fargo's argument that, because the IRS has the
ability to apportion tax refunds to each individual spouse,
issuance of the joint tax refund checks did not establish TBE
property. The trial court entered a final summary judgment
providing that Wells Fargo could recover from Dr. and Mr.
Gibson "jointly and severally and as tenants by the
entireties, the sum of $1, 310, 491.78" from the
appeal, the Gibsons argue that the joint tax refunds, issued
in both of their names and deposited in their joint bank
account, are TBE property. Therefore, Wells Fargo, a creditor
to only Mr. Gibson, cannot reach those funds to satisfy his
individual debt. Although they acknowledge that the IRS has
statutory authority to attach TBE property in certain
circumstances, the Gibsons contend that third-party