DIANE BENDER v. JACK SHATZ

D
           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                   FOURTH DISTRICT

                                  DIANE BENDER,
                                     Appellant,

                                           v.

JACK SHATZ, an individual, LANCASTER AUTO PARTS, INC., an Ohio
 corporation, DOUGLAS A. BENDER, individually, OPTIMAX, INC., a
 Florida corporation, OPTIMAX SERVICE CORPRORATION, a Florida
     corporation, PRIVATE EQUITY REALTY, LLC., and BANK OF
                          AMERICA, N.A.,
                            Appellees.

                                   No. 4D19-3013

                                   [July 15, 2020]

   Appeal of non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Cymonie S. Rowe, Judge; L.T. Case
No. 2013-CA-013330.

   Elliot B. Kula, W. Aaron Daniel, and William D. Mueller of Kula &
Associates, P.A., Miami, for appellant.

   Kathryn L. Ender and David M. Hawthorne of Lewis Brisbois Bisgaard
& Smith, LLP, Coral Gables, for appellees, Jack Shatz, an individual, and
Lancaster Auto Parts, Inc., an Ohio corporation.

GROSS, J.

   Diane Bender appeals an order that denied in part her motion to quash
a writ of garnishment after an evidentiary hearing. 1 The order allows
appellees, Jack Shatz and Lancaster Auto Parts, Inc., judgment creditors
of Bender’s husband, to seize certain of the contents of a safe deposit box.
We write to address Bender’s argument on appeal that the trial court
applied an incorrect burden of proof in ruling after an evidentiary hearing
on her motion to dissolve the writ. This argument is precluded by the
invited error doctrine, so we affirm the order of the circuit court.



1   We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii).
   In October 2018, the trial court entered final judgment for $497,800
against Diane’s husband, Douglas Bender, in favor of Jack Shatz and
Lancaster (“the judgment creditors”). The judgment creditors filed an ex
parte motion for writ of garnishment to issue against Bank of America;
referring to a particular branch, the motion alleged a reason to believe that
the bank was “indebted to the Judgment Debtor, Douglas A. Bender or has
in its possession, custody, or control goods, monies, chattels, or effects
belonging to him.”

   The bank’s answer to the writ noted minimal sums in two bank
accounts and also disclosed the existence of a safe deposit box. The bank
advised that the names on the box were Diane Bender, Douglas Bender,
and the Benders’ son and indicated that it was restricting access to the
box, pending further order of the court.

    As intervenor, Diane Bender answered and moved to dissolve the writ
of garnishment. Diane stated that she has been married to Douglas for
more than 25 years and that she alone owns the box and its contents. She
said that she placed Douglas’s name on the box in case she passed away.
To support her representations, she attached her own affidavit and an
affidavit from Douglas to the motion.

   The judgment creditors denied Diane’s allegations and requested an
inspection of the box’s contents. The circuit court directed an independent
inventory of the box and ordered Diane to produce copies of any
documents to prove ownership of the items in the box.

   The inventory detailed 14 categories of items including documents
(such as family passports, family birth certificates, and a warranty deed),
coins, currency, and jewelry. The box contained 66 Krugerrands, 25
yellow metal coins stamped “Deutsche 20 Mark,” a note from 1979 stating
“50 gold coins,” and three $100.00 U.S. Currency Bills. The coins and
currency are at issue in this appeal.

    Diane produced a copy of the safe deposit box rental agreement.
Diane’s name appears on the agreement as “Filing Name” and as “Account
Title.” Douglas and the couple’s son also signed the agreement. The
agreement designates all three of them as “Renter(s).” Diane furnished the
box’s access and entry history from 2006 to the present, which showed
that Douglas had never accessed the box.

   The circuit court held an evidentiary hearing during which Diane, her
brother, and her husband testified.


                                    -2-
   Diane testified that she rented the box in 2014 and added her husband
and son in 2016 as persons permitted access in case something happened
to her. Diane furnished records to show that the two never accessed the
box. Diane stated that all contents including all coins belonged to her.
She described how she and her siblings split up the coins and jewelry four
ways after her parents’ deaths. There was no testimony about the
currency.

   On cross-examination, Diane conceded that some of the documentary
items, like passports, belonged to her husband and children. The attorney
contrasted this concession with an earlier statement in an affidavit where
Diane had alleged that “all the contents” of the box were “exclusively hers.”
She explained that she gathered and placed the documents in the box that
were important to her.

   Diane’s brother described how he and his siblings divided his parents’
jewelry and gold coins. He testified that Diane received about 100 coins
from her father. Significantly, this testimony contrasted with a statement
in his earlier-filed affidavit that Diane had received about “30 gold coins –
mostly Krugerrands.” The brother did not know if the coins in the box
were the same ones that Diane received from her father.

    The judgment creditors called Douglas as a witness. Douglas was
questioned about the fact that many assets, such as a Toyota Camry, were
titled in his wife’s name to keep him judgment proof.

   By a corrected order on the motion to quash, the circuit court divided
the disputed property. The court focused on the conflict between the
brother’s hearing testimony and his earlier affidavit to conclude that Diane
inherited only 30 gold Krugerrands from her father. The court ruled that
the remaining gold coins in the box and $300 cash would go to the
judgment creditors towards satisfying their judgment.

   Diane contends that the circuit court mistakenly placed the burden of
proof on her to establish her exclusive ownership of the coins and cash.
However, on appeal Diane cannot attack the trial court’s allocation of the
burden of proof because she invited any error. The hearing began with
Diane’s attorney acknowledging that Diane bore the burden to prove that
she was the owner of the disputed property:

      If I may proceed, Your Honor, I believe that we have the
      burden of proving that, by a preponderance of evidence, that
      Mrs. Bender owns the contents of the box, so I think it would
      be appropriate for me to proceed first.

                                    -3-
    Under the invited error doctrine, a party may not make or invite error
at trial and then take advantage of that error on appeal. Franklin v. State,

275 So. 3d 192

, 195 (Fla. 4th DCA 2019). “This doctrine holds true
whether the error was invited solely by appellant’s counsel being unaware
of the governing law, or jointly by appellant and his opponent.” Alexander
v. Quail Pointe II Condo., 

170 So. 3d 817

, 822 (Fla. 5th DCA 2015) (citations
omitted). “The fault should not be laid upon the trial judge; rather, it must
be placed upon [the attorneys] who led the court into error.”

Id. (quoting Keller

Indus., Inc. v. Morgart, 

412 So. 2d 950

, 951 (Fla. 5th DCA 1982)).

    Diane argues that “[t]here is not a single shred of evidence that [Douglas
Bender] owned any of the safety deposit box contents.” However, within
the procedural framework of the proceeding where she agreed that she had
the burden of proof to establish her ownership of the coins, her evidence
fell short. In a non-jury proceeding, the trial court has the “superior
vantage point in assessing the credibility of witnesses.” See Porter v. State,

788 So. 2d 917

, 923 (Fla. 2001). The trial judge expressly placed great
weight on the conflict between the brother’s in-court testimony (Diane
received about 100 gold coins from her father) and his prior affidavit (Diane
received about 30 gold coins from her father). The trial judge was entitled
to resolve this conflict by rejecting the testimony of Diane and her brother
regarding her ownership of more than 30 gold coins in the safe deposit
box; the trial judge was not required to accept Diane’s version of
ownership. See Langel v. State, 

255 So. 3d 359

, 363 n.3 (Fla. 4th DCA
2018). The trial judge concluded that Diane failed to meet the burden of
proof to which the parties agreed.

   Although Diane focuses in her briefing on the language of the bank’s
rental agreement, that agreement characterizes all three Benders who
signed the agreement as “renters.” The box was controlled by each of
them, each had access to the box at all times, and each could place
property into the box and remove it without the others’ permission. The
form of ownership of the box’s contents was not set forth in the rental
agreement. By relying on the rental agreement, the judgment creditors
established that the three “renters” had some type of tenancy interest in
the contents of the box, sufficient to require the tenant claiming an
exclusive interest in property to prove it by the greater weight of the
evidence. See New York Cmty. Bank v. Bank of Am., N.A., 

93 N.Y.S.3d 7

(App. Div. 2019), leave to appeal denied, 

127 N.E.3d 318

(N.Y. 2019). As
she agreed at trial, the burden of proof was on Diane to establish her sole
ownership of the disputed property.

   Affirmed.

                                     -4-
KUNTZ, J., concurs.
WARNER, J., concurs specially with opinion.

WARNER J., concurring specially.

    I concur in the majority opinion and write separately to note that when
“any other person” claims an interest in garnished property pursuant to
section 77.07(2), Florida Statutes (2019), the burden of proof is on that
person to establish an ownership interest in the property that renders it
not subject to garnishment. Thus, even without the concession of Diane’s
trial attorney, Diane had the initial burden of proof to show that she was
the exclusive owner of the disputed coins, as the person seeking
dissolution of the writ of garnishment.

   To determine the proper burden of proof in a contested garnishment
proceeding, it is necessary to grasp the mechanics of a Chapter 77
proceeding.

   The judgment creditors obtained the writ of garnishment under section
77.03, Florida Statutes (2019), which allows for the issuance of a writ of
garnishment after judgment when the plaintiff/judgment 2 creditor files “a
motion (which shall not be verified or negative defendant’s exemptions)
stating the amount of the judgment.” Under the statute, the motion for
writ of garnishment requires two things—a judgment against an identified
defendant and the amount of the judgment. The statute recognizes that it
is not the burden of the plaintiff/judgment creditor to negative any
“exemptions,” matters of which a defendant would be aware.

    As it applies to the property at issue in this case, section 77.04 requires
the garnishee to serve “an answer on the plaintiff” stating whether the
garnishee had in its possession “tangible or intangible personal property
of [the] defendant” during the times specified in the writ. The garnishee
bank’s answer placed the contents of the safe deposit box in issue for the
garnishment.


2 Because the sections of the garnishment statute have been amended at different
times, Chapter 77 is not a model of statutory draftsmanship. Section 77.07 uses
“petitioner” and “plaintiff” interchangeably to refer to the person seeking to
garnish something. Also, Chapter 77 uses the terms “plaintiff” and “defendant”
to refer to the parties in the underlying case that generated the final judgment
which the plaintiff/petitioner/garnishor is trying to collect. See § 77.03, Fla.
Stat. (2019) (using the terms “plaintiff” and “defendant” to describe when a
garnishment writ may be issued after judgment).


                                      -5-
    Diane, as “any other person having an ownership interest in the
property” in the box, moved to dissolve the writ of garnishment under
section 77.07(2). Diane’s motion to dissolve asserted that she was the sole
owner of all the coins. The motion to dissolve did not contend that an
“allegation in [the judgment creditors’] motion for writ [of garnishment was]
untrue.”

Id. She did

not challenge the allegations of the judgment
creditors’ motion for the writ—that there was a judgment against Bender’s
husband in a certain amount.

   Section 77.16 expressly applies to “[c]laims by third persons to
garnished property,” which is the claim raised by Diane in her motion:

      (1) If any person other than the defendant claims that . . . the
      property in the hands or possession of any garnishee is that
      person’s property and shall make an affidavit to the effect, the
      court shall impanel a jury to determine the right of property
      between the claimant and plaintiff unless a jury is waived.

      (2) If the verdict is against the claimant, plaintiff shall recover
      costs. If the verdict is in favor of the claimant, the claimant
      shall recover costs against plaintiff.

Section 77.16 thus frames the proceeding as one between the third party
“claimant” and the plaintiff. In legal proceedings, the burden of proof is
typically placed on plaintiffs, claimants, and other parties “moving for
relief.” Bernstein v. Bernstein, 

498 So. 2d 1270

, 1271 (Fla. 4th DCA 1986)
(en banc). The burden of proof is also placed on a person seeking to assert
an affirmative defense. Touchberry v. Nemec, 

264 So. 2d 466

, 467 (Fla.
4th DCA 1972). Similarly, the burden of proving a Chapter 222, Florida
Statutes exemption from garnishment is on the person claiming the
exemption. Cadle Co. v. G & G Assocs., 

757 So. 2d 1278

, 1279 (Fla. 4th
DCA 2000). As a section 77.16 “claimant” to the disputed property, Diane
bore the burden of establishing her claim by the greater weight of the
evidence. Nothing in Chapter 77 expressly overrides this typical state of
affairs.

   Branch Banking & Trust Co. v. Ark Development/Oceanview, LLC, 

150 So. 3d 817

(Fla. 4th DCA 2014), does not compel a different result. In
Branch, a bank had garnished the accounts of a judgment debtor. The
debtor’s wife claimed that one of the bank accounts was her property and
not that of her judgment debtor husband. On a motion for summary
judgment, she proved her ownership of the account. The bank then
claimed that, even if the wife owned the account, the monies in the account

                                     -6-
may have been the result of a fraudulent transfer by the husband. Our
observation concerning a garnishor’s burden of proof was in the context of
a garnishor claiming that funds had been fraudulently transferred to the
third party’s bank account. We wrote that “[a]lthough it has been held
that a garnishor may use garnishment to obtain funds fraudulently
transferred to a third party, it is the garnishor’s burden to prove that the
property garnished was the property of the debtor.” 3

Id. at 820.

Because
the garnishor was the claimant on a fraudulent transfer claim, it bore the
burden of proof. Here, by contrast, Diane bore the burden of proof as a
third party claimant to garnished property.


                              *         *         *

    Not final until disposition of timely filed motion for rehearing.




3 We took the latter portion of this quote out of context in Stanbro v. McCormick,
105, LLC, 

213 So. 3d 925

, 927 (Fla. 4th DCA 2017). In Stanbro, this court
suggested that the garnishor bore the burden of proof in a case that did not
involve allegations of fraudulent conduct, stating: “When the account contains
more than one name and a third party named on the account claims ownership
of the account’s funds, the garnishor must prove that the garnished funds belong
exclusively to the debtor.”

Id. Nonetheless, the

third party seeking to dissolve
the writ of garnishment carried the burden of proving his ownership of the
garnished funds. This court found that the garnishor failed to rebut the owner’s
evidence “establishing that the account, and the monies in it, belonged
exclusively to the owner, not the debtor, and therefore was not subject to
garnishment.”

Id. Thus, the

initial burden of proof appears to have been placed
upon the third party claiming ownership and not the garnishor.

                                       -7-

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