Harborside Suites v. Rosen

Third District Court of Appeal State of Florida

Opinion filed November 21, 2018. Not final until disposition of timely filed motion for rehearing.

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No. 3D18-293 Lower Tribunal No. 12-41555 ________________

Harborside Suites, LLC, Appellant,

vs.

Michael Rosen, et al., Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Rodney Smith, Judge.

The Lehman Law Firm, PLLC, and Gary E. Lehman; Nelson Mullins Broad and Cassel, Beverly A. Pohl and Barbara Viota-Sawisch (Fort Lauderdale), for appellant.

Gunster, Angel A. Cortiñas and Jonathan H. Kaskel; Akerman LLP, Michael B. Chavies and Naim S. Surgeon, for appellees.

Before SUAREZ, LAGOA and FERNANDEZ, JJ.

PER CURIAM.

Harborside Suites, LLC, appeals the trial court order dissolving writs of garnishment after the trial court’s non-evidentiary hearing on the allegation of appellee debtor, Michael Rosen, as well as that of third parties, claiming that the garnished funds belong to someone other than the debtor. We reverse and remand for trial, on the authority of Merriman Investments, LLC v. Ujowundu, 123 So. 3d 1191, 1193 (Fla. 3d DCA 2013):

Once issued, the trial court may consider a request to dissolve the writ under certain circumstances. Depending on the circumstance, the request to dissolve may be made in either of two ways: (1) on motion of the debtor challenging the truth of the allegations in the creditor's petition for the writ, see § 77.07, Fla. Stat. (2001); or (2) on an affidavit of a third party claiming the garnished property belongs to the third party and not the debtor. See § 77.16, Fla. Stat. (2001). Either method requires a trial of the issues. §§ 77.07, 77.16.

Reversed and remanded for further proceedings.