BellSOUTH ADVERTISING & PUBLISHING CORP., Petitioner, v. SECURITY BANK, N.A., Respondent, 698 So. 2d 254

PER CURIAM. We have for review Security Bank, N.A. v. BellSouth Advertising & Publishing Corp., 679 So.2d 795 (Fla. 3d DCA 1996), based upon express and direct conflict with the opinions in International Travel Card, Inc. v. R.C. Hasler, Inc., 411 So.2d 215 (Fla. 1st DCA 1982), Sentry Indemnity Co. v. Hendricks Enterprises, 371 So.2d 1105 (Fla. 4th DCA 1979), and Hauser v. Dr. Chatelier’s Plant Food Co., 350 So.2d 548 (Fla. 2d DCA 1977). We have jurisdiction pursuant to

article V,

section 3(b)(3) of the Florida Constitution. BellSouth Advertising & Publishing Corporation obtained a judgment against Garfield & Associates for $36,576. Garfield was a customer of Security Bank. BellSouth served Security Bank with a writ of garnishment, seeking any of Garfield’s funds that the bank was holding. BellSouth obtained a default judgment against Security Bank after the bank failed to answer the writ of garnishment.

Without further notice to Security Bank, the trial court entered an ex parte final judgment in favor of BellSouth for $36,-576 (the same amount as BellSouth’s underlying judgment against Garfield). The trial court conducted no hearing as to damages. Several days after the judgment was filed, Security Bank filed a motion to set aside the final judgment against it on the grounds that its failure to timely answer was based on excusable neglect and that it held only $374.21 belonging to Garfield. The trial court denied the motion to set aside the final judgment.

Security Bank appealed to the Third District Court of Appeal. On appeal, the district court affirmed in part and reversed in part. The district court affirmed the trial court’s refusal to set aside the default on liability because the facts constituting excusable neglect were only set forth in an unsworn motion and were unsupported by affidavit or other proof. Security Bank, 679 So.2d at 798. However, the district court determined that Security Bank’s motion should have been granted insofar as it sought to set aside the final judgment on damages.

The district court concluded that the writ of garnishment sought to recover an unliquidated sum from Security Bank in that it sought to obtain whatever money Garfield had on deposit with the Bank. Id. The district court found that

section 77.06(1), Florida Statutes (1995), only allowed Bell-South to satisfy its judgment against debtor Garfield by garnishing any of Garfield’s money or property held by the garnishee bank. Thus, the district court concluded that final judgment could not be entered against the garnishee bank after default without notice of trial on damages. Id. at 799-800. Bell-South had argued that on default

section 77.081(2), Florida Statutes (1995), creates a penalty so that the garnishee becomes liable for the full amount of a plaintiffs underlying judgment against the original defendant. Id. at 800-01. However, the district court found

section 77.081(2) only applicable to prejudgment garnishment and further concluded that when this

section is read in pari materia with the rest of the garnishment statute, it was clear that Security Bank’s liability in default could not exceed the amount prescribed in

section 77.06(1). Id. at 801. Judge Jorgenson dissented from the majority’s decision regarding damages because he found the amount of damages to be “fully liquidated” based upon the fact that the writ of garnishment included a clear statement of the amount of the judgment against Garfield. Id. at 804-05 (Jorgenson, J., dissenting). This Court accepted review on the basis of conflict with International Travel Card, Sentry Indemnity, and Hauser on the issue of whether

section 77.081(2) applies to a postjudgment writ of garnishment. In the instant case, the district court specifically held that the statute applies only to a prejudgment writ of garnishment. In contrast, the conflict cases apply the statute to post-judgment garnishment without further discussion. We agree with the district court’s

interpretation of the garnishment statute. Because the majority opinion below includes a well-reasoned and exhaustive discussion of this issue, we adopt its reasoning as our own. We further agree with the district court that the final judgment against the Bank should have been vacated as to damages. Bell-South’s garnishment claim against Security Bank was for an unliquidated sum. Thus, BellSouth was required to give notice of trial on damages and to adduce proof of the amount of Garfield’s money held by Security Bank. Accordingly, we find that

section 77.081(2) applies only to a prejudgment writ of garnishment and that a writ of garnishment under

chapter 77 asserts a claim for an unliq-uidated sum. We disapprove the opinions in the conflict cases to the extent that they hold otherwise. We approve the decision below. It is so ordered. KOGAN, C.J., and OVERTON, GRIMES, WELLS and ANSTEAD, JJ., concur. HARDING, J., dissents with an opinion, in which SHAW, J., concurs. .

Section 77.06, Florida Statutes (1995), specifies the effect of a writ of garnishment. The statute provides in pertinent part:

(1) Service of the writ shall make garnishee liable for all debts due by him or her to defendant and for any tangible or intangible personal property of defendant in the garnishee’s possession or control at the time of the service of the writ or at any time between the service and the time of the garnishee’s answer. .

Section 77.081, Florida Statutes (1995), provides:

(1) If the garnishee fails to answer as required, a default shall be entered against him or her.

(2) On the entry of judgment for plaintiff, a final judgment shall be entered against the garnishee for the amount of plaintiff's claim with interests and costs. No final judgment against a garnishee shall be entered before the entiy of, or in excess of, the final judgment against the original defendant with interest and costs. If the claim of the plaintiff is dismissed or judgment is entered against the plaintiff the default against garnishee shall be vacated and judgment for garnishee's costs entered. . We do not address the other issue raised by BellSouth.