Present: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and
Powell, JJ., and Lacy, S.J.

PS BUSINESS PARKS, L.P.
                                            OPINION BY
v.   Record No. 131282              JUSTICE LEROY F. MILLETTE, JR.
                                           APRIL 17, 2014
DEUTSCH & GILDEN, INC., ET AL.


            FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Robert J. Smith, Judge

     In this appeal we consider two issues related to the

garnishment of bank accounts.    First, we consider whether a

judgment creditor is entitled to funds held in an account not

titled to the judgment debtor when that account is a master

account participating in a "treasury management service" which,

in a "zero balance account arrangement," draws money each day

from the judgment debtor's account into the master account at

issue, and moves funds from that master account to the judgment

debtor's account on an as-needed basis to accomplish desired

transactions.   Second, we determine whether the circuit court

erred in not considering evidence of funds in the judgment

debtor's account during the period of time between service on

the garnishee of the garnishment summons and its return date.

                    I.    Facts and Proceedings

     PS Business Parks, LP, ("PS Business") rented a storefront

to Family Furniture Centers, Inc.   Deutsch & Gilden, Inc.

("Deutsch") guaranteed the lease.   When Family Furniture
Centers, Inc. and Deutsch stopped paying the lease, PS Business

obtained a judgment against the companies in the amount of

$664,923.34 plus interest and attorneys' fees.

     PS Business, naming Deutsch as debtor, filed a garnishment

summons naming SunTrust Bank as garnishee against "some other

debt due or property of the judgment debtor, specifically all

accounts, including account ending 61663."      The garnishment was

served on SunTrust on March 5, 2013, and the return date on the

garnishment summons was April 12, 2013.      SunTrust, in response

to the garnishment summons, filed two separate checks with the

Circuit Court of Fairfax County.       SunTrust filed the first check

on April 10, 2013.   The check was in the amount of $15,050.11,

and was drawn from an account ending in 95497, which was titled

to Deutsch.   On April 12, 2013, SunTrust filed a check in the

amount of $133,656.69, drawn from an account ending in 61663,

which was titled to G&D Furniture Holdings, Inc. ("G&D").

     G&D filed a motion to quash the garnishment of G&D account

61663, arguing that the account was in its name, that it is a

separate and distinct entity from Deutsch, and that it is not a

party to the underlying action.    G&D also submitted to the court

a letter from SunTrust which indicated that G&D account 61663

belonged solely to G&D, and that Deutsch had two other separate

accounts, one ending in 95497 and the other ending in 13869.      In

response to G&D's motion to quash, PS Business opposed that


                                   2
motion and filed a cross-motion for further proceedings to

ascertain the funds held by SunTrust in G&D account 61663 and

the accounts titled in Deutsch's name.   SunTrust subsequently

filed an amended answer stating that the amount submitted to the

court from account 61663 was erroneous and asserted that once

the correct figure was determined its answer would be amended

again.

     At a hearing on the motion to quash, which was joined with

PS Business's cross-motion for further proceedings, Andrew

Dolson, vice president and assistant general counsel for

SunTrust, testified on behalf of PS Business and confirmed that

G&D is the title holder of the 61663 account.   Dolson testified

that the 61663 account was the "master account" in a "treasury

management service" with a "zero balance account arrangement"

with several associated subsidiary accounts, two of which were

held by Deutsch.   He further stated that as a part of the

"treasury management service," the balance in the subsidiary

accounts was drawn into the master account on a daily basis "to

put the cash to some good[,] effective use."    According to

Dolson, "funds are brought back out of the master to the

subsidiary accounts, . . . to answer for needs; to pay checks

that are presented on that subsidiary account, to honor

automated clearing house debits, to perform wire transfers,




                                 3
[and] other sorts of desired transactions in the subsidiary

accounts."

     On cross-examination, Dolson indicated that he had no

knowledge of any contractual arrangements between G&D and

Deutsch.   Dolson then explained that while the bank typically

severs all ties between master and subsidiary accounts when it

is served with a garnishment summons, SunTrust had not done so

to all of the accounts in the present case.   As a result, Dolson

testified, the garnishment caused "the subsidiary accounts to be

overdrawn or to have negative posted balances which caused funds

to flow into them from the master [account]."   Dolson indicated

that he could not "represent that the bank's been able to make

proper sense of [the account statements during the garnishment

period, and] there are echoes and echoes upon echoes that

happened of transactions."   He explained, "transactions piled on

transactions and resulted in . . . what the bank believes are

not just faulty balance amounts or unreliable ones, but

preposterously oversized amounts."

     During the hearing, PS Business entered into evidence

account statements for Deutsch account 95497 and a document

showing the balance in G&D account 61663 on the April 2013 date

when SunTrust filed its answer.   The March 2013 bank statement

for Deutsch account 95497 lists deposits in excess of $1.3

million, and withdrawals in excess of $1.2 million.   The April


                                  4
2013 bank statement for Deutsch account 95497 lists deposits in

excess of $1.4 million, and withdrawals in excess of $1.5

million.    A majority, but not all, of the deposits into Deutsch

account 95497 in both monthly statements are listed as "zero

balance credit[s] from [G&D] acct . . . 61663," and a majority,

but not all, of the withdrawals from Deutsch account 95497 are

listed as "paid item[s]" to G&D account 61663.

     At the conclusion of the hearing on the motion to quash,

the circuit court granted G&D's motion to quash the garnishment

of G&D account 61663.     The court ordered payment to PS Business

of $15,050.11, the amount from Deutsch account 95497 which was

unchallenged.   The court further ordered that the balance of the

funds withheld by SunTrust and submitted to the court, "be

returned as if the garnishment had not been filed."    We granted

PS Business this appeal.

                            II.   Discussion

A.   Standard of Review

     Whether a judgment debtor is entitled to funds in a bank

account during a garnishment period is a mixed question of law

and fact.   See Smyth County Comm. Hosp. v. Town of Marion, 259

Va. 328, 336, 527 S.E.2d 401, 405 (2000) (indicating that the

application of a statutory requirement "is a mixed question of

fact and law and we are not bound by the trial court's

determination in this regard").     Therefore, while "'[w]e give


                                    5
deference to the trial court's factual findings and view the

facts in the light most favorable to the prevailing part[y,]'

. . . we review the trial court's application of the law to

those facts de novo."   Tuttle v. Webb, 284 Va. 319, 324, 731

S.E.2d 909, 911 (2012) (quoting Caplan v. Bogard, 264 Va. 219,

225, 563 S.E.2d 719, 722 (2002)).

B.   Garnishment of G&D Account 61663

     PS Business argues that it is entitled to funds held in G&D

account 61663 because Deutsch, the judgment debtor, has an

interest in the account.   PS Business contends that Deutsch's

interest is a "liability" subject to garnishment under the terms

of Code § 8.01-511.   We disagree.

     Under Code § 8.01-511, "a judgment creditor can institute

garnishment proceedings if 'there is liability' on a third

person to the judgment debtor."       Network Solutions, Inc. v.

Umbro Int'l, Inc., 259 Va. 759, 768, 529 S.E.2d 80, 85 (2000).

We have held that "'[l]iability' in this context means a 'legal

obligation', 'enforceable by civil remedy,' 'a financial or

pecuniary obligation,' or a 'debt.'"       Id.   Thus, because

garnishment proceedings are "substantially . . . action[s] at

law by the judgment debtor in the name of the judgment creditor

against the garnishee, . . . the judgment creditor stands upon

no higher ground than the judgment debtor and can acquire no




                                  6
greater right than such debtor . . . possesses."    Id. (quoting

Lynch v. Johnson, 196 Va. 516, 521, 84 S.E.2d 419, 422 (1954)).

      The relationship between a general depositor and the bank

in which its deposit is made is simply that of creditor and

debtor.   The monies deposited become the property of the bank

and the bank becomes a debtor to that depositor.     Bernardini v.

Central Nat'l Bank, 223 Va. 519, 521, 290 S.E.2d 863, 864

(1982).   Deutsch is not the title owner of account 61663, G&D

is.   As the account is not in Deutsch's name, SunTrust does not

stand in a relationship of debtor to Deutsch as to any funds in

account 61663.    In the absence of evidence regarding the

contractual relationship between the Deutsch and G&D accounts,

the periodic transfer of funds between those accounts does not

establish a debtor relationship between SunTrust and Deutsch to

the funds in G&D account 61663 that would subject those funds to

a claim by a creditor with a judgment against Deutsch.      As we

have said,

             the judgment creditor[, PS Business,] stands
             upon no higher ground than the judgment
             debtor[, Deutsch,] and can acquire no
             greater right than such debtor himself
             possesses. In such a proceeding the claim
             of the judgment debtor[, Deutsch,] against
             the garnishee[, SunTrust,] must be certain
             and absolute, because our statutes do not
             authorize a court of law, in a mere side
             issue growing out of a garnishment
             proceeding, to exercise the intricate and
             complicated duties of a chancellor.



                                   7
Lynch, 196 Va. at 521, 84 S.E.2d at 422.    Consequently, PS

Business, standing on no higher ground than Deutsch, the

judgment debtor, has no right to possession of the funds in G&D

account 61663, and cannot subject those funds to garnishment.

The circuit court did not err in ordering the return to G&D of

$133,656.69 drawn from account 61663.

C.   Garnishment of Deutsch Account 95497

     PS Business argues that the total sum of deposits made to

Deutsch account 95497 during the garnishment period are subject

to the garnishment summons.   PS Business contends that the

circuit court erred in not entering an order of payment in favor

of PS Business in the amount of $726,049.43, the entire amount

of its judgment, because more than $1.2 million in deposits

primarily, but not exclusively, from G&D account 61663 were made

into Deutsch account 95497 during the garnishment period.

     We agree with PS Business that the circuit court erred in

ordering payment of only $15,050.11 from Deutsch account 95497,

the amount remaining in that account on the date that SunTrust

answered the garnishment summons.

     Code § 8.01-501 provides, in relevant part,

          Every writ of fieri facias shall, . . . be a
          lien from the time it is delivered to a
          sheriff or other officer, or any person
          authorized to serve process pursuant to
          § 8.01-293, to be executed, on all the
          personal estate of or to which the debtor
          is, or may afterwards and on or before the


                                 8
          return day of such writ or before the return
          day of any wage garnishment to enforce the
          same, become, possessed or entitled, in
          which, from its nature is not capable of
          being levied on under such sections.

(Emphasis added.)    Thus, a lien is created on the property held

by a third party debtor on the date the writ of fieri facias is

delivered to the officer or authorized individual.    In re Lamm,

47 B.R. 364, 368 (E.D. Va. 1984).

     However, the lien is not enforceable against a third party

indebted to the judgment debtor until a garnishment summons is

issued and served on the third party "garnishee."    Under Code

§ 8.01-511, the garnishment summons must "direct the garnishee

to withhold from the judgment debtor any sums of money to which

the judgment debtor 'is or may be entitled' during the period

between the date of service of the summons and the date of the

garnishee's appearance in court to answer the summons."

Virginia Nat'l Bank v. Blofeld, 234 Va. 395, 400, 362 S.E.2d

692, 695 (1987).     Thus, upon service of the summons on the

garnishee, the "debts already due to the judgment debtor when

the summons in garnishment is served upon the garnishee [and]

any indebtedness of the garnishee to the judgment debtor which

arises between the date of service of such summons on the

garnishee and the return date of the summons" is subject to

garnishment.   Id.




                                   9
     As a bank is a third party debtor to its account holders,

any money that an individual or corporation deposits into an

account held by the bank, unless otherwise specified, becomes

the property of the bank and the bank is indebted to the holder

of the account for the amount of the deposit until it is

withdrawn.     Bernardini, 223 Va. at 521, 290 S.E.2d at 864

(holding that the sum of any deposits made to the judgment

debtor's account "immediately become[s] property of the bank,

and the latter becomes [a] debtor of the depositor.").

Therefore, a bank may be a third party debtor subject to

garnishment of the funds in its possession that are owed to the

judgment debtor.

     In the present case, SunTrust is a bank and third party

debtor because it holds funds to which Deutsch is entitled in

its account 95497.    The lien on the funds within Deutsch account

95497 became enforceable against SunTrust on March 5, 2013, when

service of the garnishment summons was completed.    The return

date on the garnishment summons was April 12, 2013.    Thus, any

funds that reached the account between March 5, 2013 and April

12, 2013, the garnishment period, were funds that Deutsch was

entitled to and, consequently, were funds subject to

garnishment.

     The bank statement for Deutsch account 95497 indicates that

more than $1.2 million in deposits reached that account during


                                  10
the garnishment period.   Moreover, Dolson testified during the

hearing on the motion to quash that "beginning with the service

date . . . and continuing through the closing of the garnishment

window in April, the[] zero balance arrangement ties were left

in place[, thus] causing the subsidiary accounts to be overdrawn

or to have negative posted balances which caused funds to flow

into them from the master."   While the large majority of these

funds flowed from and to G&D account 61663, the bank statements

in evidence also reveal credits from and debits to accounts

other than G&D account 61663 during the garnishment period.

When the sums were credited to Deutsch's account, they became

subject to SunTrust's obligation as debtor to the depositor,

Deutsch, and thus subject to garnishment by Deutsch's judgment

creditors, including PS Business.    Bernardini, 223 Va. at 521,

290 S.E.2d at 864.   Thus, based upon the bank statements for

Deutsch account 95497 and the testimony of Dolson, the amount of

indebtedness of SunTrust to Deutsch during the period of the

garnishment clearly exceeded the $15,050.11 that SunTrust paid

to the court, which SunTrust represented to be the amount

remaining in the account when it answered the garnishment.

Therefore, the circuit court erred in ordering payment to PS

Business of only $15,050.11 from Deutsch account 95497.

     However, the extent to which the deposits exceeded

$15,050.11 is not clear from the record before us because the


                                11
circuit court did not make any factual determination to

ascertain funds held by SunTrust in Deutsch account 95497 during

the garnishment period as requested by PS Business in its cross-

motion.   Absent this requisite inquiry, the record is silent as

to which deposits were funds circulating between G&D account

61663 and Deutsch account 95497 during the garnishment period,

and which deposits contained new funds.

     Code §§ 8.01-519 and 8.01-565 provide the requisite steps

for initiating a challenge to the garnishee's stated liability

to the judgment debtor over the garnishment period in a

garnishment proceeding.   Code § 8.01-519 provides, in relevant

part, "if it be suggested that [the garnishee] has not fully

disclosed his liability, the proceedings shall be according to

§§ 8.01-564 and 8.01-565, mutatis mutandis."   Code § 8.01-565

provides that the plaintiff must raise a challenge to whether

the codefendant, the garnishee, has fully disclosed "the debts

owing by him, or effects in his hands belonging to the principal

defendant in such attachment."   Upon a plaintiff's challenge to

the garnishee's disclosure, "the court, without any formal

pleading, shall inquire as to such debts and effects, or, if

either party demand, it shall cause a jury to be impaneled for

that purpose."   Code § 8.01-565 (emphasis added).

     The record establishes that PS Business made a challenge

before the circuit court to SunTrust's answer to the garnishment


                                 12
summons on Deutsch account 95497 in the amount of $15,050.11.

PS Business stated,

          [Y]ou can see from the statements that are
          in evidence . . . there was more money that
          was drawn down from the 61663 account. In
          fact, 1.2 million during just the March
          portion of the garnishment period, from
          March 5 to April 12. Just during the March
          portion of that, there's 1.2 million drawn
          down from the 61663 account. And so I'd
          submit to the court that is the amount of
          money that Deutsch[] had available to it.
          That is the amount of money that is subject
          to garnishment, and that is the amount of
          money this court should enter an order for
          payment for to enforce the judgment that
          this Court itself has entered.

Once PS Business challenged SunTrust's answer to the garnishment

summons, the circuit court was required by Code § 8.01-565 to

initiate an inquiry into SunTrust's indebtedness to Deutsch over

the garnishment period.   The circuit court failed to do so.   At

the same time that the circuit court denied PS Business's

garnishment against the funds in G&D account 61663 because

Deutsch's name was not on that account, the court summarily

denied any claim by PS Business to funds from the Deutsch

account beyond the unchallenged $15,050.11 based upon "what the

bank has testified to."

     The alleged unreliability of the account statement does not

exempt the account from review, as the plain language of Code

§ 8.01-565 necessitates a detailed inquiry into the "debts and

effects" of the judgment debtor's account during the garnishment


                                13
period, irrespective of the surrounding circumstances.    Because

the circuit court failed to conduct this requisite inquiry into

the total sum of the funds deposited into Deutsch account 95497

during the garnishment period, the record is insufficient for

this Court on appeal to resolve the amount of indebtedness in

excess of $15,050.11 of SunTrust to Deutsch, and therefore PS

Business, during the garnishment period.   When we determine that

a circuit court has erred and that error has been challenged by

the appellant, it is our responsibility to direct the circuit

court to take appropriate action to correct the error in order

to afford the appellant the relief to which it is entitled.

                         III. Conclusion

     For the reasons stated herein, we will reverse and remand

this case to the circuit court to conduct a detailed inquiry

into SunTrust's indebtedness to Deutsch for funds in account

95497 over the garnishment period which would create an

obligation to PS Business through its garnishment summons.

During the course of this inquiry, G&D and SunTrust will have

the opportunity to assert defenses raised below that the funds

belonged to G&D and not Deutsch, and that any funds deposited

were revolving funds, the same funds repeatedly passing between

G&D account 61663 and Deutsch account 95497, or any other

relevant defense to liability for the amount of the judgment




                               14
based upon SunTrust's indebtedness to Deutsch for the sums in

Deutsch account 95497 during the garnishment period.

     We will affirm the circuit court's decision to grant the

motion to quash garnishment of G&D account 61663.

                                                  Affirmed in part,
                                                  reversed in part,
                                                  and remanded.


JUSTICE McCLANAHAN, concurring in part and dissenting in part.

     The majority reverses the circuit court and remands for an

evidentiary hearing that was never requested, based on statutes

(Code §§ 8.01-519 and 8.01-565) that were never argued nor cited

by PS Business below nor on appeal.   I am therefore compelled to

dissent from the majority opinion adjudicating the circuit

court's disposition of account 95497. 1

     We have recognized that "[a] garnishment action

'effectively is a proceeding by the judgment debtor in the name

of the judgment creditor against the garnishee.   The judgment

creditor stands on no higher ground than the judgment debtor and

can have no right greater than the judgment debtor possesses.'"

Raley v. Haider, 286 Va. 164, 170, 747 S.E.2d 812, 815 (2013).

Therefore, like any plaintiff, a judgment creditor bears the

burden of proving damages.   See Sunrise Continuing Care, LLC v.

     1
       I join, however, in the portion of the majority's opinion
holding that PS Business cannot garnish funds held in account
61663.



                                15
Wright, 277 Va. 148, 156, 671 S.E.2d 132, 136 (2009).    The

majority recognizes that PS Business has failed to satisfy its

burden.   For this reason, the majority will not direct the

circuit court, upon the record before us, to issue a payment

order for the amount requested under account 95497.    There is

simply insufficient evidence upon which to do so.    Nevertheless,

the majority reverses the circuit court's decision and remands

the case for an evidentiary hearing pursuant to Code §§ 8.01-519

and 8.01-565.

     PS Business has never argued, however, that the circuit

court erred by failing to consider additional evidence, nor does

it seek remand for that purpose. 2   To the contrary, PS Business'

arguments have consistently been predicated on the notion that

it was entitled to receive a larger payment order based on the

evidence introduced during the hearing on G&D Furniture

Holdings' motion to quash the garnishment.    Indeed, PS Business

requests that we hold it is entitled to such payment in the

amount of $726,049.43 upon the record before us.

     The relief granted by the majority pertaining to account

95497 is based entirely on the ground that PS Business is

entitled to have the circuit court hear additional evidence

     2
       In fact, an examination of the record and briefs in this
case reveals that the two statutes relied upon by the majority
in its analysis, Code §§ 8.01-519 and 8.01-565, have not been
cited by PS Business at any stage of this litigation.



                                16
pertaining to SunTrust’s liability to Deutsch & Gilden.    This

argument was neither raised by PS Business in an objection in

the circuit court, as required by Rule 5:25, nor was it

addressed in PS Business' Assignments of Error, as required by

Rule 5:17(c)(1)(i). 3   Consequently, it has been waived under both

Rules.   For the majority to nonetheless raise the issue sua

sponte and rely on it as the basis for reversal renders

completely arbitrary this Court's application of Rules 5:25 and

5:17.

     We are not a court of equity, and as such, “[w]e can

consider only such errors as are properly saved in the record

     3
       Rule 5:25 establishes that "[n]o ruling of the trial
court. . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of
the ruling." Applying this contemporaneous objection
requirement, we have long held that "an objection to a ruling of
the trial court must be made and an exception taken at the time
the occasion arises, otherwise the objection is waived" and will
not be considered on appeal. Witt v. Merricks, 210 Va. 70, 73,
168 S.E.2d 517, 519 (1969).
     Rule 5:17(c)(1)(i) states that "[o]nly assignments of error
assigned in the petition for appeal will be noticed by this
Court." We have repeatedly interpreted this Rule, along with
its Court of Appeals counterpart, Rule 5A:12(c)(1)(i), to stand
for the proposition that "we will not consider . . . arguments
[that] were not made in the petition for appeal." West v.
Commonwealth, 249 Va. 241, 243 n.1, 455 S.E.2d 1, 2 n.1 (1995);
see also Commonwealth v. Brown, 279 Va. 235, 241, 687 S.E.2d
742, 745 (2010) ("The Court of Appeals can only consider issues
properly brought before it by the litigants."); Clifford v.
Commonwealth, 274 Va. 23, 25, 645 S.E.2d 295, 297 (2007) (same);
accord Robinson-Huntley v. George Washington Carver Mut. Homes
Assn., 287 Va. ___, ___ S.E.2d ___, ___ (2014) (this day
decided) (refusing to reverse a trial court's denial of
attorney's fees based on an error not assigned by Appellant).



                                 17
and presented to us by appropriate assignments of error.”    Wash

v. Holland, 166 Va. 45, 54, 183 S.E. 236, 240 (1936); see

Harriss, Magill & Co. v. John H. Rodgers & Co., 143 Va. 815,

854, 129 S.E. 513, 525 (1925) (Christian, J., dissenting)

(noting we are not permitted to "make a case different from the

plaintiffs' pleadings, and then try and decide the same upon an

issue never suggested or considered by the trial court.").   Upon

consideration of the evidence in the record and the errors

assigned by PS Business, I can find no basis for reversal, and I

would affirm the circuit court's decision.




                               18
