       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

BRANCH BANKING AND TRUST COMPANY, a North Carolina banking
   corporation, as successor-in-interest to Colonial Bank by asset
      acquisition from the FDIC as Receiver for Colonial Bank,
                             Appellant,

                                    v.

  ARK DEVELOPMENT/OCEANVIEW, LLC, a Florida limited liability
 company, JOSEPH KODSI, individually, SKD ACQUISITION CORP., a
 Florida corporation, d/b/a ABSOLUTE POWDER COATING, and LAE
  NYY, LLC, a Florida limited liability company, STONE PROFILES (I),
       LLC, a Delaware limited liability company, SMITH & SONS
CONSTRUCTION OF FLORIDA, LLC, a Florida limited liability company,
     and MICHAEL WALL PLUMBING SERVICES, INC., a Florida
                              corporation,
                                Appellees.

                    Nos. 4D14-0046 and 4D14-1925

                            [October 8, 2014]

  Consolidated appeals of a final and non-final order from the Circuit
Court for the Seventeenth Judicial Circuit, Broward County; John J.
Murphy, III, Judge; L.T. Case No. 10040842 (21).

  Christopher D. Donovan, W. Glenn Jensen and Shayne A. Thomas of
Roetzel & Andress, LPA, Orlando, for appellant.

  Howard D. DuBosar and Robert C. Sheres of DuBosar Navon, PLLC,
Boca Raton, for appellee Amy Kodsi.

WARNER, J.

   Branch Banking and Trust Company (“BB&T”) appeals a summary
judgment order dissolving a writ of garnishment directed at a bank
account owned by Amy Kodsi, the wife of BB&T’s judgment debtor, Joseph
Kodsi. The trial court held that the evidence was conclusive that the wife,
Amy, was the owner of the account and that it was not funded with monies
from her husband, Joseph, and BB&T had not submitted any evidence to
show that Joseph Kodsi had any equitable interest in the account. We
agree and affirm.

   BB&T secured a final money judgment against Joseph Kodsi and
several companies associated with Joseph in August of 2011. Amy was
not a party to the judgment. Attempting to collect on the judgment, BB&T
served four writs of garnishment on Bank of America. Bank of America
answered and identified three bank accounts and one safety deposit box
which might be the subject of the writs. This appeal involves only the
account ending in 8070. Bank of America set aside funds from that
account, because the name on the account read “AMY KODSI POA
JOSEPH KODSI ITF JOSEPH KODSI.” Shortly thereafter, Amy revoked
the power-of-attorney and removed Joseph as a beneficiary of the account.

    Pursuant to section 77.16, Florida Statutes (2013), Amy filed an
affidavit alleging the funds in the 8070 account had been improperly
garnished because they belonged to her and not her husband. BB&T filed
a sworn statement objecting to Joseph’s claim of exemption as to some of
the accounts. In this statement, BB&T did not allege that the funds in
account 8070 were fraudulently transferred or are equitably the funds of
Joseph.

    Amy moved for summary judgment as to the garnishment of the 8070
account. She included depositions given by her and Joseph as well as
affidavits from both spouses. In sum, the affidavits stated that she was
the sole owner of the account, which was funded by income from two rental
properties owned by her and Joseph as tenants by the entireties. She also
supplied an affidavit from a Bank of America representative, which
attached the account signature cards and the Bank of America’s policies
as to those accounts.

   BB&T opposed summary judgment on the grounds that there were
genuine disputes of fact regarding the ownership and control of the 8070
account. It claimed, for the first time, that it was reasonable to infer that
Joseph owned certain funds transferred into Amy’s account, although it
did not allege the source of such funds. It did not file any affidavits to
support its response, relying instead on Joseph and Amy’s depositions.

   Amy filed a reply contending that BB&T was creating false ambiguities
in her testimony and that the general source of funds in the account was
undisputed. She argued BB&T had not brought forth any evidence to
contradict her ownership of the funds.



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   The trial court granted Amy’s motion for summary judgment as to the
garnishment of the 8070 account. It found that, because BB&T was a
creditor only of Joseph and not of Amy, BB&T was only “entitled to garnish
property owned exclusively by or due exclusively to Joseph Kodsi,” relying
on section 77.01, Florida Statutes (2013), and Ginsberg v. Goldstein, 404
So. 2d 1098 (Fla. 3d DCA 1981). It found BB&T had:

      failed to submit any evidence to contradict the evidence
      submitted by Amy Kodsi which establishes that the Account
      is owned by Amy Kodsi and that the funds therein belong to
      Amy Kodsi. Moreover, [appellant] has failed to submit any
      evidence to establish that the Account or the funds therein
      belong exclusively to Joseph Kodsi such that they are subject
      to garnishment by [appellant].

From this ruling, BB&T appeals.

   Review of an order granting summary judgment is de novo. Gomez v.
Fradin, 41 So. 3d 1068, 1071 (Fla. 4th DCA 2010). Summary judgment is
proper if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at
Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

   A judgment creditor has the right to garnish

      any debt due to defendant [i.e., the judgment debtor] by a
      third person or any debt not evidenced by a negotiable
      instrument that will become due absolutely through the
      passage of time only to the defendant by a third person, and
      any tangible or intangible personal property of defendant in
      the possession or control of a third person.

§ 77.01, Fla. Stat. (2013). A judgment creditor may serve such a writ of
garnishment on a garnishee, such as a bank. See § 77.06(1), Fla. Stat.
(2013). If a third party claims the property belongs to him, rather than the
judgment debtor, he can file an affidavit to this effect. See § 77.16(1), Fla.
Stat. (2013). Amy filed such an affidavit, claiming full ownership of the
funds.

   We agree with the trial court that the evidence is uncontradicted that
Amy is the title holder to the account. The POA and ITF designations did
not give Joseph an ownership interest in the account. The signature card
Amy signed when she added the POA and ITF designations indicated the
account was still an “individual” account, as opposed to a joint account

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with survivorship or a tenancy by the entireties. Additionally, the Bank of
America deposit agreement and disclosures effective at that time provided,
“If more than one person’s name appears in the title of an account without
a fiduciary, beneficiary or other designation, then the account is a joint
account.” (Emphasis added). Here, there were other designations,
meaning it did not become a joint account. Based upon the account
documents, Amy was the sole owner of the account.

    The trial court correctly cited to Ginsberg v. Goldstein, 404 So. 2d 1098
(Fla. 3d DCA 1981), which held: “For the purposes of garnishment a bank
deposit prima facie belongs to the person in whose name it stands . . . .”
Id. at 1099 (quoting 38 C.J.S. Garnishment § 80 (1943)). Relying on this
language, other district courts have held, “For garnishment purposes,
funds on deposit in a financial institution are presumed to belong to the
person or entity named on the account.” Green v. Dep’t of Revenue ex rel.
Williams, 78 So. 3d 555, 557 (Fla. 5th DCA 2011) (quoting Thomas J.
Konrad & Assocs., Inc. v. McCoy, 705 So. 2d 948 (Fla. 1st DCA 1998)). Not
only did the account documents show that the account belonged to Amy,
BB&T did not produce any evidence to rebut this presumption.

    BB&T mainly claims that Joseph may have had some equitable interest
in the funds or that a fraudulent transfer has occurred which could have
been derived from Joseph’s funds. It argues that to obtain summary
judgment, Amy must prove both her legal ownership of the funds as well
as conclusively refute any allegation that the funds in her account may
have been the result of a fraudulent transfer. Although 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. Nat’l Car Rental Sys.,
Inc. v. Bruce A. Ryals Enters., Inc., 380 So. 2d 529, 530 (Fla. 5th DCA
1980).1

   Amy moved for summary judgment and produced evidence showing her
sole title to the account. She and Joseph also testified that the transfers


1 In Beal Bank, SSB v. Almand and Associates, 780 So. 2d 45 at 59 (Fla. 2001),
the supreme court expressed doubt that the garnishment action in that case was
the appropriate means for a creditor to challenge fraudulent transfers, noting,
“Concerns such as preventing fraud on creditors or fraudulent transfers . . . are
more properly addressed by those statutes that prevent fraudulent transfers; for
example, the Uniform Fraudulent Transfer Act, found in chapter 726 of the
Florida Statutes. See §§ 726.101-.201, Fla. Stat. (2000).” Id. In this case, BB&T
has already filed such an action against Amy and Joseph.


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BB&T questioned were either proceeds from two named rental properties
they held as tenancies by the entireties or proceeds from investments
owned solely by Amy. Thus, they did present evidence of the source of the
funds. BB&T came forth with no evidence to show that a genuine issue
exists that Joseph solely owned funds which were transferred into Amy’s
account.

   Assuming, without deciding, that Amy had the obligation on summary
judgment to refute BB&T’s unpled claim that the monies in the account
equitably belonged to Joseph or were the subject of a fraudulent transfer,
Amy met that burden.

         A movant for summary judgment has the initial burden of
      demonstrating the nonexistence of any genuine issue of
      material fact. But once [the movant] tenders competent
      evidence to support [the] motion, the opposing party must
      come forward with counterevidence sufficient to reveal a
      genuine issue. It is not enough for the opposing party merely
      to assert that an issue does exist.

Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979). Amy and Joseph both
testified that the funds in the 8070 account came from income generated
from Amy and Joseph’s rental properties, held as tenancies by the entirety.
Funds owned by a husband and wife as tenants by the entireties are
“beyond the reach of a creditor of either one of the tenants. Such funds
are immune from garnishment except where the debt was incurred by both
spouses.” Antuna v. Dawson, 459 So. 2d 1114, 1116-17 (Fla. 4th DCA
1984); see also Beal Bank, 780 So. 2d at 53. Therefore, as those funds
were deposited into Amy’s account, they never became the solely owned
property of Joseph and thus would not be subject to garnishment for his
debts.

   Because Amy submitted evidence to support her motion for summary
judgment, BB&T was required to come forward with evidence to reveal a
genuine issue of fact as the ownership of funds. It had to submit
something to show Joseph’s sole ownership of the funds transferred into
Amy’s account, which would suggest a fraudulent transfer, or his equitable
ownership in such funds. All BB&T points to is some confusion in the
testimony of Joseph and Amy, including Amy’s lack of knowledge about
the specifics of some of the transfers. None of these discrepancies amount
to either Amy or Joseph making conflicting statements as to the source of
the funds. They testified consistently that the sources were their two
rental properties held as tenants by the entirety or Amy’s individual
investments. BB&T has not presented any counterevidence to show that

                                    5
a genuine issue exists and that the funds come from Joseph’s solely owned
assets. Suspicion does not constitute evidence.

   The cases cited by BB&T are distinguishable, as in those cases the
judgment creditor provided evidence that the funds in the joint account
came from a source solely in control of the judgment debtor. For instance,
in Ellis Sarasota Bank and Trust Co. v. Nevins, 409 So. 2d 178 (Fla. 2d
DCA 1982), the judgment creditor garnished an account held as tenants
by the entirety between the judgment debtor and his wife. The evidence
was undisputed, however, that the funds in the account came from the
husband’s salary and therefore were his own, individual funds. Id. at 179.
The disputed issue of fact was the intent of the parties in setting up the
account after the judgment against the husband. Id. at 180.

   Similarly, in Thomas J. Konrad and Associates, Inc. v. McCoy, 705 So.
2d 948 (Fla. 1st DCA 1998), the creditor obtained a judgment against the
debtor and garnished a joint account. In response to a motion to dissolve
the writ of garnishment, the creditor responded that the funds in the
account had been received by the debtor in satisfaction of a debt due to
the debtor alone. The intent in depositing those funds in a joint account
was to put them beyond the reach of the debtor’s judgment creditor. Id.
at 949. Thus, the creditor had identified a source of funds owned solely
by the judgment debtor.

    In this case, in contrast, BB&T has not alleged or identified any source
of funds which were solely the property of the judgment debtor, as the
creditors did in Konrad and Ellis. It notes that at one time Joseph owned
a lot of corporations, but it never tied them to any monies available at the
time the 8070 account was opened. If BB&T simply had stated in a
pleading that the account may have been funded from other sources
owned by Joseph alone, it would be legally insufficient to assert a
fraudulent transfer. Cf. Green, 78 So. 3d at 558. We conclude that the
trial court did not err in entering summary judgment for Amy.

   We note, however, that while this case was on appeal from the non-final
order dissolving the writ of garnishment, the trial court entered a final
judgment in Amy’s favor. The court was without jurisdiction to do so. See
Fla. R. App. P. 9.130(f); Garcia-Lawson v. Lawson, 82 So. 3d 137, 137 (Fla.
4th DCA 2012) (“[A] trial court lacks jurisdiction to render a final order
while an appeal from a non-final order in the same case is pending and, if
the trial court does so, the final order is a nullity.”). On remand, the court
is directed to re-enter the final judgment, as the non-final appeal of the
order dissolving the garnishment writ has been resolved by this opinion.


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  Affirmed.

STEVENSON and GERBER, JJ., concur.

                         *           *    *

  Not final until disposition of timely filed motion for rehearing.




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