                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                     February 20, 2014 Session

                    A TO Z SMART PRODUCTS & CONSULTING, ET AL.
                                V. BANK OF AMERICA

                    Appeal from the Chancery Court for Davidson County
                        No. 121433II   Carol L. McCoy, Chancellor




                     No. M2013-01261-COA-R3-CV - Filed April 30, 2014


Garnishor obtained a final judgment which held Garnishee liable for full amount of
outstanding debt of the judgment-debtor. The trial court granted Garnishee’s motion to alter
or amend and vacated the conditional judgment and the final judgment against the Garnishee;
Garnishor appeals. Finding no error, we affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, JJ., joined.

Phillip L. Robertson, Franklin, Tennessee, for the appellant, A to Z Smart Products and
Consulting and Kenneth B. Zangara.

Harold Frederick Humbracht, Jr. and Frankie Neil Spero, Nashville, Tennessee, for the
appellee, Bank of America.

                                   MEMORANDUM OPINION 1

      On October 5, 2012, A to Z Smart Products and Consulting, a New Mexico
Corporation, and Kenneth B. Zangara (collectively, “Plaintiffs”) filed a petition in Davidson


       1
           Tenn. R. Ct. App. 10 states:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
County Chancery Court to register a judgment which had been entered in the Second Judicial
District Court of Bernalillo County, New Mexico, in the amount of $140,000 against SMA
Alliance, LLC (“SMA”). On February 1, 2013, the court entered an order permitting
“execution or other process for enforcement of the foreign judgment may proceed, pursuant
to Tennessee Code Annotated Section 26-6-105(c).”

       On February 4 the Clerk and Master issued a garnishment against Bank of America,
N. A. (“BANA”) in the amount of $140,000; the garnishment was served upon BANA on
February 6. On March 12 a conditional judgment was entered against BANA for $140,000,
and a hearing set for March 25 to show cause why the conditional judgment should not be
made final. BANA did not appear at the show cause hearing, and on April 8 Plaintiffs filed
a proposed Judgment.

       On April 19 BANA filed a motion to “set aside the conditional judgment entered
against BANA on March 12, 2013, and to strike the proposed Judgment currently pending
before the court”; in the motion, BANA contended that it “filed a written answer” on
February 27 and “[t]hereafter . . . deposited the sum of $29,141.54 . . . (i.e. the amount held
by BANA in the Judgment Debtor’s three identified accounts) with the Court.” As an
exhibit, BANA filed a copy of a letter from Dominica Bellino of BANA to the Chancery
Court Clerk dated February 7 which stated:

       Dear Sir or Madam,

       Bank of America, N.A. hereby files its Answer to the above mentioned matter
       as follows:


                                                            Account      Transaction
                         Account Title
                                                            Number        Amount

             STRATEGIC MARKETING AUTO                         ***         $28,995.81
                   ALLIANCE LLC

             STRATEGIC MARKETING AUTO                         ***           $45.53
                   ALLIANCE LLC

             STRATEGIC MARKETING AUTO                         ***          $100.20
                   ALLIANCE LLC

       If you have any questions, please contact us.




                                              2
        Sincerely,
        /s/
        Dominica Bellino
        Legal Order Processing
        ***
        cc: Philip (sic) Robertson

       On April 22 the court entered a judgment against BANA for $111,073.96 2 ; the order
stated that BANA filed no response to the order to show cause and did not appear at the
hearing. On April 25 BANA filed a Tenn. R. Civ. P. 59.06 motion to alter or amend the
judgment entered April 22; Plaintiffs filed an objection to BANA’s motion on April 29.

       On May 31 the court vacated the April 22 judgment, finding that BANA filed a
written answer to the garnishment and deposited the garnished amount into the court on
February 253 and holding that “a conditional judgment is not an available remedy against a
garnishee where the garnishee has already filed an answer to the garnishment.”

        Plaintiffs appeal, raising the following issue:

        The trial court erred in granting Appellee Bank of America, N.A.’s (“BANA”)
        Motion to Alter or Amend Judgment or, Alternatively, Motion for Relief from
        Judgment entered in favor of Appellants and against BANA for BANA’s
        failure to answer a garnishment.

I. S TANDARD OF R EVIEW

        Appellate courts review decisions dealing with Tenn. R. Civ. P. 59.04 under an abuse
of discretion standard since this request for relief is “addressed to the trial court’s discretion.”
McCracken v. Brentwood United Methodist Church, 958 S.W.2d 792, 795 (Tenn. Ct. App.
1997); accord Henry v. Goins, 104 S.W. 3d 475, 479 (Tenn. 2003); Underwood v. Zurich Ins.
Co., 854 S.W.2d 94, 97 (Tenn. 1993). An appellate court is not permitted to substitute its
judgment for that of the trial court under an abuse of discretion standard. Henry, 104 S.W.3d
at 479; Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). Only when a trial court has
“applied an incorrect legal standard, or reached a decision which is against logic or reasoning
that caused an injustice to the party complaining” is the trial court found to have abused its


        2
           The order stated this amount was “equal to the garnishment amount of $140,000 less a credit
received in the amount of $28,926.04, after application to court costs.”
        3
           An answer filed February 25 is not in the record. The only “Answer” in the record is the February
7 letter from BANA.

                                                     3
discretion. State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002) (quoting State v. Shuck, 953
S.W.2d 662, 669 (Tenn. 1997)).

II. D ISCUSSION

       In this garnishment proceeding, BANA, served with a garnishment on February 6, sent
its answer in the form of a letter to the clerk detailing SMA’s accounts; BANA subsequently
paid the balance of those accounts into the court. There is no dispute that BANA took these
actions before the conditional judgment was entered on March 12.4 Plaintiffs, instead, make
various arguments regarding the sufficiency and timeliness of BANA’s February 25 response
under Tenn. R. Civ. P. 69.05.5


        4
            At the hearing on BANA’s motion to alter or amend, the court and counsel for Plaintiffs engaged
in the following exchange regarding the letter from Dominica Bellino of BANA to the Chancery Court Clerk
dated February 7:

        THE COURT: As you’ll see, the very first line says, this is our answer.
        MR. ROBERTSON: I see that, Your Honor. . . . It was filed on February 25th with the
        Court. Says, received by Davidson Chancery Court February 25th.

The answer discussed at the hearing included a photocopy of BANA’s check for $29,141.54.
        5
            Tenn. R. Civ. P. 69.05(3)–(4) amendment effective July 1, 2004, provides:

        (3) Garnishee’s Duty Upon Service. The garnishee by the next business day after service
        shall ascertain whether the garnishee holds property of the debtor. If so, the garnishee shall
        mail one copy of the writ of garnishment with the notice to the last known address of the
        judgment debtor. Where the garnishee is a financial institution, the balance in the judgment
        debtor's accounts on the night of the service date is the amount subject to that garnishment
        writ.

        Within ten days of service, the garnishee shall file a written answer with the court
        accounting for any property of the judgment debtor held by the garnishee.

        Within thirty days of service, the garnishee shall file with the court any money or wages
        (minus statutory exemptions) otherwise payable to the judgment debtor. If the garnishee
        holds property other than money or wages, a judgment may be entered for that property and
        a writ of execution may issue against the garnishee.

        (4) Failure of Garnishee to Respond. If the garnishee fails to timely answer or pay money
        into court, a conditional judgment may be entered against the garnishee and an order served
        requiring the garnishee to show cause why the judgment should not be made final. If the
        garnishee does not show sufficient cause within ten days of service of the order, the
        conditional judgment shall be made final and a writ of execution may issue against the
        garnishee for the entire judgment owed to the judgment creditor, plus costs.

                                                      4
       In Smith v. Smith, this Court discussed conditional judgments in the context of
garnishment proceedings:

        A conditional judgment is similar to a default judgment, in that both remedies
        recognize a failure to respond to process. Meadows, 1988 WL 116382, at *4.
        Unlike a default judgment, however, a conditional judgment does not admit
        facts alleged, but, rather, “[i]t is a threat of final judgment if [a] response
        should not be forthcoming. It is a means of inducing a response and a threat
        of penalty for failure, but it is not a judgment establishing any rights.” Id.; see
        Ball Bros., 1987 WL 12388, at *2 (“The conditional judgment is an
        enforcement tool.”). The conditional judgment is not intended to be punitive,
        but is intended as an enforcement tool, a “wake up call” to the garnishee, a
        warning that a proper defense must be asserted to prevent the entry of a final
        judgment. In re Warner, 191 B.R. at 710–11. “[T]he conditional judgment
        gives ‘another opportunity’ to the garnishee ‘to answer the garnishment.’ ” Id.

Smith v. Smith, 165 S.W.3d 285, 293–94 (Tenn. Ct. App. 2004).

        Tenn. R. Civ. P. 69.05 provides that the court may enter a conditional judgment where
the garnishee fails to timely answer or pay money into court; a conditional judgment is not
mandatory and serves no purpose where a garnishee has answered and paid money into court
prior to the issuance of the conditional judgment. We reiterate the policy stated in Smith that
a conditional judgment is not intended to be punitive in nature, and that it is an enforcement
tool only.6 BANA submitted its answer and made payment into the court prior to the March
12 issuance of the conditional judgment. The trial court did not err in granting BANA’s
motion to alter or amend and in vacating the conditional and final judgment against BANA.




                                                          ________________________________
                                                          RICHARD H. DINKINS, JUDGE




        6
         Plaintiffs’ contention that the 2004 revision of Tenn. R. Civ. P. 69 overruled Smith is not well
taken. The Advisory Commission Comment to the 2004 Amendment provides:

        Rule 69 is rewritten in its entirety. The intent is to consolidate procedures established by
        statute, court precedent, and custom into a single orderly rule. New Rule 69 does not
        radically change current law.


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