         Third District Court of Appeal
                                  State of Florida

                              Opinion filed June 21, 2017.
            Not final until disposition of timely filed motion for rehearing.

                                  ________________

                                   No. 3D16-430
                            Lower Tribunal No. 14-20811
                                ________________


                                Luz Mery Salcedo,
                                      Appellants,

                                           vs.

                             Wells Fargo Bank, N.A.,
                                       Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Monica Gordo,
Judge.

     Easley Appellate Practice PLLC and Dorothy F. Easley; Austin Carr (Fort
Lauderdale), for appellant.

       Stearns Weaver Miller Weissler Alhadeff & Sitterson and Marissa D. Kelley
(Fort Lauderdale), for appellee.


Before ROTHENBERG,1 SALTER and LOGUE, JJ.

        SALTER, J.

1   Judge Rothenberg did not participate in oral argument in this case.
      Luz Salcedo, plaintiff below, appeals the circuit court’s final judgment

dismissing her third amended complaint2 against Wells Fargo Bank, N.A. (“Wells

Fargo”), with prejudice. We affirm in part, reverse in part, and remand the case for

further proceedings. The legal issues in the case are sufficiently novel to warrant

description and analysis. These issues are:

      1.   Whether a judgment creditor has a statutory cause of action for

negligence, or a cause of action for spoliation, against a garnishee which identifies

and “places a hold” on a safe deposit box over which the judgment debtor has

control, if the garnishee nevertheless allows unauthorized access to the safe deposit

box and removal of its contents in breach of the garnishee’s statutory duty.

      2.   Whether a subsequent discharge of the underlying judgment in the

bankruptcy of the judgment debtor precludes further prosecution of the judgment

creditor’s claim or claims against the errant garnishee.

      3. If such a claim survives the discharge in bankruptcy of the judgment

debtor, whether (a) the claim must be prosecuted as part of the garnishment in the

original lawsuit, or (b) the claim may be prosecuted as a new and independent

lawsuit against the garnishee. Restated, is a final judgment in garnishment—which

did not adjudicate Ms. Salcedo’s later claim of negligence relating to the contents

of the safe deposit box—res judicata as to that negligence claim?

2 We refer to the third amended complaint, the operative complaint for purposes of
our analysis, as the “complaint.”

                                          2
        I.      Allegations and Procedural Background

        The complaint in the present action (“2014 Case”) followed Ms. Salcedo’s

lengthy efforts in a prior case (“2006 Case”) to recover $1,025,000.00 she had

invested with Felix Rodriguez in 2003. In 2006, Ms. Salcedo filed a circuit court

lawsuit alleging fraud, breach of fiduciary duty, and other claims. In March 2012,

Ms. Salcedo obtained a final judgment against Mr. Rodriguez’s widow, Maria

Renzi de Rodriguez,3 both individually and in her capacity as personal

representative of the estate of Felix Rodriguez, for $895,500.00.

                A.    Garnishment and the Safe Deposit Box

        As part of her effort to collect the judgment against Ms. Renzi, Ms. Salcedo

served a writ of garnishment in the 2006 Case on the appellee, Wells Fargo, in July

2012.        In August 2012, Wells Fargo filed an amended answer as garnishee

disclosing two bank accounts (with collective balances of $2,078.41) in Ms.

Renzi’s name, as well as a safe deposit box in the name of “Maria C. Renzi, Jorge

A. Villasmil, Jr., Marion Cecilia Villasmil.”4 Wells Fargo’s amended answer

reported that Wells Fargo “has placed a ‘hold’ on the Safe Deposit Box in


3 Maria Renzi de Rodriguez was also known as Maria Cruz Renzi. She is referred
to in this opinion as “Ms. Renzi.”
4  The Villasmils are Ms. Renzi’s son-in-law and daughter. Ms. Renzi, her son-in-
law, and her daughter each had the right to enter the safe deposit box until Wells
Fargo was served with the writ of garnishment and placed the hold on the box and
its contents.

                                          3
accordance with Chapter 77, and primarily Section 77.06(2) and (3), Florida

Statutes.”

      Later that month, the trial court entered (a) a “Final Garnishment Judgment”

requiring payment of Ms. Renzi’s funds from the two accounts to Ms. Salcedo, and

(b) on the same day, an order directing Wells Fargo to open the safe deposit box to

permit Ms. Salcedo to inventory the contents, and to “make available for

inspection and copying any and all records, including original signatures, if

available, showing who, if anyone, has had access to the safe deposit box since the

commencement of this action on February 22, 2006.” The order for the inventory

of the safe deposit box required the property in the box to be “held in the safe

deposit pending further order of this court.”

      However, when counsel for Ms. Salcedo arrived at the Wells Fargo branch

ready to inventory the contents of the safe deposit box and to review the records

regarding it, she was informed for the first time that the contents of the box had

been removed and Ms. Renzi’s account closed—well after Wells Fargo was served

with the writ of garnishment.

             B.    Ms. Renzi’s Bankruptcy

      Five days after the order regarding the safe deposit box and discovery that

Ms. Salcedo’s son-in-law and daughter were given access to the box (despite Wells

Fargo’s representation that a “hold” would be in effect), Ms. Renzi filed a



                                          4
liquidating bankruptcy under Chapter 7 of the United States Bankruptcy Code.

Initially, Ms. Salcedo appeared in the bankruptcy case and filed an adversary

complaint objecting to Ms. Renzi’s discharge as to Ms. Salcedo’s unsatisfied 2012

judgment against Ms. Renzi. Ultimately, however, Ms. Salcedo abandoned that

complaint in the bankruptcy case and Ms. Renzi obtained a discharge of

indebtedness under 11 U.S.C. §727.

      Wells Fargo maintains that Ms. Renzi’s discharge included the judgment

against her held by Ms. Salcedo, such that there is no longer a judgment that can be

collected in her 2014 Case against Wells Fargo. Ms. Salcedo argues that the claim

against Wells Fargo accrued before Ms. Renzi’s discharge was obtained, and that it

is an independent claim to recover the value of funds or property taken from the

safe deposit box that was on “hold,” in the garnishment, and that would have been

turned over to Ms. Salcedo “but for” Wells Fargo’s mistake.5

      Ms. Renzi’s son-in-law and daughter, the Villasmils, opened a safe deposit

box in their names only days after Ms. Renzi’s bankruptcy filing. Ms. Salcedo

obtained an order for an inventory of that safe deposit box as well, and the

5  Section 77.14, Florida Statutes (2012), “Disposition of property surrendered by
garnishee,” provides that personal property of the judgment debtor in the
possession or control of the garnishee is to be received by the sheriff and sold
under the execution against the judgment debtor. If the Villasmils claimed an
interest in the property held by Wells Fargo as garnishee, section 77.16 would have
required them to provide an affidavit to that effect and the issue would have been
tried to a jury or the court.


                                         5
inventory was prepared on December 12, 2012, but the complaint does not address

whether Ms. Salcedo obtained the contents of that second safe deposit box.



             C.    The 2014 Case Against Wells Fargo

      Ms. Renzi obtained her bankruptcy discharge in late 2013. Ms. Salcedo then

filed the 2014 Case against Wells Fargo and its branch manager for negligence and

spoliation. The complaint asserted two counts: “general negligence” based on

Wells Fargo’s (and its branch manager’s)6 failure to supervise access to the safe

deposit box despite the “hold” it represented would be in effect in its garnishment

response, and “spoliation of evidence,” alleging that the loss of the contents of the

safe deposit box constitutes spoliation of evidence under Public Health Trust of

Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987). The negligence claim alleged

a breach of duty by Wells Fargo under the garnishment law.

      Ultimately the complaint was dismissed with prejudice for failure to state a

legally sufficient cause of action. This appeal followed.

      II.    Analysis

      In reviewing an order dismissing a complaint with prejudice, “[w]e assume

that all allegations in the complaint are true, and we construe all reasonable

inferences from those allegations in favor of [the plaintiff].” Greene v. Times

6 Ms. Salcedo has not appealed the dismissal of the claims against the branch
manager.

                                         6
Publ’g Co., 130 So. 3d 724, 728 (Fla. 3d DCA 2014) (citing United Auto. Ins. Co.

v. Law Offices of Michael Libman, 46 So. 3d 1101, 1103–04 (Fla. 3d DCA 2010)).

Our review for legal sufficiency in such a case “is limited solely to the complaint

at issue and its attachments.” Santiago v. Mauna Loa Invs., LLC, 189 So. 3d 752,

756 (Fla. 2016).

      We next address in order the three issues identified at the outset of this

opinion.

             A.    First Issue: Cause of Action

      Section 77.06(1) and (2), Florida Statutes (2012), imposed a statutory duty

upon Wells Fargo to secure the safe deposit box of Ms. Renzi, and thus any

property within it, upon service of the writ of garnishment on July 13, 2012:

      (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. Service of the writ creates a lien in
      or upon any such debts or property at the time of service or at the time
      such debts or property come into the garnishee's possession or control.

      (2) The garnishee shall report in its answer and retain, subject to the
      provisions of s. 77.19 and subject to disposition as provided in this
      chapter, any deposit, account, or tangible or intangible personal
      property in the possession or control of such garnishee; and the
      answer shall state the name or names and addresses, if known to the
      garnishee, of the defendant and any other persons having or appearing
      to have an ownership interest in the involved property.




                                         7
      The service of the writ on Wells Fargo thus (a) rendered the bank liable as

garnishee for the tangible property in the safe deposit box under the bank’s control,

and (b) created a statutory lien on that property. In re Giles, 271 B.R. 903, 906

(Bankr. M.D. Fla. 2002). The bank should have denied, but did not, further access

to the safe deposit box pending service of its answer to the writ and a court

directive regarding further disposition of the contents of the safe deposit box.

      Wells Fargo’s amended answer to the writ on August 8, 2012, stated that the

bank held certain funds of Ms. Renzi and that it “has placed a ‘hold’ on the Safe

Deposit Box” in her name. In fact, however, Wells Fargo’s records indicated that

it had allowed the safe deposit box to be closed on August 4, 2012, and the

contents to be removed.

      The liability of a garnishee bank for funds of its customer (the judgment

debtor) negligently allowed to be withdrawn following service of the writ is clear.

Dixie Nat’l Bank v. Chase, 485 So. 2d 1353 (Fla. 3d DCA 1986); Sun Bank/N. Fla

Nat’l Ass’n v. Bisbee-Baldwin Ins. Co., 559 So. 2d 351 (Fla. 1st DCA 1990). That

liability also has been found to extend to attorneys holding funds of the judgment

debtor. Arnold, Matheny & Eagan, P.A. v. First Am. Holdings, Inc., 982 So. 2d

628, 641 (Fla. 2008). There is no reason to apply a different interpretation of

section 77.06 when tangible property in a safe deposit box, rather than the balance

of a deposit account, is negligently released by the garnishee.          Wells Fargo



                                          8
suggests that there is no private cause of action created by section 77.06, but we

disagree. The statute does more than merely make provision to secure the safety

and welfare of the public; rather, it protects a garnishor/judgment creditor’s lien

and rights to funds and property of the debtor upon service of the writ. See Murthy

v. N. Sinha Corp., 644 So. 2d 983 (Fla. 1994); Arnold, Matheny & Eagan, P.A.,

982 So. 2d at 633.

      The complaint included a second alleged cause of action—spoliation of

evidence by Wells Fargo in allowing the release of the contents of the safe deposit

box when those contents should have been restricted by Wells Fargo and held for

disposition by the court. In support of this theory of liability, Ms. Salcedo cites

Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987), and

Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005). As these cases make

clear, however, when spoliation is asserted against a negligent defendant in a

particular case (“first-party spoliation of evidence,” Martino, 908 So. 2d at 346),

the remedy is not an independent cause of action, but rather a rebuttable

presumption of negligence on the part of the defendant.7



7 Valcin and Martino address other remedies available in the case of evidence lost
through intentional acts of the defendant (sanctions, for example). There is no
allegation in the present case that Wells Fargo intentionally sought to release
property to, or for the benefit of, the judgment debtor in contravention of the writ
of garnishment, the garnishor’s statutory lien, and Wells Fargo’s statutory duty.


                                         9
      At this procedural point, we do not address Ms. Salcedo’s entitlement to

such a presumption. We do, however, affirm the trial court’s dismissal with

prejudice as to Count II of the complaint insofar as Count II sought to plead a

separate cause of action against Wells Fargo for spoliation.

      The more difficult question in the present case is how Ms. Salcedo can

establish the value of any property in the safe deposit box when Wells Fargo

negligently permitted the property to be removed and the box to be closed. Ms.

Salcedo’s complaint alleges in Count I (negligence) that Wells Fargo’s breach of

its duty after service of the writ of garnishment “significantly impaired Salcedo’s

ability to prove that the contents were property of Maria Renzi and also what the

specific contents of the box were and thus, the full value of any of Maria Renzi’s

property in the safe deposit box.”

      In Count II (the legally insufficient attempted spoliation claim),8 Ms.

Salcedo similarly alleged that the unjustified release of the contents of the safe

deposit box prejudiced Ms. Salcedo’s “effort to prove the contents of the box and

their value.” In the absence of unlikely admissions by Ms. Renzi, her daughter,

and her son-in-law or a specific inventory of the contents of the box before Wells




8  While the spoliation claim is insufficient as an independent cause of action,
paragraphs 15 and 16 of the complaint do claim the benefit of the Valcin
evidentiary presumption.

                                         10
Fargo allowed entry and removal of the contents, proof of damages may be

daunting.

      That proof, however, is not for assessment at the current procedural point.

Hochman v. Lazarus Homes Corp., 324 So. 2d 205, 206 (Fla. 3d DCA 1975) (“A

motion to dismiss is not a proper method of attacking a complaint that is

insufficient only in that the elements of damage are improper or insufficiently

alleged.”).

      Ms. Salcedo might ultimately obtain discovery or prove that property in the

daughter’s and son-in-law’s safe deposit box was Ms. Renzi’s property and in her

safe deposit box at the time the writ of garnishment was served. But the amount of

damages is not at issue at the motion to dismiss stage of the proceedings. Shands

Teaching Hosp. v. Beech St. Corp., 899 So. 2d 1222, 1229 (Fla. 1st DCA 2005).

The complaint was not subject to dismissal with prejudice on grounds that no

damages can be shown.

              B.   Second Issue: Ms. Renzi’s Discharge in Bankruptcy

      Wells Fargo argues that the judgment debt of Ms. Renzi was discharged in

her bankruptcy, thus eliminating any liability of Wells Fargo to Ms. Salcedo as

judgment creditor. We disagree. With her discharge, Ms. Renzi obtained a release

from further attempts by Ms. Salcedo to collect from Ms. Renzi on the judgment.

The bankruptcy discharge had no effect on the right of Ms. Salcedo to collect from



                                       11
Wells Fargo for the bank’s negligent release of the safe deposit box contents

before the bankruptcy petition was filed. The negligence claim by Ms. Salcedo

against Wells Fargo is not property of the debtor subject to administration in Ms.

Renzi’s bankruptcy estate. See 11 U.S.C. § 541(a)(1).

      Ms. Salcedo’s filing of an adversary complaint objecting to Ms. Renzi’s

discharge, and Ms. Salcedo’s subsequent abandonment of that complaint, was not

an adjudication of any claim by Ms. Salcedo against Wells Fargo. Had that

adversary complaint been successful, it would have allowed Ms. Salcedo to

continue collection actions against Ms. Renzi and her property, but would have had

no effect on Ms. Salcedo’s claims against Wells Fargo. See 11 U.S.C. §§ 523,

524(e); Daniels v. Sorriso Dental Studio, LLC, 164 So. 3d 778 (Fla. 2d DCA

2015).

      Finally, as already noted, service of the writ of garnishment on Wells Fargo

before the bankruptcy created a lien on the property in Ms. Renzi’s safe deposit

box. In re Giles, 271 B.R. at 906. Ms. Renzi’s discharge in bankruptcy voided any

personal liability she might have as judgment debtor, but did not discharge or

vacate the lien encumbering any property in the safe deposit box created when the

writ was served.    In re Branam, 476 B.R. 333, 337 (Bankr. S.D. Fla. 2012)

(concluding that lien rights on property of the debtor survive the debtor’s discharge

in a Chapter 7 case).



                                         12
      Ms. Salcedo’s claim against Wells Fargo is unaffected by Ms. Renzi’s

discharge in bankruptcy and by Ms. Salcedo’s abandoned objection to the

dischargeability of the judgment.

             C.     Third Issue: Alleged Res Judicata

      Wells Fargo argues that Ms. Salcedo’s claim under the garnishment statute

was required to be brought in the 2006 Case (in which Ms. Salcedo obtained her

judgment against Ms. Renzi) rather than in the new, independent lawsuit against

Wells Fargo (the 2014 Case). Wells Fargo maintains that the August 2012 “Final

Garnishment Judgment” obtained by Ms. Salcedo “foreclosed any further action

against the Bank based upon it.”

      The Final Garnishment Judgment in the 2006 Case does not address the safe

deposit box, however—it addresses only the bank accounts, as to which there was

no controversy. At the time of the final judgment relating to those accounts, the

trial court also entered the order providing for the inventory of the safe deposit

box. Ms. Salcedo did not learn of Wells Fargo’s error in allowing removal of the

contents of the safe deposit box until the inventory could be scheduled and

conducted. The “Final Garnishment Judgment” was not a final adjudication with

respect to the safe deposit box.

      Wells Fargo cites no authority, and we have found none, suggesting that a

claim against a negligent bank for a breach of its duty under section 77.06, Florida



                                        13
Statutes, can only be brought in the underlying action by the plaintiff/judgment

creditor/garnishor against the defendant/judgment debtor (as opposed to a separate

and later claim brought by the plaintiff/judgment creditor/garnishor against only

the errant garnishee). The purpose of the judgment referred to by section 77.083,

Florida Statutes (specifying that a final judgment shall be entered for the amount of

the garnishee’s liability on the garnishee’s answer), is to allow transfer of the funds

held by the garnishee for the judgment debtor to the garnishor. The garnishee’s

liability for its negligence in allowing money or property to slip away after service

of the writ may not be susceptible of liquidation without additional pleadings,

discovery and trial.

      And so it is in the present case. The 2006 Case between Ms. Salcedo and

Ms. Renzi has concluded, but the 2014 Case by Ms. Salcedo against Wells Fargo is

still at the pleadings stage. Upon remand, Ms. Salcedo will be entitled to prosecute

her claim for negligence for damages for the value of any of Ms. Renzi’s property

in the safe deposit box subject to the garnishment (and to seek the benefit of the

Valcin evidentiary presumption), not to exceed the judgment debt owed by Ms.

Renzi. Wells Fargo will be entitled to raise any affirmative defenses it may have,

and discovery may shed light on Wells Fargo’s error and the property allowed to

be removed from the safe deposit box. That claim, and those facts, have not




                                          14
previously been adjudicated so far as is revealed in the record before us. We

express no opinion as to the ultimate merits or result of the 2014 Case on remand.

      III.   Conclusion

      The complaint stated a legally sufficient cause of action for negligence

against Wells Fargo in Count I. We reverse and remand the case for further

proceedings on that claim. We affirm the dismissal with prejudice insofar as Ms.

Salcedo sought to establish a separate cause of action against Wells Fargo for

spoliation in Count II (as opposed to Ms. Salcedo’s claim to a rebuttable

presumption under the Valsin and Martino cases, detailed elsewhere in this

opinion).

      Affirmed in part, reversed in part, and remanded for further proceedings.




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