Boring Details

and fine print

Archive for the ‘Civil procedure’ Category

A Kentucky Motion to Intervene – Cases Cited

leave a comment »

Kentucky appellate decisions cited:

  1. Fugate v. Creech, 271 Ky. 3, 111 S.W.2d 402. 1937
  2. Monticello Electric Plant Board v. Board of Education, 310 S.W.2d 272 (Ky. 1958)
    This case involved the sale of a privately owned power plant to a municipal agency. The sale closed on January 20, 1954. Subsequently a civil action was brought to collect a franchise tax that was assessed effective January 1, 1954 when the plant was still owned privately. The tax assessment was for a whole year and the sales contract possibly obligated the new municipal owner to reimburse the seller for most of the tax assessment, pro rata. Judgment was entered against the prior owner on January 15, 1957. About one month after the judgment was entered, the new municipal owner sought to intervene in the action to question the imposition of the tax.
    The motion to intervene was denied and the denial of the motion was affirmed on appeal.
    The Court of Appeals observed that the applicant for intervention: (1) Failed to allege or prove the existing parties to the action would not adequately protect its interest regarding the imposition of the tax. (2) The applicant for intervention offered no justification for delaying until after judgment was entered before seeking to intervene. The court stated, “While intervention after judgment may be permitted under some circumstances . . . we think that in making a motion for intervention after judgment the applicant has a special burden of justifying the apparent lack of timeliness.” And, (3) the court was of the opinion the new municipal owner would not prevail even if it had been allowed to intervene. Without the court saying so, it is possible to surmise the problem was with the sales contract which was not being litigated, rather than being with the tax. The court did say the existence of a pending sales contract on the assessment date, “was of no concern of the taxing authorities, and furnished no basis for assessing less than the full tax against the company.
  3. City of Henderson v. Todd, Ky., 314 S.W.2d 948, 951 (1958)
    The City of Henderson sought to issue municipal bonds to finance the purchase of an industrial property for the purpose of economic development. To test the legal sufficiency of the plan, the city filed a ‘reverse taxpayer suit’ for declaratory judgment. Other taxpayers sought to intervene in the action. The motion to intervene was denied and Notice of Appeal was filed immediately. Nonetheless, the declaratory action proceeded to judgment, which was adverse to the bond issue and the city appealed. The city’s appeal and the appeal of the unsuccessful intervenors were consolidated.
    Although the Court agreed that an appeal may be taken from the denial of a motion to intervene as a matter of right, citing Fugate v. Creech, 271 Ky. 3, 111 S.W.2d 402. (1937), since the court affirmed the judgment below adverse to the bond issue, the matter of intervention was essentially moot. The intervenors got what they wanted.
  4. Stewart v. Burks, Ky., 384 S.W.2d 316 (1964)
    This case was a voter suit brought to challenge the nominating petition of a candidate in a local school board election. Another candidate in the same election sought to intervene as a party plaintiff. The original plaintiffs were dismissed for lack of statutory standing, the motion to intervene was granted, the intervening plaintiff adopted the complaint of the original plaintiffs and judgment was entered in the intervening plaintiff’s favor, invalidating the nominating petition of the defendant candidate. The judgment was affirmed on appeal. The only objection to allowing the intervention was the ruling was very late in the trial court action, apparently just before judgment was entered.
    Relying on Monticello Electric Plant Board v. Board of Education, Ky., 310 S.W.2d 272, the Court of Appeal dealt with the issue of intervention by saying, “[s]ince the intervenor was presenting no new claim, and was adopting the original complaint in which he had a real interest, the trial court did not commit error in permitting him to be made a party.
    The intervenor sought only to adopt and present a claim which had been timely made by another party.
  5. Webster v. Board of Education of Walton-Verona Independent School District, 437 S.W.2d 956, 957 (Ky 1969)
    A May, 1967 tax referendum was contested by an action filed in October, 1967. Intervention was requested in November, 1967. Summary judgment “under CR 12.03” was entered against both plaintiff and intervening plaintiffs because Kentucky election law required such contests to be commenced within 30 days of the election. Intervening plaintiffs appealed, claiming their intervening complaint asserted claims in addition to the election contest and these additional claims were not addressed by the trial court’s summary judgment. For example, the intervening complaint alleged the tax in question was “arbitrary, capricious, confiscatory and in violation of the Constitution,”
    Although the Court of Appeals discussed the difference between Civil Rule 24.01 (intervention as of right) and Civil Rule 24.02 (permissive intervention), the issue of intervention was not central to the court’s holding. One suspects the Court of Appeals viewed allowing the intervention to have been a mistake, or at least unnecessary. The court decided the intervening plaintiffs’ “additional claims” were “insufficient” and did not amount to “multiple claims.” The judgment was affirmed.
  6. Murphy v. Lexington-Fayette County Airport Board, Ky., 472 S.W.2d 688 (1971)
    A car rental firm obtained a judgment for specific performance of a contract for an airport car rental concession. The airport board announced it did not intend to appeal the judgment and a competing car rental firm sought to intervene with the claim the rental concession of the first firm would adversely affect its own exclusive contract for the airport’s rental car concession. The motion to intervene was denied and an appeal of that denial followed.
    The applicant for intervention argued the airport board’s failure to appeal was evidence its interests were not being adequately represented by the party to the action. The Court of Appeals countered with, “The mere fact that an unfavorable judgment was entered and that the airport board chose not to appeal from that judgment does not establish lack of adequate representation in the trial of the case, which is what CR 24.01 deals with.
    The court recognized that intervention after judgment may be appropriate in some circumstances and that a failure to appeal might also indicate inadequate representation, but this case did not qualify. The court held the post-judgment motion to intervene to be untimely. The court did not discuss the possibility that the applicant for intervention might have an adequate remedy in an action for breach of contract regarding its exclusive rental concession.
  7. Barry v. Keith, Ky., 474 S.W.2d 876 (Decided December 17, 1971)
    This was an original action seeking a Writ of Prohibition regarding the difficult issue of an automobile insurance company asking to intervene in a personal injury action. The court observed there was no consensus of opinion or clear analysis to be gleaned from other jurisdictions, The court stated:

    Without attempting to outline all of the conditions which might be required, we believe intervention should not be allowed except upon the inclusion of the following conditions: (1) It should be established that there is in fact an uninsured motorist. If non-insurance becomes a disputed question of fact, it may be submitted to the court for determination before the trial of the main issue. (2) The intervenor should acknowledge that it will be bound by the judgment subject, of course, to the right of appeal. (3) The intervenor must take the case with the issues as joined, unless it can make a showing to the trial court that justice requires other issues to be joined. (4) The identification of the respective parties and the attorneys should be revealed to the jury. (5) The intervenor should disclose to the insured that the interest of the insured might be in conflict with the interest of the intervenor and that the insured is not required to cooperate with the intervenor. Any information gained by the intervenor from the insured by reason of the insurer insured relationship should not be used adversely to the insured. (6) Other conditions as the trial judge in his reasonable discretion believes are necessary to insure a fair and orderly trial should be invoked.

  8. Dairyland Insurance Company v. Clark, Ky., 476 S.W.2d 202 (1972)
    This was an appeal from a denial of an automobile insurance company to intervene in a personal injury action under the provisions of its uninsured motorist coverage, for the purpose of preserving the insurance company’s defenses. The issue was the timeliness of the motion. Defendant failed to appear and defend the action, Plaintiff moved for default judgment and a hearing on the issue of damages was held. Before default judgment was actually entered, however, the insurance company moved to intervene and objected to the entry of default judgment.
    The motion to intervene was overruled for the reason that it was not timely filed. The court found that the untimeliness of the motion to intervene was not the result of excusable neglect and a default judgment for appellee was entered. On appeal the facts relating to the timeliness of the motion to intervene were closely examined. The court ruled, “The proper application and utilization of the Civil Rules should be left largely to the supervision of the trial judge and we must respect his exercise of sound judicial discretion in their enforcement . . . Under these circumstances we cannot say that the trial court clearly abused its discretionary powers in ruling that the motion to intervene was untimely.” The denial of the motion to intervene was affirmed.
  9. Pearman v. Schlaak, Ky., 575 S.W.2d 462 (1978)
  10. Yocom v. Hi-Flame Coals, Inc., Ky.App., 568 S.W.2d 757 (1978)
    The Commissioner of Labor and Custodian of the Special Fund sought to intervene in the Circuit Court review of a Workers’ Compensation award, under prior law. The provisions of KRS 342.285, which granted a right to appear in the proceedings, have since been substantially amended and the review procedures for Workers’ Compensation changed. This case has little value as precedent today in Worker’s Compensation cases. The court did state, “Our courts, generally, construe CR 24 liberally in order to effect the purpose of intervention.”
  11. Ashland Public Library Board of Trustees v. Scott Ky., 610 S.W.2d 895 (1981)
    The Supreme Court of Kentucky embraced the dictum in City of Henderson v. Todd, Ky., 314 S.W.2d 948, 951 (1958) that an appeal may be taken from the denial of a motion to intervene as a matter of right, Civil Rule 24.01. This is to be distinguished from the denial of a permissive intervention under Civil Rule 24.02 or the grant of any motion to intervene, none of which are final appealable orders in Kentucky practice.
    The court also dismissed the argument that The provisions of Civil Rule 54.02(1)apply to orders denying intervention.

    Applicants for intervention are not parties to an action and do not present claims for relief in an action unless and until they are permitted to intervene. Rather, they seek to become parties so that they may then assert a claim or defense in the action. CR 24.03. Consequently, recitation of a determination that there is no just reason for delay and that the order is final is neither a condition precedent to appellate review of a denial of intervention sought as a matter of right, nor a vehicle to authorize appellate review of a denial of permissive intervention prior to judgment disposing of the whole case.

  12. Ambassador College v. Combs Ky., 636 S.W.2d 305, 307 (1982)
    This was a will contest brought by the heirs of the survivor of a childless couple who executed a new will and deeded several parcels just weeks before his death. The allegations involved issues of undue influence and mental incapacity. Ambassador College, the primary beneficiary of a previously executed, and presumably valid, will sought to intervene in the action. The motion to intervene came after a trial, judgment and reversal on appeal, but before the re-trial. Counsel for the original plaintiffs withdrew from the case and the motion of Ambassador College to intervene was filed. Plaintiffs failed to obtain replacement counsel in the time allotted by the court and the action was dismissed and the motion to intervene was denied, without explanation. The Kentucky Court of Appeals affirmed the dismissal and denial of the motion to intervene and the Kentucky Supreme Court reversed.
    The issue in the second appeal was the timeliness of the motion to intervene. The court recognized “[i]t is well established that persons who are beneficiaries in a prior will have such an interest as entitles them to contest another alleged will of the same testator which would reduce their share in his estate.”
    Timeliness is a question of fact, the determination of which should usually be left to the judge. Dairyland Insurance Company v. Clark, Ky., 476 S.W.2d 202 (1972). In the subject action, however, the trial judge made no finding of timeliness on Ambassador College’s motion to intervene.” The Kentucky Supreme Court observed there had been no re-trial of the matter following remand from the first appeal and timeliness was not a big concern. There would have been no prejudice to the other parties by allowing the intervention. For all practical purposes it looks as if the intervention would have had the effect of substituting Ambassador College for the original plaintiffs, once the prior will had come to light.
  13. Gayner v. Packaging Serv. Corp. of Kentucky, Ky.App., 636 S.W.2d 658, 660 (1982)
    Gemini Laminating was a Kentucky corporation. Packaging Service was the majority owner of Gemini and Chapnick was Gemini’s president. Chapnick and Packaging Services had an agreement that gave Chapnick right of first refusal if Packaging sought to sell any of its Gemini stock. When the time came that Packaging sought to sell stock in Gemini, Chapnick gave notice of his intent to exercise his stock purchase option, but it turned out that Chapnick lacked the funds. Litigation ensued.

    Gayner was an outside investor who was a stranger to the agreements between Chapnick and Packaging, but he was Chapnick’s financial backer with a plan to enable Chapnick’s purchase of the Gemini stock. Gayner sought to intervene in the litigation.

    The Jefferson Circuit Court denied Gayner’s right to intervene because he had not demonstrated a direct, substantial and legally protectable interest in the suit between Packaging and Chapnick sufficient to establish intervention. Later . . . Packaging and Chapnick settled and dismissed the Kentucky suit. This appeal is prosecuted from the order denying intervention in that action.

    The Court of Appeals affirmed the Circuit Court’s denial of intervention, holding that Gaynor’s interest in the litigation was remote, contingent and not permitted by Civil Rule 24.01(b)

    CR 24.01(b), like its federal counterpart, Fed.R.Civ.P. 24, does not permit a contingent interest such as the Gayner claim to be placed in issue by intervention. Gayner’s interest does not qualify as significantly protectable . . . .

    The Court stated the issue was similar to a “real party in interest” question.

  14. Grange Mutual v. McDavid, Ky., 664 S.W.2d 931 (1984)
  15. Donald v. City of Glenview, Ky. App., 723 S.W.2d 861 (1986)
  16. Rosenbalm v. Commercial Bank of Middlesboro, Ky.App., 838 S.W.2d 423, 427 (1992)
    In the early 1980’s the Bell County Waste District devised a plan to convert garbage into electricity and borrowed some $400,000 from the bank for the project. The plan did not work as planned and the bank loan could not be repaid. The bank sued and obtained a default judgment in 1984. The powers that be in Bell County were adamantly and publicly opposed to a tax levy to pay the debt, and the debt remained unpaid.
    In 1989 the bank obtained a court order requiring either a tax levy or the issuance of a municipal bond to pay the judgment debt. When the tax bills with the additional levy went out, taxpayers very promptly sought to intervene, as a matter of right, in the action to contest the constitutionality of the original debt.  The taxpayers also moved to set aside the 1984 default judgment. The court observed that the original lawsuit was well publicized at the time, and the taxpayers should have known. The taxpayers were denied the opportunity to seek relief and this appeal followed. A primary issue was the timeliness of the taxpayers’ intervention.
    The Court of Appeals stated the general rule:

    An attempted intervention clearly must be undertaken in a timely fashion. The timeliness of a motion for intervention is a question of fact, the determination of which ordinarily falls to the presiding judge. Ambassador College v. Combs, Ky.App., 636 S.W.2d 305, 307 (1982). An applicant who moves for intervention after judgment carries a special burden of justifying the apparent lack of timeliness. Monticello Elec. Plant Bd. v. Board of Educ., Ky., 310 S.W.2d 272, 274 (1958).

    Although there is considerable discussion of taxpayer suits, the rights of taxpayers and equitable principles of laches, an important part of the court’s reversal of the Circuit Court’s decision was the fact that taxpayers had no present complaint until the tax was actually imposed, in line with the general rule that intervention will not be allowed for parties with only conditional or contingent interests at stake.
  17. Arnold v. Commonwealth ex rel. Chandler, 62 SW 3d 366(Ky.) 2001 2001-SC-0288-TG
    The Tobacco Master Settlement Agreement (MSA) was entered in November 1998  between the largest United States tobacco companies and the attorneys general of 46 states, including Kentucky. The settlement arose from the states’ claims for reimbursement from the tobacco companies for Medicaid healthcare expenditures resulting from tobacco related illness. Kentucky implemented its portion of the settlement by filing a civil action in the Franklin Circuit Court against the tobacco companies and then immediately dismissing the action, with prejudice, as settled. Subsequently, the following year, the Kentucky Legislature enacted a Bill directing how the settlement proceeds would be allocated and used.
    More than a year after the dismissal of the civil action, some 46 individuals claiming to be Medicaid recipients suffering from smoking-related illness sought to intervene in the action to assert a right to a portion of the settlement. The Circuit Court overruled  the motion to intervene as being untimely.
    The applicants for intervention argued they did not know they would not individually and directly benefit from the settlement until the Kentucky Legislature acted, and that the settlement agreement prejudiced their individual claims for compensation.
    Although the Kentucky Supreme Court spoke to the timeliness issue generally, the crux of the decision to affirm the denial of intervention was the fact the settlement agreement specifically preserved the rights of individual claimants to proceed against the tobacco companies directly. Essentially, without saying it this way, intervention would have done nothing to protect the intervenors’ rights. There was no indication the applicants for intervention had any legitimate claim to the settlement proceeds.
  18. Baker v. Webb, 127 SW 3d 622 – Ky: Supreme Court 2004
    The blood relatives (cousins) of a minor child sought to intervene in an adoption proceeding under Civil Rule 24.01, as of right. The Circuit Court overruled the motion and the Supreme Court of Kentucky reversed.
    Although 922 KAR 1:140 states a preference for adoptions by qualified relatives, there is no absolute priority. The applicants for intervention did not have a right to adopt, but they did have a regulatory expectation that they would be appropriately considered for adoption. This the Cabinet for Families and Children did not do, in apparent violation if its own rules. The court found the Cabinet’s procedural failure provided a sufficient legal interest compelling intervention in the adoption proceeding.
    A strong dissenting opinion from Justice Keller focused upon the fact the motion to intervene was procedurally insufficient in that it was not accompanied by “a pleading setting forth the claim or defense for which intervention is sought,” as required by Civil Rule 24.03.
  19. Carter v. Smith, 170 SW 3d 402 – Ky: Court of Appeals 2004
    A complaint filed on December 2, 2002 alleged violations of Kentucky’s Open Meetings Act by a school board. On December 19, 2002 the school superintendent resigned his position, allegedly contingent upon a one-year consulting contract with the school board. In February, the court allowed Plaintiff to file an amended [sic] complaint to add a claim the December 19, 2002 board meeting also violated the Open Meetings Act with a request to void the consulting contract. Plaintiff also moved for a temporary injunction requiring payments on the consulting contract to be diverted to an escrow account pending final judgment. On April 9 the former superintendent made a motion to intervene in open court, which motion was subsequently reduced to writing.
    The trial court denied the motion to intervene on the grounds the validity of the consulting contract was contingent upon compliance with the Open Meetings Act and therefore too remote from the pending action; and that the application for intervention was untimely. The Kentucky Court of Appeals reversed. As an initial matter the court observed that the motion to intervene was base on both Civil Rule 24.01, interventions of right, and Civil Rule 24.02, permissive intervention. The appeal was limited to the denial of the Civil Rule 24.01 motion. which was a final and appealable order.

    To establish an intervention under Civil Rule 24.01, an applicant must:

    • Make a timely application;
    • Show an interest relating to the subject of the action;
    • Show the ability to protect this interest may be impaired or impeded in the absence of intervention; and
    • Show that none of the existing parties could adequately represent his interests.

    On the issue of timeliness, the court reiterated the five-factor test in Grubbs v. Norris, 870 F.2d 343 (6th Cir.1989). and Triax Co. v. TRW, Inc, 724 F.2d 1224 (6th Cir.1984):

    1. The point to which the suit has progressed;
    2. The purpose for which intervention is sought;
    3. The length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case;
    4. The prejudice to the original parties due to the proposed intervenor’s failure, after he or she knew or reasonably should have known of his or her interest in the case, to apply promptly for intervention; and
    5. The existence of unusual circumstances militating against or in favor of intervention.

    The standard of review of the denial of a motion to intervene as untimely is abuse of discretion or clearly erroneous. The court conducted a de novo review of the record and the denial of Carter’s motion to intervene, and held that the decision was clearly erroneous

  20. Commonwealth of Kentucky  v. LJP, 316 SW 3d 871 – Ky: Supreme Court 2010
    The Cabinet for Health and Family Services filed a petition for the involuntary termination of parental rights. Some four months later, while the petition for involuntary termination was pending, the parents filed in the same action a petition for voluntary termination of parental rights conditioned upon the child being placed with the biological grandparents for adoption. Thereupon, the grandparents immediately sought to intervene. The Family Court denied the intervention, reasoning the petition for involuntary termination preempted the petition for voluntary termination. The Court of Appeals reversed and upon discretionary review the Supreme Court of Kentucky reversed the Court of Appeals.
    The Supreme Court held the mere filing of an involuntary termination petition by itself did not deprive the parents of their right to seek voluntary termination or to consent to adoption. The Court also held that the procedures for termination of parental rights and the procedures for adoption could not so easily be collapsed into a single unified proceeding.
    The grandparents were seeking to intervene in an adoption proceeding which did not exist. This was a termination proceeding into which there was no right to intervene. The Family Court denial of intervention was affirmed, but for different reasons.
  21. Hazel Enterprises v. Community Financial Bank, 382 SW 3d 65 – Ky: Court of App. 2012
    This was a foreclosure action. After the Commissioner’s sale of the property and the court’s approval of the sale and the Commissioner’s report for the distribution of the proceeds of the sale, including the payment of past due property taxes, Hazel bought the tax delinquency certificate. Then Hazel moved to intervene in the foreclosure action to claim $1050.62, for interest, attorney fees, and administrative fees in addition to $588.84 in actual taxes.

    The motion to intervene was denied and the Court of Appeals affirmed the denial. In an opinion remarkably devoid of any overt scoffing, the court observed that prejudice to the other parties to an action is an additional consideration in a motion to intervene, particularly with a post-judgment motion to intervene.

    [R]e-opening the litigation to account for Hazel’s late acquired interests clearly would have prejudiced the parties where the circuit court had already made a final determination with respect to the rights of all parties involved. Given that timeliness is a factual issue generally left to the discretion of the trial court and under the facts of this case, we find no abuse of discretion.

  22. Boggs v. Commonwealth of Kentucky, EX REL. BOGGS, Ky: Court of Appeals 2012
    A Kentucky county attorney has a right to intervene in any existing action concerning child support as between the child’s parents. When a county attorney files a motion to intervene for purposes of securing child support, the motion must be granted. However, the county attorney cannot show up one day, change the case caption to include the Commonwealth as a party and start filing motions. There has to be an actual motion to intervene.
  23. Interactive Gaming Council v. Commonwealth, Ky: Court of Appeals 2014
    The Commonwealth of Kentucky commenced an in rem action seeking the forfeiture of numerous internet domain names as being gambling devices. Interactive Gaming Counsel sought to intervene in the action as an association representing online gambling operations, some of which owned domain names subject to forfeiture. The issue is the law of associational standing which just happened to arise in the context of a motion to intervene. The Court of Appeals decision provides an enlightening and scholarly discussion of associational standing in Kentucky, but it does not have much to do with the issues distinctly related to intervention.
  24. Commonwealth of Kentucky v Shepherd Case No. 2011-SC-000482-MR (KY S.Ct., Apr. 26, 2012)
    Citizen suits to enforce the federal Clean Water Act must be filed in federal District Court. Before filing such a action, 60 day notice must be given of the intention to file, and if state or federal agencies commence an enforcement action prior to the expiration of the 60 days, the citizen plaintiffs are barred from proceeding. That’s what happened here.

    When the Commonwealth of Kentucky’s Energy and Environment Cabinet filed an enforcement action in the Franklin Circuit Court, it also filed a proposed consent decree. The citizen plaintiffs moved to intervene in the action to object to the proposed consent decree. Opposition to the intervention was based upon the idea the presence of the citizen plaintiffs as parties in the state court action would collide with the exclusive jurisdiction of federal courts provided by 33 USC 1365, and it would deprive the Franklin Circuit Court of jurisdiction. The Supreme Court of Kentucky did not agree and allowed the intervention, at least to the extent of commenting upon and criticizing the proposed consent decree.

    In sum, the trial court’s ordinary authority to permit sufficiently interested parties to intervene in a suit properly before it has not been preempted here, at least not completely, by federal law. On the contrary, federal law encourages the states to permit interested citizens to intervene and be heard in state court enforcement proceedings under the state analogs of the federal environmental protection statutes. To the extent, therefore, that the trial court has allowed the Citizen Plaintiffs to intervene in the Cabinet’s enforcement action so as to accord them an opportunity to challenge the proposed consent judgment, it has not trespassed upon the federal courts’ exclusive jurisdiction. Whether the trial court would likewise have jurisdiction to entertain the Citizen Plaintiffs’ own claims under the Clean Water Act is a much harder question, but one we need not address at this time since the trial court has not of yet and may not ever assert that jurisdiction.

    The court did not once mention the possibility that “commencing a civil action” anywhere but in a federal district court (33 USC 1365) may be categorically different from intervening in an action commenced by another.
  25. Ipock v. Ipock, 403 SW 3d 580 – Ky: Court of Appeals 2013

Written by Tom Fox

March 30, 2014 at 12:16 pm

Legal Reagonalism and Latin Lingo Lessons: Scire Facias

leave a comment »

The writ of scire facias was created by the English Parliament in 1285 and it migrated to America as part of our English common law tradition.  In modern times scire facias has been mostly abolished in the United States, with a few exceptions mainly in the Old South where the love of tradition combines with a playful fondness for baffling the uninitiated. Anyone served with a writ of scrie facias knows he or she has been hit by something very important even while being hard pressed to know exactly what it is.

Roughly, the Latin ‘scrie facias’ means ‘tell them.’ Generally, the writ of scrie facias means “tell them (or serve notice) to do something, or else.” North of the Mason-Dixon Line a similar court order might be called an Order to Appear and Show Cause why something should or should not be done. Commonly, a party might be ordered to appear and show cause why he or she should not be held in contempt of court.

Some Tennessee courts call their conditional judgments in garnishment a scrie facias, at least in the legal forms published online.  The most charming and practical part of the Tennessee use of scrie facias is the fact that the person serving the writ literally reads the notice aloud to the person being served. They tell them right to their face.

Written by Tom Fox

March 6, 2014 at 8:38 am

What Is a Conditional Judgment in Garnishment?

with one comment

Generally speaking, a conditional judgment is one that depends upon contingent future events. An example of this might be when a court uses a conditional judgment as a threat for the purpose of coercion, as with, “If the party does not appear in court by the date specified, then this judgment will become final.”

The use of conditional judgments in judicial garnishment proceedings arises when the third-party garnishee fails to respond to a garnishment order and summons. As a reminder, the garnishee is neither the creditor nor debtor in the debt collection garnishment process. The garnishee is the third party who owes money to the debtor, like the debtor’s employer who owes wages to the debtor or like a bank holding the debtor’s money in a deposit account.

Normally when a third-party garnishee receives a court issued garnishment order and summons there is a time limit within which the garnishee must formally answer to the court.  The most common ways a garnishee answers a garnishment order are, (1) “Sorry, but we do not have any of the debtor’s property nor do we owe the debtor any money. Please go away.”, or (2) “Yes, we have $xxxx.xx of debtor’s money. What do you want us to do with it?”

Sometimes, however, the garnishee simply ignores the garnishment order and summons and does not provide the court with any answer at all. This is where a conditional judgment may come into play, in some states.

Tennessee, for example, has a statute specifically providing for a conditional judgment if the garnishee fails to appear or answer the garnishment order. TC 26-2-209 provides:

The date garnishee’s answer is received by the court clerk shall be noted on the docket book in the proper manner, whether or not the answer discloses any property subject to garnishment. If the garnishee fails to appear or answer, a conditional judgment may be entered against the garnishee for the plaintiff’s debt, upon which a notice shall issue to the garnishee returnable at such time as the court may require, to show cause why judgment final should not be rendered against the garnishee. On failure of the garnishee to appear and show cause, the conditional judgment shall be made final, and execution awarded for the plaintiff’s entire debt and costs. [emphasis added]

The threat of this type of conditional judgment is that the whole of the defendant’s debt will be piled up the garnishee directly, whether anything is owed by the garnishee to the debtor or not, simply because the garnishee did not do what garnishees are supposed to do.

It has the look of a very effective way to compel the garnishee’s compliance. By showing up in court and answering the garnishment order, the garnishee can avoid a financially painful result. Thus, the judgment is conditional upon the garnishee’s actions.

Written by Tom Fox

March 6, 2014 at 1:55 am

Notes On Georgia’s Statutory Garnishment Forms

leave a comment »

Georgia Code § 18-4-66, Forms for postjudgment garnishment, provides seven specific legal forms for use in Georgia post-judgment garnishment court proceedings:

For the purpose of Articles 1 through 5 of this chapter, the following forms are declared to be sufficient for garnishment after judgment, provided that nothing in this Code section shall be construed to require the use of particular forms in any proceeding under this article: See: Georgia Garnishment Statutes

For the sake of legibility and usefulness, I have formatted these seven forms in a way that is difficult to do on a web page, as downloadable and printable PDF files:

(1) Garnishment affidavit (LINK).

(2) Summons of garnishment. (LINK)

(3) Defendant’s traverse and order thereon. (LINK)

(4) Answer of garnishee. (LINK)

(5) Plaintiff’s traverse. (LINK)

(6) Release of garnishment, (LINK)

(7) Attachment to summons of garnishment upon a financial institution. (LINK)

§ 18-4-66 makes it clear that these particular forms are sufficient for use in Georgia garnishment proceedings, but they are not exclusive or mandatory.

Form numbers three and five, above, are traverses. The word ‘traverse’ is an ancient common law term that simply means a general denial. For example, form number three, the defendant’s traverse, is not a verified pleading, it can be signed by either the defendant’s or the defendant’s attorney and all it states is this:

Now comes the defendant in the above-styled case and traverses the plaintiff’s affidavit by saying the same is untrue or legally insufficient.

It is likewise the same way with form five, the plaintiff’s traverse of the defendant’s answer.

The way these forms are structured, as general denials without specific verified factual allegations, the whole process is designed to culminate in a hearing where actual evidence is presented to a judge. If the parties have any hope of having the issue decided on the pleadings without the necessity of a court hearing, using these forms is not the way to accomplish it.

Written by Tom Fox

March 5, 2014 at 9:15 am

Florida Garnishment Statutes

leave a comment »

Florida Statutes | Title VI – Civil Practice | Chapter 77 – Garnishment

Link to Florida Statutes Chapter 77

77.01 Right to writ of garnishment.—
Every person or entity who has sued to recover a debt or has recovered judgment in any court against any person or entity has a right to a writ of garnishment, in the manner hereinafter provided, to subject any debt due to defendant 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. The officers, agents, and employees of any companies or corporations are third persons in regard to the companies or corporations, and as such are subject to garnishment after judgment against the companies or corporations.

77.02 Garnishment in tort actions.—
Before judgment against a defendant no writ of garnishment shall issue in any action sounding in tort.

77.03 Issuance of writ after judgment.—
After judgment has been obtained against defendant but before the writ of garnishment is issued, the plaintiff, the plaintiff’s agent or attorney, shall file a motion (which shall not be verified or negative defendant’s exemptions) stating the amount of the judgment. The motion may be filed and the writ issued either before or after the return of execution.

77.0305 Continuing writ of garnishment against salary or wages.—
Notwithstanding any other provision of this chapter, if salary or wages are to be garnished to satisfy a judgment, the court shall issue a continuing writ of garnishment to the judgment debtor’s employer which provides for the periodic payment of a portion of the salary or wages of the judgment debtor as the salary or wages become due until the judgment is satisfied or until otherwise provided by court order. A debtor’s status as an employee of the state or its agencies or political subdivisions does not preclude a judgment creditor’s right to garnish the debtor’s wages. For the purposes of this section, the state includes the judicial branch and the legislative branch as defined in s. 216.011. The state, for itself and for its agencies and subdivisions, waives sovereign immunity for the express and limited purpose necessary to carry out this section. The court shall allow the judgment debtor’s employer to collect up to $5 against the salary or wages of the judgment debtor to reimburse the employer for administrative costs for the first deduction from the judgment debtor’s salary or wages and up to $2 for each deduction thereafter. The funds collected by the state under this section must be deposited in the Department of Financial Services Administrative Trust Fund for purposes of carrying out this section.

77.031 Issuance of writ before judgment.—
Before judgment has been obtained by the plaintiff against the defendant:
(1) A writ of garnishment shall be issued by the court or by the clerk on order of the court.
(2) To obtain issuance of the writ, the plaintiff, or the plaintiff’s agent or attorney, shall file in the court where the action is pending a verified motion or affidavit alleging by specific facts the nature of the cause of action; the amount of the debt and that the debt for which the plaintiff sues is just, due, and unpaid; that the garnishment is not sued out to injure either the defendant or the garnishee; and that the plaintiff believes that the defendant will not have in his or her possession, after execution is issued, tangible or intangible property in this state and in the county in which the action is pending on which a levy can be made sufficient to satisfy the plaintiff’s claim. The writ of garnishment shall set forth a notice to the defendant of the right to an immediate hearing for dissolution of such writ pursuant to s. 77.07. Upon issuance of the writ of garnishment, the clerk of the court shall provide by mail a copy of the writ to the defendant.
(3) Except when the plaintiff has had an attachment writ issued, no writ of garnishment before judgment shall issue until the plaintiff, or the plaintiff’s agent or attorney, gives a bond with surety to be approved by the clerk payable to the defendant in at least double the amount of the debt demanded, conditioned to pay all costs, damages, and attorney’s fees that the defendant sustains in consequence of the plaintiff’s improperly suing out the writ of garnishment. A garnishment bond is not void or voidable because of an informality in it, nor shall the obligors be discharged because of the informality, even though the garnishment is dissolved because of the informality.
(4) The motion or pleading need not negative any exemptions of the defendant.

77.04 Writ; form.—
The writ shall require the garnishee to serve an answer on the plaintiff within 20 days after service of the writ stating whether the garnishee is indebted to the defendant at the time of the answer, or was indebted at the time of service of the writ, plus up to 1 business day for the garnishee to act expeditiously on the writ, or at any time between such times; in what sum and what tangible or intangible personal property of defendant the garnishee has in his or her possession or control at the time of his or her answer, or had at the time of the service of the writ, or at any time between such times; and whether the garnishee knows of any other person indebted to defendant, or who may have any of the property of defendant in his or her possession or control. The writ shall state the amount named in plaintiff’s motion. If the garnishee is a business entity, an authorized employee or agent of the entity may execute, file, and serve the answer on behalf of the entity.

77.041 Notice to individual defendant for claim of exemption from garnishment; procedure for hearing.—
(1) Upon application for a writ of garnishment by a plaintiff, if the defendant is an individual, the clerk of the court shall attach to the writ the following “Notice to Defendant”:


The Writ of Garnishment delivered to you with this Notice means that wages, money, and other property belonging to you have been garnished to pay a court judgment against you. HOWEVER, YOU MAY BE ABLE TO KEEP OR RECOVER YOUR WAGES, MONEY, OR PROPERTY. READ THIS NOTICE CAREFULLY.

State and federal laws provide that certain wages, money, and property, even if deposited in a bank, savings and loan, or credit union, may not be taken to pay certain types of court judgments. Such wages, money, and property are exempt from garnishment. The major exemptions are listed below on the form for Claim of Exemption and Request for Hearing. This list does not include all possible exemptions. You should consult a lawyer for specific advice.


If you request a hearing, it will be held as soon as possible after your request is received by the court. The plaintiff or the plaintiff’s attorney must file any objection within 8 business days if you hand delivered to the plaintiff or the plaintiff’s attorney a copy of the form for Claim of Exemption and Request for Hearing or, alternatively, 14 business days if you mailed a copy of the form for claim and request to the plaintiff or the plaintiff’s attorney. If the plaintiff or the plaintiff’s attorney files an objection to your Claim of Exemption and Request for Hearing, the clerk will notify you and the other parties of the time and date of the hearing. You may attend the hearing with or without an attorney. If the plaintiff or the plaintiff’s attorney fails to file an objection, no hearing is required, the writ of garnishment will be dissolved and your wages, money, or property will be released.



I claim exemptions from garnishment under the following categories as checked:
1. Head of family wages. (Check either a. or b. below, if applicable.)
a. I provide more than one-half of the support for a child or other dependent and have net earnings of $750 or less per week.
b. I provide more than one-half of the support for a child or other dependent, have net earnings of more than $750 per week, but have not agreed in writing to have my wages garnished.
2. Social Security benefits.
3. Supplemental Security Income benefits.
4. Public assistance (welfare).
5. Workers’ Compensation.
6. Reemployment assistance or unemployment compensation.
7. Veterans’ benefits.
8. Retirement or profit-sharing benefits or pension money.
9. Life insurance benefits or cash surrender value of a life insurance policy or proceeds of annuity contract.
10. Disability income benefits.
11. Prepaid College Trust Fund or Medical Savings Account.
12. Other exemptions as provided by law. (explain)

I request a hearing to decide the validity of my claim. Notice of the hearing should be given to me at:


Telephone number:

I CERTIFY UNDER OATH AND PENALTY OF PERJURY that a copy of this CLAIM OF EXEMPTION AND REQUEST FOR HEARING has been furnished by (circle one)United States mail or hand delivery on   (insert date)  , to:   (insert names and addresses of Plaintiff or Plaintiff’s attorney and of Garnishee or Garnishee’s attorney to whom this document was furnished)  .

I FURTHER CERTIFY UNDER OATH AND PENALTY OF PERJURY that the statements made in this request are true to the best of my knowledge and belief.

Defendant’s signature




Sworn and subscribed to before me this    day of   (month and year)  , by   (name of person making statement)

Notary Public/Deputy Clerk

Personally Known   OR Produced Identification

Type of Identification Produced
(2) The plaintiff must mail, by first class, a copy of the writ of garnishment, a copy of the motion for writ of garnishment, and, if the defendant is an individual, the “Notice to Defendant” to the defendant’s last known address within 5 business days after the writ is issued or 3 business days after the writ is served on the garnishee, whichever is later. However, if such documents are returned as undeliverable by the post office, or if the last known address is not discoverable after diligent search, the plaintiff must mail, by first class, the documents to the defendant at the defendant’s place of employment. The plaintiff shall file in the proceeding a certificate of such service.
(3) Upon the filing by a defendant of a sworn claim of exemption and request for hearing, a hearing will be held as soon as is practicable to determine the validity of the claimed exemptions. If the plaintiff or the plaintiff’s attorney does not file a sworn written statement that answers the defendant’s claim of exemption within 8 business days after hand delivering the claim and request or, alternatively, 14 business days if the claim and request were served by mail, no hearing is required and the clerk must automatically dissolve the writ and notify the parties of the dissolution by mail.

77.055 Service of garnishee’s answer and notice of right to dissolve writ.—
Within 5 days after service of the garnishee’s answer on the plaintiff or after the time period for the garnishee’s answer has expired, the plaintiff shall serve, by mail, the following documents: a copy of the garnishee’s answer, and a notice advising the recipient that he or she must move to dissolve the writ of garnishment within 20 days after the date indicated on the certificate of service in the notice if any allegation in the plaintiff’s motion for writ of garnishment is untrue. The plaintiff shall serve these documents on the defendant at the defendant’s last known address and any other address disclosed by the garnishee’s answer and on any other person disclosed in the garnishee’s answer to have any ownership interest in the deposit, account, or property controlled by the garnishee. The plaintiff shall file in the proceeding a certificate of such service.

77.06 Writ; effect.—
(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.
(3) In any case where a garnishee in good faith is in doubt as to whether any indebtedness or property is required by law to be included in the garnishee’s answer or retained by it, the garnishee may include and retain the same, subject to the provisions of s. 77.19 and subject to disposition as provided in this chapter, and in such case the garnishee shall not be liable for so doing to the defendant or to any other person claiming the same or any interest therein or claiming to have sustained damage on account thereof.
(4) Service of a writ on a garnishee shall render him or her liable as provided in this chapter in any fiduciary or representative capacity held by him or her if the fiduciary or representative capacity is specified in the writ.

77.061 Reply.—
When any garnishee answers and plaintiff is not satisfied with the answer, he or she shall serve a reply within 20 days thereafter denying the allegations of the answer as he or she desires. On failure of plaintiff to file a reply, the answer shall be taken as true and on proper disposition of the assets, if any are disclosed thereby, the garnishee is entitled to an order discharging him or her from further liability under the writ.

77.07 Dissolution of writ.—
(1) The defendant, by motion, may obtain the dissolution of a writ of garnishment, unless the petitioner proves the grounds upon which the writ was issued and unless, in the case of a prejudgment writ, there is a reasonable probability that the final judgment in the underlying action will be rendered in his or her favor. The court shall set down such motion for an immediate hearing. If the writ is dissolved, the action then shall proceed as if no writ had been issued.
(2) The defendant and any other person having an ownership interest in the property, as disclosed by the garnishee’s answer, shall file and serve a motion to dissolve the garnishment within 20 days after the date indicated in the certificate of service on the defendant and such other person of the plaintiff’s notice required by s. 77.055, stating that any allegation in plaintiff’s motion for writ is untrue. On such motion this issue shall be tried, and if the allegation in plaintiff’s motion which is denied is not proved to be true, the garnishment shall be dissolved. Failure of the defendant or other interested person to timely file and serve the motion to dissolve within such time limitation shall result in the striking of the motion as an unauthorized nullity by the court, and the proceedings shall be in a default posture as to the party involved.
(3) If the motion denies the debt demanded before judgment, the judge may require pleadings on motion of either party on the debt demanded to be filed in such time as he or she fixes.
(4) The issue, if any, raised by the pleadings shall be tried at the same time as the issue, if any, made by defendant’s motion to plaintiff’s motion.
(5) If the plaintiff fails to file a dismissal or motion for final judgment within 6 months after filing the writ of garnishment, the writ shall automatically be dissolved and the garnishee shall be discharged from further liability under the writ. The plaintiff has the right to extend the writ for an additional 6 months by serving the garnishee and the defendant a notice of extension and filing in the underlying proceeding a certification of such service.

77.08 Writ; jury trial.—
On demand of either party a jury summoned from the body of the county shall be impaneled to try the issues.

77.081 Default; judgment.—
(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 interest and costs. No final judgment against a garnishee shall be entered before the entry 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 the garnishee’s costs entered.

77.082 No reply filed.—
If no reply to garnishee’s answer is served, garnishee may surrender any goods, chattels, or effects of defendant in garnishee’s hands or possession to the sheriff and may pay any money or debt into registry of court. In such event or if garnishee prevails in the trial of any reply and after proper disposition of any property disclosed by garnishee’s answer, the court shall discharge him or her from further liability under the writ.

77.083 Judgment.—
Judgment against the garnishee on the garnishee’s answer or after trial of a reply to the garnishee’s answer shall be entered for the amount of his or her liability as disclosed by the answer or trial. Instead of scire facias, the court may subpoena the garnishee to inquire about his or her liability to or possession of property of the defendant. No judgment in excess of the amount remaining unpaid on the final judgment against the defendant or in excess of the amount of the liability of the garnishee to the defendant, whichever is less, shall be entered against the garnishee.

77.13 Execution on garnishee’s refusal to surrender property.—
If garnishee will not surrender the personal property belonging to defendant, provided he or she has the power to do so, and which garnishee has admitted is in his or her possession, the court may order execution issued against garnishee for the unpaid amount of plaintiff’s judgment against defendant. The officer shall sell garnishee’s property as under other executions. Garnishee may release his or her property from the levy and sale by surrendering the property of defendant to the officer levying the execution at the time appointed for the sale of garnishee’s property so levied on, or at any time before the day of the sale and by paying the costs of the proceedings to sell up to the time of the surrender.

77.14 Disposition of property surrendered by garnishee.—
When any garnishee has any of the personal property of defendant in his or her possession or control and surrenders it, the sheriff shall receive the property and sell it under the execution against defendant.

77.15 Proceedings against third persons named in answer.—
If the answer of garnishee shows that there is any of defendant’s personal property in the possession or control of any person who has not been garnisheed, on motion of plaintiff a writ of garnishment shall issue against the person having personal property of the defendant and the person shall answer and be liable as other garnishees.

77.16 Claims by third persons to garnisheed property.—
(1) If any person other than defendant claims that the debt due by a garnishee is due to that person and not to defendant, or that the property in the hands or possession of any garnishee is that person’s property and shall make an affidavit to the effect, the court shall impanel a jury to determine the right of property between the claimant and plaintiff unless a jury is waived.
(2) If the verdict is against the claimant, plaintiff shall recover costs. If the verdict is in favor of the claimant, the claimant shall recover costs against plaintiff.
(3) If the claim is interposed after a levy on property, the officer making the levy shall return the execution with the officer’s levy thereon and the affidavit of the claimant to the court from which execution issued, and the proceedings shall be as in other cases of claims made to property taken on execution.

77.17 Compensation to garnishee.—
The garnishee shall be allowed the pay of a witness for the garnishee’s attendance out of the debt owed to defendant or the property in the garnishee’s possession. If there is no debt or property in the garnishee’s possession, the allowance shall be against plaintiff.

7.19 Amount retained by garnishee.—
No garnishee who is indebted to or has in his or her possession the money of a person whose money or credits may be garnisheed shall retain out of the money more than double the amount which the writ of garnishment specifies as the amount plaintiff expects to recover or more than double the amount of the judgment plaintiff has recovered.

77.22 Before judgment; effect of judgment for defendant.—
(1) If the judgment is for defendant in the main action, plaintiff shall pay all costs which have accrued in consequence of suing out a writ of garnishment before judgment and the money or property brought into the registry of the court or custody of the officer thereby inures to the benefit of and shall be controlled by defendant as completely as though it had been rendered in defendant’s favor.
(2) If plaintiff dismisses his or her action or has a judgment against him or her on the trial, the judgment against garnishee shall become a nullity and garnishee shall have execution for garnishee’s costs against plaintiff.

77.24 Before judgment; discharge.—
At any time before the entry of judgment, a defendant whose property has been garnisheed may secure its release by giving a bond with surety to be approved by the clerk in at least double the amount claimed in the complaint with interest and costs, or if the value of the property garnisheed is less than this amount, then in double the value, conditioned to pay any judgment recovered against the defendant in the action with interest and costs, or so much thereof as shall equal the value. On the approval of the bond the court shall discharge the garnishment and release the property. The order shall become effective on its filing with the bond. If garnishee admits a debt to or possession of property of defendant in excess of a sum sufficient to satisfy plaintiff’s claim, on motion of defendant and notice to plaintiff, the court shall release garnishee from responsibility to plaintiff for any debt to or property of defendant except in a sum deemed by the court sufficient to satisfy plaintiff’s claim with interest and costs.

77.27 No appeal until fees are paid.—
If the writ is dismissed or plaintiff fails to sustain his or her claim, no appeal from the judgment shall be permitted until the attorney’s fee provided in s. 77.28 has been paid into court.

77.28 Garnishment; attorney’s fees, costs, expenses; deposit required.—
Before issuance of any writ of garnishment, the party applying for it shall deposit $100 in the registry of the court which shall be paid to the garnishee on the garnishee’s demand at any time after the service of the writ for the payment or part payment of his or her attorney’s fee which the garnishee expends or agrees to expend in obtaining representation in response to the writ. At the time of deposit, the clerk shall collect the statutory fee provided by s. 28.24(10) in addition to the $100 deposited into the registry of the court. On rendering final judgment, the court shall determine the garnishee’s costs and expenses, including a reasonable attorney’s fee, and in the event of a judgment in favor of the plaintiff, the amount shall be subject to offset by the garnishee against the defendant whose property or debt owing is being garnished. In addition, the court shall tax the garnishee’s costs and expenses as costs. Plaintiff may recover in this manner the sum advanced by plaintiff and paid into registry of court, and if the amount allowed by the court is greater than the amount of the deposit, together with any offset, judgment for the garnishee shall be entered against the party against whom the costs are taxed for the deficiency.

Written by Tom Fox

March 2, 2014 at 12:36 pm