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Agenda 06/28/2016 Item #10B 6/28/2016 10.B. EXECUTIVE SUMMARY Report to the Board of County Commissioners of material omissions by the Clerk of Courts in the Liberty/Brock garnishment action. OBJECTIVE: To establish for the public record that the County is immune from garnishment proceedings for funds owed on a contract with an independent contractor,and that Mr.Pires,attorney for the Clerk,failed to disclose the same in his response to the County's motions to intervene in the Liberty/Brock garnishment action,and,that the Clerk is spending the public's tax dollars to pay Mr. Pires' legal fees to claim that he (the Clerk) believes the garnishment judgement entered against him is valid and that Liberty should retain the public funds he (the Clerk) paid Liberty without Board approval. CONSIDERATIONS: Tony Pires Esq. filed a response to the County's motions in the Liberty/Brock Garnishment case.(See Pires Motion attached). Remarkably,Mr.Pires fails to state that the County is immune from garnishment. In Hernando County v. Warner, the Fifth DCA held that the State and its subdivisions (such as the county) and agencies are immune from garnishment, and that there are no legislative waivers of sovereign immunity regarding sums owed to independent contractors. Remarkably,Mr.Pires fails to state that only the Board of County Commissioners can sue and be sued in the name of the County.(125.15 F.S.) Remarkably, Mr. Pires further fails to state that Liberty had a statutory duty to notice the Board of County Commissioners about the garnishment proceedings against the Clerk for the benefit of Liberty.(77.055 F.S.) Remarkably,Mr.Pires argues that Collier County had actual notice of Liberty's judgement against BQ no later than April 12th, 2016;however,the final hearing on garnishment was on March 31st,two weeks prior to the April 12th board meeting. Whether Liberty had a judgement against BQ Concrete is irrelevant to the BCC. Then Mr. Pires argues that the BCC was noticed on April 2l' when the garnishment judgement was recorded, improperly citing 28.222(3)(a)(c)F.S.and 695.11 F.S.What good would that do if notice is provided after the garnishment hearing and ruling by the court? Mr. Pires withholds applicable laws from the court, as did his predecessor, Mr. Molenaar(Brock's Internal Audit Manager who acted as Brock's attorney at the garnishment hearing). The Clerk is using public tax dollars to defend a private company. Public tax dollars can only be used for a valid public purpose,not for private benefit. The county is immune from this type of garnishment. FISCAL IMPACT: None GROWTH MANAGEMENT IMPACT: None LEGAL CONSIDERATIONS: No formal Board action requested. APPROVED BY:Commissioner Georgia Hiller,District 2 Date: June 28,2016 Packet Page-177- 6/28/2016 10.B. COLLIER COUNTY Board of County Commissioners Item Number: 10.10.B. Item Summary: Report to the Board of County Commissioners of material omissions by the Clerk of Courts in the Liberty/Brock garnishment action. (Commissioner Hiller) Meeting Date: 6/28/2016 Prepared By Name: BrockMaryJo Title: Executive Secretary to County Manager, County Managers Office 6/22/2016 3:59:00 PM Submitted by Title: Executive Secretary to County Manager, County Managers Office Name: BrockMaryJo 6/22/2016 3:59:01 PM Approved By Name: OchsLeo Title: County Manager, County Managers Office Date: 6/22/2016 4:42:08 PM Packet Page -178- 6/28/2016 10.B. Filing#42675148 E-Filed 06/13/2016 04:00:46 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA LIBERTY CONCRETE&MASONRY, INC., A Florida Corporation, Plaintiff, vs. CASE NO:2015-CA-1603 B.Q. CONCRETE, L.L.C., A Florida Limited Liability Company, Defendant, And DWIGHT E. BROCK, as Clerk of the Circuit Court and Comptroller of Collier County, FL INITIAL AND PRELIMINARY RESPONSE TO VARIOUS COLLIER COUNTY MOTIONS ("COUNTY'S MOTIONS") BY DWIGHT E. BROCK AS CLERK OF THE CIRCUIT COURT AND COMPTROLLER OF COLLIER COUNTY. FLORIDA("CLERK") COMES NOW DWIGHT E. BROCK as the Clerk, by and through undersigned counsel, and files this his Initial and Preliminary Response (the"Clerk's Response") to the following three (3) motions (the "County's Motions")filed by Collier County: 1. Collier County's Motion To Intervene filed May 25, 2016, (Docket Entry#53, "Motion To Intervene"). 2. Collier County's Motion For Rehearing filed May 25,2016, (Docket Entry#54,"Motion For Rehearing"). 3. Collier County's Motion For Relief From Final Judgment In Garnishment Pursuant to Fla. R. Civ. P. 1.540 filed June 3, 2016, (Docket Entry #56, "Motion For Relief From Final Judgment"). The Clerk's Response is being made while reserving the right to further amend, modify or supplement the Clerk's Response with additional arguments and materials. No rights, concerns, arguments, positions or objections of the Clerk concerning the County's Motions are waived by anything stated herein or omitted herefrom and the right to present, make and submit additional filings, submittals, arguments and evidence before the court is specifically reserved, 1 FILED: COLLIER COUNTY, DWIGHT E. BR.Pa.c,k.,e,t,..P,a,72,—ei-,..,1,..7,9.,;6/14/2016 11:21:04 AM 6/28/2016 10.B. INTRODUCTION The Clerk's Response is being filed in order to: 1. address the lack of candor by Collier County in the County's Motions; 2. correct inaccurate and incorrect statements made in the County's Motions; 3. provide the Court with accurate additional pertinent facts not provided by Collier County in the County's Motions; and, 4. provide a legal and factual basis supporting the denial of all of the County's Motions. By this Response the Clerk wishes to provide an accurate record and assist the court as it reviews the County's Motions as and when the Court considers and rules upon the County's Motions. As noted above, the Clerk reserves the right to supplement or amend the Clerk's Response. As will be seen by this Clerk's Response, the money that was the subject of the garnishment was remitted by the Clerk only after. 1. the Clerk possessed explicit approval for payment by authorized Collier County employees; 2. an audit of the expenditure(s) by the Clerk in full compliance with Florida law; and lastly, 3, the unanimous and knowing approval by the Board of County Commissioners of Collier County at a duly noticed public meeting of the Board, in conformance and compliance with an existing Agreed Order in another pending lawsuit. PART PRgLIMINARY MATTERS COWER COUNTY IS NOT AN INTERVENOR At the present time Collier County holds no status as an intervenor yet presumptuously characterizes itself as an "intervenor". Intervention can only be granted by the court. Intervention has not yet been granted by the court and further there is no scheduled hearing date for the court to hear the Motion To Intervene. 2 Packet Page -180- 6/28/2016 10.B. THE COURT SHOULD CONDUCT AN EVIDENTIARY HEARING ON THE COUNTY'S MOTIONS Material facts have either been omitted by Collier County or inaccurately characterized/represented in the County's Motions. It unfortunately appears that certain"factual" assertions in the filings made by Collier County to date have been fashioned in an attempt to further a "story line" that matches the political goals of certain county commissioners, all at the taxpayers' expense. It is disingenuous at best that the same Collier County Commission,which in April of 2015, excoriated the Clerk for not paying certain invoices related to BQ Concrete, LLC ("BQ"), a mere fourteen (14) months later, attempts to take the Clerk to task for following a detailed court ordered payment process agreed upon by the Clerk, Collier County, the County Manager and the Collier County Procurement Services Director in an extant agreed court order. That extant agreed court order was not mentioned by Collier County in any of the County's Motions. That extant agreed court order was entered by the Hon. James R. Shenko on July 15, 2015 in Collier County Circuit Court Case #2015-CA-0595, Brock v. Ochs. et al., the "Agreed Order" (See Exhibit A). The Agreed Order was strictly followed by the Clerk in obtaining the approval of the Board of County Commissioners and making the disbursement(s)at issue. The Clerk ensured that all payments of county funds complied with applicable legal requirements and the Agreed Order. The Clerk submits that before the court renders any decision on any of the County's Motion, it is essential that the court conduct an evidentiary hearing. 3 Packet Page -181- 6/28/2016 10.B. THE ROLE OF THE CLERK AS TO TAXPAYERS MONIES, PUBLIC FUNDS It is a settled matter of law in the State of Florida, that the Clerk in Collier County, a non- charter county, is the custodian of all Collier County funds, "A public officer with the right and responsibility to maintain custody of public funds..." and to recover County funds. Article VIII, Section 1(d),Florida Constitution;Alachua County V. Powers,351 So.2d 32,38(Fla. 1977); Brock v. Board of County Commissioners of Collier County, 21 So.3d 844 (Fla. 2D DCA 2009) PART I( SOME BACKGROUND IN THIS MATTER RELATING TO THE GARNISHMENT ACTION As reflected in the Court file in this matter: 1. On October 26, 2015, a Partial Final Judgment was entered against B.Q. Concrete L.L.C. (Docket Entry#23). The Partial Final Judgment was recorded in the Official Records of Collier County on October 27, 2015, Instrument#5187632(Exhibit B) 2. On November 17, 2015, Plaintiff (Liberty Concrete & Masonry, Inc.) after issuance of a Writ of Execution on November 13, 2015 (Docket Entry #25), filed its Motion for Writ of Garnishment, with the Clerk named as Garnishee (Docket Entry#26). 3. On November 20, 2015, a Writ of Garnishment naming the Clerk as Garnishee was issued (Docket Entry#29). 4. On November 25, 2015, the aforesaid Writ of Garnishment was served on the Clerk (Docket Entry#31). 5. On December 8, 2015, the Clerk filed its Answer of Garnishee (Docket Entry #33). In said Answer of Garnishee the Clerk made the following abundantly clear: A. the Board of County Commissioners had not yet approved the expenditure of amounts as great as$234,873.53 to Buddy Quarles/BQ. B. the referenced amounts had not yet been tendered to Buddy Quarles/BQ as the Clerk was in the process of conducting an audit of expenditures to Buddy Quarles/BQ. 4 Packet Page -182- 6/28/2016 10.B. 6. On December 10,2015 Plainliff(Liberty Concrete & Masonry, Inc., "Liberty") filed its Motion for Entry of Final Judgment On Garnishment(Docket Entry#37).The Motion was noticed for a hearing to be held on March 31, 2016 (Docket Entry#38). 7. On March 31, 2016, at the noticed hearing, the Clerk appeared and advised the Court of various factual matters as noted and detailed further below, including but not limited to ensuring that the court knew and understood that until such time as the County Commission had approved payment and the Clerk had approved the expenditure(s), there could not be any disbursement of funds relating to Buddy Querles/BO. 8. On April 14, 2016,counsel for Plaintiff submitted a proposed Final Judgment of Garnishment to the Court (Docket Entry#47). 9. On April 20, 2016 the Court entered its order, Final Judgment of Garnishment (Docket Entry #48). The Final Judgment of Garnishment was rendered on April 20, 2016 and recorded in the Official Records of Collier County on April 21, 2016, Instrument #5255679, See Exhibit C. 10. On May 6, 2016, Plaintiff's counsel sent the court a proposed Agreed Amended Final Judgment of Garnishment ("Amended Final Judgment") where the only change to the Final Judgment of Garnishment of April 21, 2016 was at the end of Paragraph 5, to provide that "statutory interest would continue to accrue after entry of the Garnishment Judgment" (Docket Entry#49). 11. On May 10, 2016 the Court signed the Amended Final Judgment in this action (Docket Entry #50) which was rendered on May 11, 2016. The Amended Final Judgment was recorded in the Official Records of Collier County on May 12, 2016, Instrument #5265036. See Exhibit D. 5 Packet Page -183- 6/28/2016 10.B. 12. In the morning of May 10, 2016, the Board of County Commissioners, after the Final Judgment of Garnishment was rendered on April 20, 2016, and recorded on April 21, 2016 held and conducted a regularly scheduled and duly noticed public meeting. As one of its first orders of business, pursuant to the Agreed Order and having actual knowledge of Plaintiff possessing a judgment against BQ, the Board of County Commissioners unanimously and knowingly approved payments to various vendors, including unanimously and knowingly approving payments to Buddy Quarles/BQ in the total amount of$51,983.40(the"Unanimous BCC Approval"), see Exhibit E, and Part 111 and Part IV below. 13. On May 12, 2016, pursuant to: 1.the Final Judgement and the Amended Final Judgment;2. the Agreed Order; and, 3.the Unanimous BCC Approval;the Clerk remitted the amount of $44,961.25 to Plaintiff. See Exhibit F. 14. On May 13, 2016, Plaintiff filed its Satisfaction of Judgment of Garnishment and Satisfaction of Judgment (Docket Entries#51 and 52). PART II( THE REST OF THE STORY—MORE BACKGROUND COLLIER COUNTY COMMISSION AT PUBLIC MEETING KNOWINGLY APPROVED PAYMENTS RELATING TO BO 15. A. On June 11, 2013, as part of Agenda Item 11C, the Board of County Commissioners approved entering into a contract with BQ as a primary vendor, entering into Contract#12- 5974R (hereinafter "BQ Contract #12-5974R"). Collier County staff, not Clerk's staff, administered and ordered services relating to BQ Contract#12-5974R. B. Previously, on February 19, 2013 and as part of BQ's bid submittal for ITB #12-5974R, BQ submitted a 'W-9" to Collier County Purchasing employees. A true and correct copy of the completed W-9 submitted to Collier County for ITB #12-5974R (which after the award of 6 Packet Page-184- 6/28/2016 10.B. the contract to BQ became part of BO Contract #12-5974R) via facsimile transmittal on February 19, 2013, is attached as Exhibit G (with personal Social Security number redacted). "Buddy Quarles" and"BQ"are botlisted as the"name", i.e.the named payee of Collier County under 80 Contract #12-5974R. C. On February 19, 2013, the information on the completed W-9, with "Buddy Quarles" and "BO" as the "named payee" of Collier County under BQ Contract #12-5974R, was entered without correction or modification into Collier County's SAP payables system by Rhonda Tibbetts, a Collier County Purchasing staff member, See Exhibit H. D.After the award of BQ Contract#12-5974R in 2013 and continuing until the present time, purchase orders, payment request , payables reports and payments relating to BQ Contract #12'5974R listed Buddy Quarles/BQ as the payee. During that same time, the last several years, the payables reports provided to Collier County staff and to the Collier County Commission relating to BQ Contract #12-5974R listed Buddy Quarles as the payee in payables reports that only show and have shown the top line of the payee. All of this is and was well known to Collier County staff and the Board of County Commissioners. The fact that "Buddy Quarles" was listed as the named payee of Collier County in requests for payment approval under BC) Contract #12-5974R was detailed in extensive back-up documents included in Agenda Packets provided to the County Commission, County staff and the public for County Commission meetings during 2013,2014 and 2015. E. Since the submittal of the above-noted W-9 to Collier County Purchasing staff and the entry by then Collier County Purchasing Department employee Rhonda Tibbetts of"Buddy Quarles/BQ"as the named payee of Collier County under BQContract#12-5B74R.payments 7 [ Packet Page -185- 6/28/2016 10.B. for services performed for Collier County relating to BOContract #12-5974Rwere made to Buddy Quarkyo/BO, as the named payee. Collier County, i.e. Collier County staff and the Board of County Commissioners, knew full well that such payments were being made to Buddy Quarles/BQ and for almost three (3) years Collier County staff and the Board of County Commissioners never objected to Buddy Quarles/BQ being the payee for services performed under BQ Contract#125974R. F. Only Collier County employees, i.e.. employees of the Board of County Commissioners, created or prepared the purchase orders that were issued undevBC] Contract #12-5974R. Collier County purchase orders relating to BQ Contract #125974R, in the area marked "Vendmr". listed the name of Buddy Quarles first as the "Vendor". When Collier County employees created purchase orders under BO Contract #12-5974R. they listed Buddy Quarles/BO as the "Vendor". This was and is consistent with the W-9 noted above. See Composite Exhibit I. G. For almost three (3) years, unabated, Collier County employees processed payment requests under BQ Contract #12-5974R and submitted Collier County employee electronic approvals supported by signed attestations to the Clerk certifying that goods and services provided to Collier County were received and verifying that Buddy Ouadea/B{3provided goods and services to Collier County under 60 Contract#1 2-5974R. 16. No later than April 12, 2016,twelve (12) days after the noticed hearing of March 31, 2016 on Plaintiff's Motion for Order Entry of Final Judgment of Garnishment, Collier County and the entire Board of County Commissioners were aware of this lawsuit filed by Liberty against BO. Importantly, the entire Board of County Commissioners also had actual knowledge that Plaintiff had sued BO and had actual knowledge that Plaintiff Liberty possessed a judgment 8 Packet Page 'l86' • 6/28/2016 10.B. against BQ, as the entire County.Commission was notified by Commissioner Georgia Hiller on April 12,2016 ata County Commission Meeting: "COMMISSIONER HILLER: Yes, Liberty has already filed suit. As I understand,*Liberty filed suit against BO and has a iudgment against BO." (See Exhibit J,minutes of April 12,2016 County Commission meeting at p. 194) 17.A. In the morning of May 10, 2016, as one of its first orders of business, af.a regularly scheduled meeting, pursuant to the Agreed Order; having actual knowledge of Plaintiff Liberty possessing a judgment against BQ,and after the Final Judgment of Garnishment was of record,the Board of County Commissioners unanimously approved Consent Agenda Item 16.1.1. See Exhibit K, the documents that were in the May 10, 2016 Agenda for Agenda item 16.1.1. (See Agenda and Minutes, Exhibits L-1 and L-2). By doing so, the Board of County Commissioners unanimously and knowingly approved payments 'to various vendors, including unanimously and knowingly approving payments to Buddy Quarles/BQ in the total amount of$51,983.40(the"Unanimous BCC Approval"). Collier County employees had submitted and have never rescinded or retracted their employee electronic approvals supported by signed attestations to the Clerk certifying that said goods and services provided to Collier County were received and verifying that Buddy Quarles/BQ provided said goods and services to Collier County under BQ Contract #12- 5974R. See Exhibit M. B.All of the documents and materials for Agenda item 16.1.1 (the above noted Exhibit K) were submitted'by the Clerk to the County'Commission, the County'Manager and the County Attorney on May 4, 2016. No objections, questions or concerns,were raised by either the County Commission, the County Manager or the County Attorney. At, said meeting, and to the present date, no.Collier,County employee,rescinded or retracted their electronic approvals or attestations relating to the payment requests totaling said' $51,983.40-underBQ Contract#12-5974R. 9' Packet Page -187- 6/28/2016 10.B. C. Included in the documents and materials for the May 10, 2016 County Commission meeting Agenda item 16.1.1 submitted by the Clerk to the County Commission, the County Manager and the County Attorney on May 4, 2016 is a letter dated May 4, 2016. See below and Exhibit L: "RE: Items To Be Authorized by BCC for Payment May 10,2016". Coimty'of Collier CLERK OF THE CIRCUIT COURT COLLIER COUNT COURTtHOUSE 3299 T.tSttANI TRAIL.E STE a7*U UN'lIIhr E.liraek-atilt of Circuit Chun mase 0.31)2314316 ssrt.ta.t7.341II-5T45 -96r E. (2399 2524179 GYM et Cemu•C iapmam•Aadz Ca+leeun 92 Camay taad, May 4.2016 Board Minutes and Records Collier County 3299 Tamiami Trail l=ast.Ste 400 Naples.FL 34112 RE: Items To Be Authorized by BCC for Payment May 10.2016 Dear Ms.Morgan: Attached arc the special interim reports as provided for in Section 2c of the agrcnl upon order dated July 16.2015 by Judge.tames P..Shenko. Pkase place these reports and this correspondtncc on the"Miscellaneous Correspmukncc"section of the next meeting agenda or the Board of County Commissioners. If you have ally questions,please let me knots. Sincerely. Robin Slider Operations Manager CC: Commissioner Donna Fiala.Chairman of the Board.District 1 Commissioner Georgia hiller,District 2 Commissioner Thomas Henning.District 3 Commissioner Penny Taylor.District 4 Commissioner Tim Nance.District 5 Dwight E.Brock,Clerk orthc Circuit Court Leo Ochs.County Manager Nick Casalanguida.Deputy County Manager Website-v wtv,CollierCierk.conl Ftnait.(At jettin,it)enllierc er:,clam 10 Packet Page -188- • 6/28/2016 10.B. D.Agenda Items 16.J.3 and 16.J.4 on May 10,2016 referenced in the County's Motions have absolutely nothing to do with the Board of County Commissioners approving payments to multiple vendors pursuant to the Agreed Order by the Unanimous BCC Approval of Item 16.1.1 on May 10,2016.The County's Motions'references to Agenda Items 16.J.3 and 16.J.4 are red herrings, inserted in an effort to distract, confuse and mislead the court. PART IV ARGUMENT THE MOTION TO INTERVENE IS UNTIMELY Intervention in garnishment proceedings is not a matter of right. Gigliotti Contracting North, Inc., supra. Intervention after judgment is extraordinary and disfavored. PS Capital, LLC v. Palm Springs Town Homes LLC. 9 So.3d 643 (Fla. 3rd DCA 2009). The right to intervene is limited after a final judgment has been entered Lefkowitz v. Quality Labor Management, LLC., 159 So.2d147 (Fla. 5th DCA 2014). As clearly stated in Lewis v. Turlingtork 499 So.2d 905 (Fla. 1st DCA 1986): "Fla.R.Civ.P.1.230 provides for intervention in pending cases by persons having an interest in the litigation.The general rule is that after litigation has resulted in a final judgment third persons will not be allowed to intervene as parties to the litigation. Dickinson v. Sega!,219 So.2d 435 (Fla.1969); ldacon, Inc. V. Hawes, 432 So.2d 759 (Fla. 1st DCA 1983)._Both of these cases recognize a very narrow exception to the general rule, which exception permits a trial judge to allow intervention after final judgment when to do so would in no way injuriously affect the oriainal litigants and when allowing intervention will further the interests of justice. Both cases make it very clear that the general rule should prevail except in the rarest of circumstances." 11 Packet Page -189- 6/28/2016 10.B. 1 COLLIER COUNTY WAS ON NOTICE Collier County had actual notice no later than April 12, 2016 that the Plaintiff Liberty had obtained a judgment against BQ.Collier County was also on notice,on April 21,2016, as a matter of law,that the Final Judgment of Garnishment had been entered,when it was filed and recorded in the Official Records of Collier County on April 21, 2016. See Instrument#5255679, Exhibit C. Florida has a notice-type recording statute, which functions to give "notice to the world", which includes Collier County, that a property, including personal property is subject to any properly recorded provisions and regulations. The Final Judgment of Garnishment was recorded in the Official Records of Collier County pursuant to sections 28.222(3)(a) and (3)(c), F.S. as the Clerk records the following instruments: (a) Deeds, leases, bills of sale, agreements, mortgages, notices or claims of lien, notices of levy, tax warrants, tax executions, and other instruments relating to the ownersha transfer. or encumbrance of or claims against real or personal property or any interest in it, extensions, assignments, releases, cancellations, or satisfactions of mortgages and liens; and powers of attorney relating to any of the instruments. (c) Judgments. including certified copies of judgments, entered by any court of this state or by a United States court having jurisdiction in this state and assignments, releases, and satisfactions of the judgments. Section 695.11, ES. is the Florida notice-type recording statute,which functions to give"notice to the world" that a property, including personal property, is subject to any properly recorded provisions and regulations: 695.11 Instruments deemed to be recorded from time of filing.— All instruments which are authorizecLor required to be recorded in the office of the clerk of the circuit court of any county in the State of Florida, and which are to be recorded in the "Official, Records" as provided for under s. 28.2a2, and which are filed for recording on or after the effective date of this act,shall be deemed to have been officially accepted by the said officer, and officially recorded. at the time she or he affixed thereon the consecutive 12 Packet Page -190- 6/28/2016 10.B. Oficial register numbers reauired under s. 28.222, and at such Lime shall be notice to all parsons, Collier County as a matter of fact was on actual notice of the underlying action no later than April 12,2016 and was on notice as a matter of law as to the Final Judgment of Garnishment no later than April 21,2016. See Harris v.Aberdeen Property Owners Association, inc., 135 So.3d 365 (Fla 4th DCA 2014). Additionally: "It is equally settled in this jurisdiction that the record of an instrument is constructive notice to creditors and subsequent purchasers not only of its own existence and contents, but of such other facts as those concerned with it would have learned from the record if it had been examined and inquiries suggested by it, duly prosecuted, would have disclosed, and if, in investigation of a title, a purchaser, with common prudence, must have been apprised of another right, notice of that right is presumed as a matter of implied actual notice." Tri-County Produce Distributors, Inc. v. Northeast Production Credit Ass'n, 160 So.2d 46, 51 Fla. 1st DCA 1963) 2 COLLIER COUNTY IS ATTEMPTINg JO INJURE LU3ERTY The Plaintiff Liberty was a subcontractor to BQ on various projects where BQ held contracts with Collier County. As a matter of Florida law, neither BQ or Plaintiff Liberty had the right or ability to file a lien against Collier County property in the event that Collier County failed to pay either BQ or Plaintiff Liberty. Further, Collier County did not require BQ to obtain and file a payment bond on various projects constructed by BQ pursuant to the BQ Contract #12-5974R with Collier County. As a result, Plaintiff Liberty was denied the opportunity to recover monies owed to it by BQ on Collier County projects for the work Liberty performed, except for the garnishment action. 13 Packet Page -191- 6/28/2016 10.B. ,--... AlloWing intervention.bY Collier County at this last stage±4i.,ould belrijiirious to LibertY;one of the original litigants,and.run'contrary to the statement by the County Attorney at:the April 12, 20166 County COmmisslon meeting that Liberty should be paid: . . iiiii:Xiatiidi.1111:.if we had withheld payment.from Bq so that: the county didn't pay for the work and Liberty comes in and says listen, ..wesie the ones who did thework, ultimately I think the:fair thing would be then you'd probably want to run it through a court Just to make sure this entire dispute was taken care. The ultimate',reiiiltrivertild be Liberty should be4ielid if they did the Wadi: (See Exhibit J,minutes of April 12,22016County Commission meeting at p.193) PART V THE EildfiTTO A JURY TRIAL ---. If the court allows Collier County to intervene,and if the parties cannot resolve competing claims to the same garnished funds, a jury must be impaneled to determine those competing rights. Section-;77.16. FS,Gigliotti 6ontraciing Alorth, Inc.,supra. CONCLUSION / Based upon the toregoing;it is respectfully reques -• i ourt• w••nty's Motions. • .,/ BY: .2 didAdirW101 A-71:ny p.P r. , ., Esq. IiihL Florida Bar N. '203671 Attorney For Dwight E Brock 3200 Tainiatni Trail North, Suite 200 Naples, Fiorida:3410p‘ Phone:236649;6556 aplies@wOl-leOal.com' service@wol-lettal.corn - --- - - -- - - - - -- -------------------------- - --- --- ---- ------------ 14 Packet Page -192- . . ' 6/28/2016 10.B. CERTIFICATE OFSERVIC�� I HEREBY CERTIFY that a true and correct copy of the foregoing Initial and Preliminary Response To Collier County's Motions ("County's Motions") By Dwight E. Brock As Clerk Of The Circuit Court And Comptroller Of Collier County, Florida, ("Clerk")has been filed with the Florida Courts E-Filing Portal, which will send an electronic notification to: Counsel for Plaintiff, Anthony M. Lawhon, Esq., Anthony M. Lawhon' P.A., tony|ewhon@|avvhon|aw.ua and Cathyrav@lawhonlaw.us; Counsel for Garnishee, James D. Molenaar, Esq. James.Molenaar@CollierClerk.com; Counsel for Collier County, Colleen M. Greene, Esq., Collier County Attorney's office ooUaenorgene@co|Uieroov.net, nnehanooUiV#coU|ergov'net, and nanoybnad|oy@cV||ierdov.net| Counsel for Collier County, Gregory N. Woods, Esq. and Rachel A. Kerlek, Esq., owonds@vvwnnrd|aw.00rO' dkedek@kYvwnD[o|aw.cmnn, bwisher@wwmrglaw.com; and via U.S. ail to Defendant, B.Q. Concrete, LLC, 6017 Pine Ridge Road, Naples, FL, 34119, on this/3ai-doyofJUNE 2O1G. � WOO7, (/), PA. ( 17../ 8Y: -/ •. . es, ., Esq. Florida Bar No. 'w3G71 Attorney For Dwight E. Brook 3200 Tamiami Trail North, Suite 200 Naples, Florida 34103 Phone: 239-649-6555 8oireo@vvo|'|eoa|.00m aan/ice@vvo|'|ecia{.com 15 Packet Page-193- Statutes& Constitution :View Statutes : Online Sunshine 6/28/2016 10.B. Select Year: 2016 Go The 2016 Florida Statutes Title VI Chapter 77 View Entire Chapter CIVIL PRAC I ICE AND PROCEDURE GARNISHMENT 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 periodforthe ishee'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. History.—s. 1,ch. 85'272; s. 2, ch. 88-295;s.386,ch.95-147;s. 23,ch.2000-258. Copyright 01995'016 The Florida Legislature . Privacy Statement • Contact Us Packet Page 194- Statutes & Constitution :View Statutes : Online Sunshine 6/28/2016 10.B. Select Year: 2016 Go The 2016 Florida Statutes Title XI Chapter 125 View Entire COUNTY ORGANIZATION AND INTERGOVERNMENTAL COUNTY Chapter RELATIONS GOVERNMENT 125.15 To sue and be sued in the name of county.—The county commissioners shall sue and be sued in the name of the county of which they are commissioners. A change in the persons composing the board of county commissioners shall not abate the suit, but it shall proceed as if such change had not taken place. History.—ss. 1, 3,ch. 3242, 1881; RS 580; GS 773; RGS 1493;CGL 2202. Copyright© 1995-2016 The Florida Legislature . Privacy Statement • Contact Us Packet Page-195- http://www.leg.state.fl.us/statutes/index.cf,... .play_Statute&Search_String=... 6/21/2016 6/28/2016 10.B. 705 So.2d 1053 District Court of Appeal of Florida, Fifth District HERNANDO COUNTY,etc.,et al.,Appellant, V. GEORGE WARNER d/b/a George Warner Excavating,Appellee. No.97-0864 Feb.13,1998. Judgment creditor filed motion for writ of garnishment against county to recover funds owed by county on contract with construction company.The Circuit Court, Hernando County,Richard Tombrink,Jr,J.,entered judgment of garnishment,and county appealed.The District Court of Appeal,Antoon,J., held that waiver of sovereign immunity under garnishment statute did not apply. Order reversed. West Headnotes (3)Collapse West Headnotes Change View 1Garnishment Municipal Corporations and Officers Garnishment State or United States Government and Officers State and its subdivisions and agencies are immune from garnishment proceedings absent clear and unequivocal legislative enactment to contrary. 3 Cases that cite this headnote 189Gamishment 1891IPersons and Property Subject to Garnishment 189k17Municipal Corporations and Officers 189Gamishment 1891IPersons and Property Subject to Garnishment 189k18State or United States Government and Officers Packet Page -196- 6/28/2016 10.B. 2Garnishment Municipal Corporations and Officers County is subject to garnishment proceedings pursuant to waiver of sovereign immunity under garnishment statute when judgment debtor is employee of county and judgment debtor is owed wages or salary for work performed on or after effective date of garnishment statute.West's F.S.A. §77.0305 3 Cases that cite this headnote 183Gamiuhmant l89lIPersons and Property Subject to Garnishment l89kl7Municipal Corporations and Officers 3Garnishment xr Municipal Corporations and Officers Waiver of sovereign immunity under garnishment statute did not apply to subjeccounty to writ of garnishment for funds owed on contract with independent contractor,independent contractor was not employee of county,and money owed to independent contractor was not salary or wages.West's F.S.A.§77.0305. 3 Cases that cite this headnote &��� = 189Gamishment 1891|Personsand Property SubjectvnEamishmemt lB9kl7Municipal Corporations and Officers Attorneys and Law Firms ^1O53William PBurtre and Robert Bruce Snow, Brooksvle,for App ||ant Hemando County. Russell G. Marlowe of Davis&Marlowe, P.A., New Port Richey, for Appellant Roy Rudolph Construction Corporation. George Warner, Hudyun, pro se. Opinion ANTOON, Judge. Hemando County appeals the trial courts order granting George Warners petition for a writ of garnishment.We reverse because the doctrine of sovereign immunity bars this garnishment action. In so ruling we hold that the waiver of sovereign immunity provided in section 77.0305 of the Florida Statutes does not apply when(1)the judgment creditor is an independent contractor,or(2)the debt arose before October 1, 1993. Packet Page -197- 6/28/2016 10.B. In 1990, George Warnewas awarded an$8,031.22 judgmenagainst Roy Rudolph Construction Corporation(the Corporation). In February 1996,Warner filed a motion for writ of garnishment against Hernando County seeking garnishment of the Corporation's funds allegedly held by the County.The County filed a motion to dismiss,arguing that it was not subject to garnishment proceedings under the doctrine of sovereign immunity.In his reply to the motion to dismiss Warner asserted that the Corporation was the contractor on a county construction project and that the County owed the Corporation over$10,000 on the contract. Relying on the waiver of sovereign immunity provided in section 77.0305,Florida Statutes(1995),the trial court denied the County's motion to dismiss.The County then filed its answer in which it raised the affirmative defense of'1054 sovereign immunity as an affirmative defense.After conducting a hearing on the matter,the trial court ruled againsthe County and entered a final judgment of garnishment in favor of Warner. 1 The state and its subdivisions and agencies are immune from garnishment proceedings absent a clear and unequivocal legislative enactment to the contrary. Metropolitan Dade County v.United Guar. Residential Ins. Co. of N.C, O453o2d1117. 111n(F|o. 3d DCA 1994). In this regard,the trial court aptly recognized that in 1993 the Florida legislature amended section 77.0305 of the Florida Statutes,thereby waiving sovereign immunity in certain garnishment proceedings, 2 Section 77.0305, Florida Statutes provides in relevant part: 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. h7T,O305. Fla. Stat. (1983)(emphasis oddad), Moreover, section 77,U3O5"applies only toanattachment,a garnishment,or other legal process that arises as a result of a contract, a loan,a transaction, a purchase,a sale,a transfer, oraconversion occurring onorafter October 1. 1g93.^Ch.S3'25G. 08. a\25OO. Laws ofFla.Thus, under the 1993 amendment,a county is subject to garnishment proceedings when the judgment debtor is an employee of the county and the judgment debtor is owed wages or salary for work performed on or after October 1, 1993. See Metropolitan Dade County, 645 So.2d at 1119. 3 It is clear from the instant record that the Corporation was not an employee of the County, and the money owed by the County to the Corporation was not salary or wages, In fact, according to Warner's own pleadings,the Corporation was an independent contractor which was owed money on a construction contract,There has been no legislative waiver of sovereign immunity regarding sums owed to independent contractors.Moreover,the statutory waiver of sovereign immunity applies only to debts arising after October 1, 1993.The instant debt arose prior to 1990.As a Packet Page-198- 6/28/2016 10.B. result,the trial court erred in determining that section 77.0305 waived sovereign immunity as to the sums owed by the County to the Corporation. ORDER REVERSED. DAUKSCH and HARRIS,JJ.,concur. All Citations 705 So.2d 1053,23 Fla. L.Weekly D467 End of Document o 2016 Thomson Reuters.No claim to original US. Government Works. Packet Page -199- .