Vining v. Martyn, 858 So. 2d 365 (Fla. 3d DCA 2003). · Go Syfert
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Vining v. Martyn, 858 So. 2d 365 (Fla. 3d DCA 2003). Cases Citing This Book View Copy Cite
2 citation events across 1 distinct court.
Strongest positive: Donald Alan Tobkin v. Jacqueline Calderin (ca11, 2015-11-16)
Top citers, strongest first. 2 distinct citers. How cited ↗
discussed Cited as authority (rule) Donald Alan Tobkin v. Jacqueline Calderin
11th Cir. · 2015 · confidence medium
Florida courts have held that proceeds from a debtor’s business, including a law practice, do not constitute “earnings.” See Brock v. Westport Recovery Corp., 832 So.2d 209, 212 (Fla.Dist.Ct.App.2002) (affirming trial court ruling that the “earnings” exemption does not apply to proceeds from a family-owned business); Vining v. Martyn, 858 So.2d 365, 366 (Fla.Dist.Ct.App.2003) (per curiam) (“[T]he funds at issue here were proceeds of [the debtor’s] law practice.
discussed Cited "see, e.g." Denison v. Marina Mile Shipyard, Inc. (In Re New River Dry Dock, Inc.)
11th Cir. · 2012 · signal: see also · confidence medium
See Vining v. Segal, 731 So.2d 826, 827 (Fla. 3d DCA 1999) (holding that the accounts of a dental practice, a sole proprietorship, were not exempt from garnishment because the proprietor did not pay himself a wage or salary from those accounts, which held the proceeds of the dental practice, but used the accounts to pay both business and personal expenses); see also Vining v. Martyn, 858 So.2d 365, 366 (Fla. 3d DCA 2003) (holding that the proceeds of a garnishee’s law practice were not exempt from garnishment under § 222.12).
Retrieving the full opinion text from the archive…
Edward C. VINING, Jr.
v.
Eva MARTYN
No. 3D02-858.
District Court of Appeal of Florida, Third District.
Nov 5, 2003.
858 So. 2d 365
2003 Fla. App. LEXIS 16697
2003 WL 22491670
Edward C. Vining, Jr., Miami, in proper person., Lauri Waldman Ross, Miami, for appel-lee.
Cope, Gersten, Goderich.
Cited by 2 opinions  |  Published
PER CURIAM.

Edward C. Vining, Jr., appeals a final judgment in one garnishment proceeding and interlocutory orders in another. We affirm the final judgment and dismiss the appeal as to the interlocutory orders.

[*366] I.

Appellee Eva Martyn obtained a judgment against Vining, which has not been satisfied. Martyn determined that in other litigation Vining obtained two judgments against Frank J. Pepper, Jr., and other defendants (collectively “Pepper”). Pepper had not paid Vining the judgment amount, which was approximately $86,000.

Martyn served writs of garnishment on Pepper, seeking to collect the $86,000 which Pepper owed to Vining. Vining filed an affidavit for exemption from garnishment under section 222.12, Florida Statutes (2000), asserting that the judgment was due for his personal labor and services, and that he is the head of a Florida family. Martyn’s attorney filed a sworn denial, denying that Vining was entitled to the exemption.

Pepper interpled the judgment amounts into the registry of the court. The trial court ruled that Martyn is entitled to the money. Vining has appealed.

We conclude that the judgment must be affirmed. We reject Vining’s argument that the sworn denial of exemption was untimely. Under the statute, time is calculated from “the service of said notice,” id., and when so calculated, is timely.

On the merits, the funds at issue here were proceeds of Vining’s law practice. We agree with the trial court that the funds do not qualify for the statutory exemption. See In re: Zamora, 187 B.R. 783 (Bankr.S.D.Fla.1995); Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931); Vining v. Segal, 731 So.2d 826 (Fla. 3d DCA 1999); Refco, Inc. v. Sarmiento, 487 So.2d 75 (Fla. 3d DCA 1986).

Vining also argues that the oath was insufficient to support the opposition affidavit filed by Martyn’s counsel. In absence of a transcript, we have been unable to determine whether this argument was timely called to the trial court’s attention, and if so, what arguments were made for and against. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979).*

II.

Vining was sued in separate litigation by a former client, Mary Alice Poe, alleging legal malpractice, breach of contract, and other claims. Vining filed a counterclaim.

Martyn filed a writ of garnishment, seeking to reach any affirmative recovery that Vining might obtain because of his counterclaim in the Poe litigation. Vining filed motions to dismiss, dissolve, and discharge the writ of garnishment. The trial court denied Vining’s motions, and Vining has appealed.

As the trial court’s rulings on these motions are interlocutory, non-appealable orders, we dismiss the appeal as to the Poe garnishment, and decline to entertain the appeal as a petition for writ of certiorari.

Affirmed as to Pepper garnishment; appeal dismissed as to Poe garnishment.

It appears that Vining did not raise this issue until after the trial court had already entered partial summary judgment in favor of Martyn, reserving only a single issue for decision (whether the opposition affidavit of Martyn’s counsel had been timely served). It thus appears that the issue of sufficiency of the oath was untimely raised.