July 5, 2011

A Party’s Attorney is Legally Insufficient to Execute Sworn Affidavit Under Fla. Stat. §222.12 ; Affidavit Must be Executed by Party Who Sued

Caproc Third Ave., L.L.C. v. Donisi Ins. Inc., and Donosi, 4D09-4792
June 1, 2011

The Fourth District wrote to address the issue of who may properly deny facts set forth in a judgment debtor’s affidavit for exemption under section 222.12, Florida Statutes.  Caproc Third Avenue, LLC (“Caproc”) obtained a final judgment against Charles Donisi. A writ of garnishment was issued against Donisi’s personal bank accounts. Donisi filed an Emergency Motion to Dissolve the Writ and executed an affidavit asserting his accounts were exempt from garnishment. In response, Caproc’s attorney filed an “attorney’s affidavit” that denied under oath the facts set forth in Donisi’s affidavit.  The trial court dissolved the writ and found the affidavit filed by Caproc’s attorney legally insufficient to satisfy Caproc’s burden under §222.12 to deny the facts under oath.

Caproc appealed, arguing that it was permissible under the statute for its attorney to execute the sworn denial of the debtor’s exemption affidavit. The Fourth District disagreed, holding that the language of the statute was clear and unambiguous in its requirement that the party who sued out the process, and not the party’s attorney, deny under oath the facts set forth by the debtor.  The Court stated S. Attractions, Inc. v. Grau for the proposition that “[u]nder a statute requiring an affidavit to be made by a particular person himself, his agent or attorney cannot make it.” 93 So.2d 120, 125 (Fla. 1967).  The Fourth District affirmed the dissolution of the writ.