WALLACE, Judge.
USAmeriBank (the Bank) appeals the circuit court's order blocking its attempt to collect a money judgment against Richard Nelson Klepal, Jr., by garnishing his wages. The issue presented is whether Mr. Klepal, who is currently the head of a family, agreed in writing to the garnishment of his disposable earnings. Because the promissory note that was the basis for the Bank's judgment against Mr. Klepal included an agreement for the garnishment of his disposable earnings in accordance with section 222.11, Florida Statutes (2007), we reverse the circuit court's order.
On December 12, 2007, Mr. Klepal borrowed $43,800 from the Bank. After Mr. Klepal defaulted on the note, the Bank obtained a judgment against him for unpaid principal, interest, costs, and attorney's fees. The amount of the Bank's judgment is $51,712.04.
The promissory note signed by Mr. Klepal to memorialize the terms of the parties' agreement concerning the loan included the following paragraph pertaining to the subject of garnishment: "I consent to the issuance of a continuing writ of garnishment or attachment against my disposable earnings, in accordance with Section 222.11, Florida Statutes, in order to satisfy, in whole or in part, any money judgment entered in favor of [the Bank]." The promissory note also included the following statement — capitalized and in bold print — directly above Mr. Klepal's signature: "Prior to signing this note, I read and understood all the provisions of this note. I agree to the terms of the note. I acknowledge receipt of a completed copy of this promissory note."
After the entry of the final judgment, the Bank filed a motion for a continuing writ of garnishment against salary or wages. The writ was issued and served on Mr. Klepal's employer. The employer served an answer to the writ acknowledging Mr. Klepal's employment and stating his pay period and annual rate of pay. Mr. Klepal moved to dissolve the writ of garnishment on the ground that his wages were exempt from garnishment because he was the head of a family. Mr. Klepal supported his motion with an appropriate affidavit concerning his claim of exemption. The Bank timely filed an affidavit in
The circuit court conducted a hearing on Mr. Klepal's motion to dissolve the writ of garnishment. At the hearing, the circuit court ruled that it would not "dissolve the garnishment because the writ of garnishment was issued properly." However, the circuit court also ruled that the garnishment paragraph in the promissory note was not sufficient as "a waiver of a head-of-household exemption"
Therefore, although the circuit court denied the motion to dissolve the writ of garnishment, the remainder of the circuit court's ruling effectively blocked the Bank from proceeding with the garnishment of Mr. Klepal's wages.
The issue presented concerns the circuit court's interpretation of the promissory note. Thus our review is de novo. See Gibney v. Pillifant, 32 So.3d 784, 785 (Fla. 2d DCA 2010); Angell v. Don Jones Ins. Agency Inc., 620 So.2d 1012, 1014 (Fla. 2d DCA 1993).
The Bank contends that the only logical construction of the garnishment paragraph is "that [Mr. Klepal] consented, in accordance with § 222.11, Fla. Stat. (2007)[,] to the issuance of a continuing writ of garnishment or attachment against his disposable earnings to satisfy in whole or in part any money judgment obtained by [the Bank]." In response, Mr. Klepal makes three interrelated points. First, he consented only to the "issuance" of a writ of garnishment, nothing more. The "`issuance' of a writ of garnishment is a discrete act that is only the beginning of contested garnishment proceedings." The waiver of the head-of-family exemption is a separate issue, and the garnishment paragraph does not speak to that. Second, the garnishment paragraph is ambiguous. Because the Bank drafted the note, any ambiguity in its provisions must be construed against the Bank. Third, the garnishment paragraph "was patently inadequate to establish an intentional or voluntary relinquishment of" the head-of-family exemption from wage garnishment.
Section 222.11 addresses the issue of the exemption of wages from attachment or
The statute makes the disposable earnings of a head of a family exempt from attachment or garnishment absent a written agreement to the contrary. Under section 222.11(2)(a), all of the disposable earnings of a head of a family less than or equal to $500 a week are exempt from attachment or garnishment. No waiver of the exemption by a head of family is permitted for disposable earnings up to and including the amount of $500. In accordance with section 222.11(2)(b), the disposable earnings of a head of a family which are greater than $500 a week are also exempt from attachment or garnishment "unless a written agreement allowing garnishment is executed" by the head of the family. Williams v. Espirito Santo Bank of Fla., 656 So.2d 212, 213 (Fla. 3d DCA 1995) (construing the 1993 version of the statute). Even if the head of a family has agreed in writing to the attachment or garnishment of his or her wages, the amount to be attached or garnished may not "exceed the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. s. 1673." § 221.11(2)(b).
In this case, our inquiry concerns whether the garnishment paragraph in the promissory note is sufficient to satisfy the statutory requirement of a written agreement to waive the exemption for the disposable earnings of a head of a family to the extent that the disposable earnings exceed $500 a week. We begin by noting that section 222.11(2)(b) does not prescribe any particular language to effect a waiver of the wage exemption. The only statutory requirement for a waiver of the exemption is that the agreement be in writing.
We disagree with this narrow interpretation of the garnishment paragraph for two reasons. First, the narrow reading of the garnishment paragraph focuses on the single phrase concerning "consent to the issuance of a continuing writ of garnishment" to the exclusion of the remainder of the paragraph. In construing the garnishment paragraph, we must determine the intention of the parties "from an examination of the entire contract and not from separate phrases or paragraphs." Moore v. State Farm Mut. Auto. Ins. Co., 916 So.2d 871, 875 (Fla. 2d DCA 2005).
The garnishment paragraph provides for substantially more than the mere issuance of a writ of garnishment. In addition, it references section 222.11, the statute that not only establishes the exemption but also authorizes a partial waiver of its benefits. Furthermore, the garnishment paragraph expressly recites that the purpose of the issuance of the writ of garnishment is "to satisfy, in whole or in part, any money judgment entered in favor of [the Bank]." Thus the parties' intent — as expressed in their written agreement — was not only that the continuing writ of garnishment would issue but also that the Bank could enforce it against Mr. Klepal's disposable earnings to the extent allowable under the statute to satisfy any judgment that the Bank might obtain against Mr. Klepal. An exclusive focus on the first portion of the garnishment paragraph relating to the issuance of the writ reads the remaining language out of the paragraph, thereby frustrating its obvious purpose.
Second, once the Bank obtained a judgment upon a default on the note, it had a statutory right to the issuance of a continuing writ of garnishment. §§ 77.01, 77.0305, Fla. Stat. (2010).
The parties' intent — as expressed in their written agreement — was to authorize the garnishment of Mr. Klepal's wages to the extent available under the statute. We conclude that the garnishment paragraph constituted a written agreement sufficient to authorize the garnishment of Mr. Klepal's disposable earnings greater than $500 a week despite his status as the head of a family. The circuit court erred in ruling to the contrary. Accordingly, we reverse the circuit court's order and remand this case to the circuit court for the entry of an appropriate order enforcing the continuing writ of garnishment in accordance with section 222.11.
Reversed and remanded.
VILLANTI, J., Concurs.
WHATLEY, J., Dissents with opinion.
WHATLEY, Judge, Dissenting.
I respectfully dissent. The garnishment provision in the contract consists of one sentence and it neither mentions the term "waive" nor the head-of-family exemption, and it does not state or imply that the consumer, by signing the contract, is waiving a statutory right to such an exemption. Courts cannot, under the guise of contract construction, insert language into a contact that the drafter did not include. Discover Prop. & Cas. Ins. Co. v. Beach Cars of West Palm, Inc., 929 So.2d 729, 732 (Fla. 4th DCA 2006); see Union Bankers Ins. Co. v. DiPaolo, 627 So.2d 1207, 1208 (Fla. 4th DCA 1993) ("[T]he rights and liabilities of the parties to the contract should be determined by the contract language itself, and not by missing text that the drafter of the contract did not think to include.").
As this court has recognized, "there can be no waiver without knowledge of that being waived." Rutherford v. Gascon, 679 So.2d 329, 331 (Fla. 2d DCA 1996); see also Tex. Nat'l Bank v. Sandia Mortg. Corp., 872 F.2d 692, 701 (5th Cir.1989) (holding that a party's contractual agreement to waive a specific protection the law provides requires specificity, because such a waiver must be an intended relinquishment of a known right); Stanley v. Mueller, 222 Or. 194, 350 P.2d 880, 887 (1960) ("[A] waiver of a legal right results only when there is both full knowledge of all the facts and the existence of the right of election coupled with an intention to relinquish it."). Here, the contract fails to inform Klepal that he may have a right to claim the head-of-family exemption and furthermore contains no language informing Klepal that he is waiving any right to claim the head-of-family exemption. It is improper for this court, under the guise of contract construction, to insert such language into the contact. Discover Prop. & Cas. Ins. Co., 929 So.2d at 732.
The trial court correctly found that Klepal's consent to the issuance of a continuing writ of garnishment was expressly limited to just that, the "issuance" of such a writ. See Pearson v. Caterpillar Fin. Servs. Corp., 60 So.3d 1168, 1172 (Fla. 4th DCA 2011) ("The `plain meaning of the words in the document' should be used to ascertain the parties' intent." (quoting Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn.2006))). The Bank, as drafter of the instrument, received that for which it
The majority concludes that this interpretation of the garnishment provision permitting a continuing writ of garnishment is a futile exercise because once it is issued, it is unenforceable because the balance of the garnishment provision is ineffective as a waiver of the exemption. This analysis assumes that every person who signs the provision is a head-of-family. Section 222.11(1)(c) defines head-of-family as any person who provides for more than one-half of the support for a child or other dependent. Therefore, the exemption only comes into play when a party is the head-of-family. Further, even if a party is a head-of-family when the contract is signed, they may no longer qualify as such when the writ of garnishment is issued. As such, the trial court's interpretation of the contract, permitting the issuance of a continuing writ of garnishment, is not a futile exercise in every circumstance.
The majority notes that courts must determine the intention of the parties by examining the entire contract, not separate phrases or paragraphs, and states that the "garnishment paragraph provides for substantially more than the mere issuance of a writ of garnishment." However, as previously noted, the garnishment "paragraph" in the contract consists of merely one sentence. The majority concludes that the reference to section 222.11 in the garnishment sentence authorizes a waiver of the head-of-family exemption. I do not agree, as the sentence only notes that Klepal's consent to the issuance of the writ of garnishment is "in accordance with Section 222.11." Therefore, viewing the garnishment sentence in its entirety, it merely provides that the parties intend that the issuance of such writ would be in accordance with section 222.11, which provides that the wages of a head-of-family in excess of $500 a week may not be garnished unless such right is waived in writing. See Lee v. Montgomery, 624 So.2d 850, 851 (Fla. 1st DCA 1993) ("As a general rule, in the absence of some ambiguity, the intent of the parties to a written contract must be ascertained from the words used in the contract, without resort to extrinsic evidence."). The garnishment sentence in the contract merely references the statute addressing the rights accorded to a head-of-family, it does not purport to waive any rights contained therein.
Because the garnishment sentence does not mention the head-of-family exemption to the garnishment of wages, much less inform Klepal that he may have the right to claim the exemption and that by signing the contract he is giving up that right, I believe that the trial court did not err in finding that Klepal did not waive his statutory right to claim this exemption. See Bakst, Cloyd & Bakst, P.A. v. Cole, 750 So.2d 676, 677 (Fla. 4th DCA 1999) (holding that language in the contract was insufficient to prove a knowing waiver of party's right to homestead exemption where nothing in the contract even hints that the party was waiving this right).