Case: 13-13302   Date Filed: 08/27/2014   Page: 1 of 5


                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-13302
                        ________________________

                 D.C. Docket No. 3:12-cv-00394-MCR-EMT



CHARLES B. BARNIV,
CYNTHIA BARNIV,
BRUCE G. WITKIND,

                                                          Plaintiffs-Appellants,


                                   versus


BANKTRUST,
an Alabama Banking Corporation,
HAND ARENDALL, LLC,
an Alabama Limited Liability Company,

                                                         Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       ________________________

                              (August 27, 2014)
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Before ED CARNES, Chief Judge, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:

      This is the plaintiffs’ appeal from the district court’s entry of judgment

against them, more specifically its grant of summary judgment in favor of the

defendants on the Florida law claim of wrongful garnishment. Because the parties

and the district court are familiar with the procedural history and the facts, we will

not belabor them here but will instead proceed straight to the points of decision.

      Under Florida law, the tort of wrongful garnishment has the same elements

as the tort of malicious prosecution. Burshan v. Nat’l Union Fire Ins. Co. of

Pittsburgh, PA, 

, 844–45 (Fla. 4th DCA 2001); Iowa Mut. Ins. Co.

v. Gulf Heating & Refrigeration Co., 

, 706 (Fla. 2d DCA 1966) (“It

is well established that the principles governing a common law action for the

wrongful issuance of such writs [of garnishment] are those common law principles

applicable to actions for malicious prosecution.”), quashed on other grounds, 

(Fla. 1966). Those six elements are: (1) the defendant commenced or

continued a proceeding against the plaintiffs, (2) the defendant was the legal cause

of that proceeding, (3) the plaintiffs received a “bona fide termination” of the

proceeding in their favor, (4) the defendant did not have “probable cause” for the

proceeding, (5) the defendant acted with “legal malice”; and (6) the plaintiffs

suffered damages. See Adams v. Whitfield, 

, 51 (Fla. 1974). In this
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case the existence of the first two elements is undisputed, while the existence of

each of the remaining four elements is disputed. To explain why the entry of

judgment against the plaintiffs was correct, we need go no further than the third

element, but we will also address the fourth one for good measure.

      As for the third element, at the time this lawsuit was filed and even now,

there has been no “bona fide termination” of the garnishment proceeding in favor

of the plaintiffs. A termination is not “bona fide” in this context unless it is on the

merits instead of for a procedural reason. See Doss v. Bank of Am., N.A., 

991, 995 (Fla. 5th DCA 2003) (“[S]uits that terminate because of technical or

procedural reasons or considerations other than the merits of the first suit, are not

‘bona fide terminations’ . . . .”); see also Cohen v. Corwin, 

, 1155–

56 (Fla. 4th DCA 2008); Arison Shipping Co. v. Hatfield, 

, 539–40

(Fla. 3d DCA 1977). The writs of garnishment were not set aside on the merits but

instead were quashed solely because of a procedural reason that arose after the

writs had been issued, that reason being the filing of the plaintiffs’ counterclaims.

See Barniv v. BankTrust, 

, 582 (Fla. 1st DCA 2012) (per curiam)

(“We reverse the lower court’s order denying appellants’ emergency motion to

quash writs of execution and garnishment, because appellants’ counterclaims

against appellee remain pending.”) (emphasis added). The absence of the third

element is enough by itself to defeat the plaintiffs’ wrongful garnishment claim.
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      The claim also fails on the fourth element, which requires a plaintiff to show

that there was an absence of probable cause at the time the writ of garnishment was

sought and issued. Under Florida law the issuance of a writ of garnishment raises

a presumption of the existence of probable cause for it. See Goldstein v. Sabella,

, 911 (Fla. 1956) (noting that a plaintiff who had been convicted of a

crime must overcome a presumption of probable cause when asserting a malicious

prosecution claim); see also 

–45 (“The principles

governing a common law action for the wrongful issuance of a garnishment writ

are those common law principles applicable to actions for malicious prosecution.”)

(footnote and quotation marks omitted); Iowa Mut. Ins. 

(same). The plaintiffs have not rebutted that presumption by a showing that the

writs were obtained by fraud, perjury, or other corrupt means. Indeed, even

without the presumption, we would conclude that probable cause for the issuance

of the writs existed.

      We have not overlooked the plaintiffs’ contention that a judgment has to be

appealable as well as final in order to serve as the basis for a writ of garnishment.

That is not the general rule in Florida. See E. Ave., LLC v. Insignia Bank, 

659, 661 (Fla. 2d DCA 2014) (recognizing that executable judgments can be

executable under Florida law even if they are not final and immediately appealable,

even though that may leave a party “exposed to enforcement of the judgment at a
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time when it cannot obtain review of it”). The First District Court of Appeal,

which has appellate jurisdiction over the area where the orders giving rise to this

case were entered, has dismissed an appeal from a non-final order while

recognizing that the order contained the traditional language of finality, “for which

let execution issue,” making the judgment “immediately executable.” Raymond

James & Assocs., Inc. v. Godshall, 

, 880 (Fla. 1st DCA 2003). That

decision meant that “the appellant [was] unable to obtain review or a supersedeas

of the order while the judgment creditor [was] able to pursue its collection by

execution.” E. Ave., 

. Regardless of whether we think that

the law should be different, it is Florida law and we are bound to follow the

decisions of the Florida courts.

      AFFIRMED.




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