05-0741 ROSSANO V. BRITESMILE

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State: Florida

Court: Florida Third District Court

Docket No: 05-0741 ROSSANO V. BRITESMILE

Case Date: 12/28/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2005

SHARON ROSSANO, Appellant, vs. BRITESMILE, INC., Appellee.

** ** ** ** ** CASE NO. 3D05-741 LOWER TRIBUNAL NO. 04-11486

Opinion filed December 28, 2005. An Appeal from the Circuit Court for Miami-Dade County, Lawrence A. Schwartz, Judge. Nancy C. Wear, for appellant. Baker appellee. & Hostetler and David S. Wood (Orlando), for

Before SUAREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge. On August 12, 2004, the appellee secured a $108,247.15

judgment against the appellant.

Later that year, while taking

her deposition in aid of execution, the creditor learned that

she

planned

to

sell

her

homestead On

and

to

purchase 30, the

a

less

expensive

residence

instead.

December

appellee

served a writ of garnishment on a closing agent who held an account reaching the total of $187,551.87, the proceeds of the sale of her first home. 1 Because, on November 24, she had

entered into a contract for the purchase of a new home for $308,000, Ms. Rossano claimed an exemption pursuant to Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So. 2d 201 (Fla. 1962), applied on to the the ground that her funds. previous homestead exemption after a

escrowed

Notwithstanding,

hearing, the court awarded a garnishment judgment for the full amount of the judgment plus costs. We reverse on the holding that, in light of the evidence concerning the judgment-debtor's clear intention to devote all or part of the proceeds received from the sale of her previous home into a new homestead so as to qualify for continued

exemption under La Croix, it was error for the trial court to require garnishment of the entire amount claimed. Instead, the

court should await the closing on the new home and then order payment to the appellee judgment-creditor only of that amount, if any, which was not used in good faith for the new residence. As is said in La Croix:

1

The home sold for a gross amount of $597,000 less the payoff of a $386,624.21 mortgage. 2

[T]he proceeds of a voluntary sale of a homestead to be exempt from the claims of creditors just as the homestead itself is exempt if, and only if, the vendor shows, by a preponderance of the evidence an abiding good faith intention prior to and at the time of the sale of the homestead to reinvest the proceeds thereof in another homestead within a reasonable time. Moreover, only so much of the proceeds of the sale as are intended to be reinvested in another homestead may be exempt under this holding. Any surplus over and above that amount should be treated as general assets of the debtor. . . . The proceeds of the sale are not exempt if they are not reinvested in another homestead in a reasonable time or if they are held for the general purposes of the vendor. La Croix, 137 So. 2d at 206; see also Suntrust Bank/Miami, N.A. v. Papadopolous, 740 So. 2d 594 (Fla. 3d DCA 1999); Shawzin v. Donald J. Sasser, P.A., 658 So. 2d 1148 (Fla. 4th DCA 1995), review denied, 669 So. 2d 252 (Fla. 1996); Sun First Nat'l Bank of Orlando v. Gieger, 402 So. 2d 428 (Fla. 5th DCA 1981). Reversed.

3

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