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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CROP PRODUCTION SERVICES, INC.,

A Delaware corporation

 Plaintiff,

vs. 3:10mc65/MCR/MD

TED BAXTER,

 Defendant.

REPORT AND RECOMMENDATION

This cause is before the undersigned upon referral from the district judge for

review of defendant’s motion to dissolve writs of garnishment (19), and plaintiff’s

response in opposition. (Doc. 20). 

Plaintiff Crop Production Services, Inc. (“CPS”) commenced this action by

registering a $255,023.66 judgment from the United States District Court, Middle

District of Alabama. (Doc. 1), and shortly thereafter filing motions for writs of

garnishment, (doc. 3 & 4), which were granted. (Doc. 5 & 6). Defendant Ted Baxter 1

filed a notice of filing claim of exemption from garnishment. (Doc. 13). In his 2

motion, he asserted that he is exempt from garnishment because his income tax

return shows that he is head of household and because real property, the debt and

the credit union account are all held as tenants by the entirety with his wife. (Doc.

The writs of garnishment were filed against Jackson County Teachers Credit Union where defendant

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had some funds on deposit, and W illiam and Shirley Floyd who obtained farm equipment sold on credit from

Baxter.

Doc. 13 is a corrected version of the original version (doc. 11) which did not have a proper original

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or electronic signature. (See doc. 12).
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13 at 1). The main portion of the pleading is not sworn under penalty of perjury. 

Attached is a notice to defendant of right against garnishment of wages, money, and

other property in which defendant claims, under oath, exemption from garnishment

for the following categories of assets: head of family wages; retirement or profit

sharing benefits or pension money; life insurance benefits or cash surrender value

of a life insurance policy or proceeds of annuity contract; and property owned by he

and his wife as tenants by the entirety. This exhibit, which tracks the format set

forth in § 77.041(1) Florida Statutes without citing the statute, is sworn and

notarized. (Doc. 13, exh. 1 at 2).

CPS objected to the defendant’s claim of exemptions on several grounds. 

First, CPS stated that upon information and belief, since the plaintiff had claimed

that he ceased his farming operations he had not been employed on a full time

basis, although his wife was so employed, and therefore defendant Baxter was not

head of household. (Doc. 15 at 1-2). CPS also objected that the $88,000 debt owed

to defendant Baxter was not property owned as “tenants by the entirety” as he

stated, because the farm equipment transferred in consideration for the debt was his

alone, not jointly owned with his wife. (Doc. 15 at 2). Finally, CPS asserted that the

credit union accounts that Baxter claimed were owned as tenants by the entirety

were not so owned because post-judgment discovery revealed that checks

deposited into the account had been written to him alone, and the deposits were

from proceeds from farming operations to which Charlotte Baxter had no legal or

equitable claim under Florida law. (Doc. 15 at 2-3). At the conclusion of the unsworn

motion, CPS asked that the court set a hearing. 

Defendant Baxter subsequently moved to dissolve the writs of garnishment

served upon the Jackson County Teachers Credit Union (“JCTCU”) and William and

Shirley Floyd (“The Floyds”), claiming that the writs are due to be dissolved as a

result of plaintiff’s failure to file a sworn written statement contesting his claim of

exemption. (Doc. 19). 

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Florida Statute 77.041(3) provides:

Upon the filing by a defendant of a claim of exemption and request for

hearing, a hearing will be held as soon as is practicable to determine

the validity of the claimed exemptions. If the plaintiff does not file a

sworn written statement that contests the defendant's claim of

exemption within 3 business days after hand delivering the claim and

request or, alternatively, 8 business days, if the claim and request were

served by mail, no hearing is required and the clerk must automatically

dissolve the writ and notify the parties of the dissolution by mail.

77.041(3), Florida Statutes. Although the form that tracks 77.041(1) does not state

that the plaintiff’s objection must be sworn, subsection 77.041(3) specifically

includes this requirement. See Miami Herald Pub. Co. v. Payne, 358 So.2d 541, 543

(Fla. 1978) (holding that if the garnishor fails to timely file a sworn statement

disputing facts alleged to support the exemption, all proceedings under the writ

must cease); Hill v. Haywood, 735 So.2d 539 (Fla. 2 DCA 1999) (same, but decided nd

pursuant to §222.12); Great American Ins. Co. v. General Contractors & Const.

Management, Inc., 2008 WL 5056526 (S.D. Fla. 2008) (same; citing both § 77.041 and

§ 222.12, Florida statutes); Sokolsky v. Kuhn, 386 So. 2d 806, 807 (Fla. 1981)

(decided pursuant to § 222.12, Fla. Stat.).

CPS does not contest the legitimacy of the case law cited herein, or deny that

the statute “means what it says.” Instead, it attempts to excuse its failure to file the

sworn objection required by the plain language of the statute by stating that 

neither CPS nor its counsel “had personal knowledge of facts upon

which either could have sworn under oath as to any denial of the Baxter

Exemption Claim, none of the Objections of CPS were filed with

affidavits and none of the text or exhibits were verified with “sworn”

testimony.

(Doc. 20 at 3). CPS goes on to say that its objections were filed under the standards

governing attorneys and parties under Fed.R.Civ.P. 11(b)(3) and (4). It states that

filing a sworn denial to Baxter’s exemption claim could have constituted perjury or

served as grounds for disqualification of counsel for CPS, and now claims that there

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is “uncertainty under Florida law as to the requirements to comply with the statute.” 

(Doc. 20 at 7). These arguments ring hollow. In its initial objections, CPS neither

explained nor acknowledged its non-compliance with or alleged uncertainty about

the statute, although it represented that the objections were filed “pursuant to . . .

§ 77.41(3).” Clearly, then, having read the statute CPS was on notice of the statutory

requirements. It simply chose not to follow them.

CPS nonetheless argues that it should not be “punished” for its failure to

comply with the statute by either (1) dissolution of the writs or (2) denying it the

opportunity to verify its response or (3) denying it the opportunity to issue new writs

to JCTCU and the Floyds. (Doc. 20 at 7). Plaintiff cites Orix Financial Services, Inc. 3

v. Sims, 2008 WL 681037 (M.D. Fla. 2008) in support of its assertion that it should

be given another opportunity to comply with the procedural requirements of the

statute. In Orix, however, neither the defendant nor the plaintiff complied with the

procedural requirements for moving for exemption from garnishment. The

defendant who had filed the deficient motion for exemption was permitted time to

serve a sworn statement on the plaintiff and the court, and plaintiff was afforded the

statutory two days to file a contravening affidavit, absent which “all proceedings

under the writ must cease.” Orix, 2008 WL 681037 at *2. Thus, rather than

supporting plaintiff’s position, Orix weakens it. 

CPS contends that by dissolving the current writs, defendant “will only

subject this court, CPS, the Baxters, the Floyds, and the JCTCU to another round of

motions, issuance of writs, service of writs, notice of service of writs, answers,

claims of exemptions, and sworn denials, all leading to the same place.” (Doc. 20

at 10). This assertion ignores the reality that it is CPS’s failure to follow the

procedural requirements of the statute that has led to this position. The court is not

persuaded by CPS’s plea that the writs not be dismissed in light of the utter lack of

Although plaintiff uses the word “right,” absent some legal basis for such a right, the word

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“opportunity” seems more fitting.

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precedent in support of this position. Neither party has cited and the court has not

found any authority suggesting that dissolution of the writs of execution would bar

CPS from refiling. While the repetition of effort that will likely ensue from the

dissolution of the writs is unfortunate, statutory procedural requirements must be

enforced in order for them to hold any meaning. 

Accordingly, it is respectfully RECOMMENDED:

That defendant’s motion to dissolve writs of garnishment (doc. 19) be

GRANTED, and the writs of garnishment entered against Jackson County Teacher’s

Credit Union and William B. Floyd and Shirley Floyd be dissolved for the reasons set

forth herein.

At Pensacola, Florida, this 16 day of December, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy thereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:10mc65/MCR/MD