What constitutes wrongfulness regarding garnishments

What constitutes wrongfulness

Generally speaking, if the plaintiff in the action in which the attachment or garnishment is issued succeeds in maintaining his main action, and also the attachment or garnishment, there is no cause of action for wrongful attachment or garnishment.[FN54] An attachment is sued out wrongfully where no grounds for attachment exist,[FN55] but if any one of the grounds upon which a plaintiff predicates his right to attachment is true, the attachment is not wrongfully sued out.[FN56] An attachment is wrongful where it appears that the plaintiff in the attachment has no cause of action or that no indebtedness exists.[FN57] However merely because, under a counterclaim, the accounts may be balanced and the plaintiff denied a recovery does not necessarily mean that the plaintiff did not have a cause of action.[FN58] It has been said that whether a garnishment is wrongful depends upon whether the steps taken by the party seeking the writ comply with the statute authorizing such relief.[FN59] It has also been stated that a prejudgment garnishment without notice or opportunity for hearing is, as a matter of law, wrongful.[FN60]

The fact that the defendant in the principal action finally prevailed and that the attachment was dissolved has been held conclusive that the attachment was wrongful.[FN61] A like rule may apply where the attachment is dissolved upon the merits,[FN62] as where it is based on insufficient grounds,[FN63] even though the attaching creditor recovers judgment in the main action.[FN64] So too, mistakenly commencing an action at law which could not be maintained, and obtaining issuance of a writ of garnishment by which the principal defendants in the proceedings were deprived of possession of their property constitutes a wrongful garnishment, regardless of whether the principal action was dismissed with prejudice after trial upon the merits or dismissed without prejudice because of procedural error.[FN65] However, there is authority that the mere fact that a writ of attachment or garnishment was quashed or that the suit was abandoned or dismissed does not give rise to a presumption that the attachment or garnishment was wrongful.[FN66] Dissolution of an attachment for a mere informal error is not sufficient proof that it was wrongfully sued out.[FN67] Likewise, a mere judgment of involuntary nonsuit against the plaintiff in the principal action has been held not to show that the attachment was wrongful.[FN68]

To recover damages for wrongful garnishment, a defendant need not prove that plaintiff lacked probable cause as is required in case of alleged wrongful attachment; rather, if the plaintiff does not recover a judgment against the defendant, the garnishment is wrongful, even though the primary action is dismissed without prejudice.[FN69]


[FN54] Ross v. Peck Iron & Metal Co., 264 F.2d 262 (4th Cir. 1959); Exchange Lumber & Mfg. Co. v. Thomas, 71 Idaho 391, 233 P.2d 406 (1951); Westerman v. Comerica Bank-Texas, 928 S.W.2d 679 (Tex. App. San Antonio 1996), reh'g overruled, (Sept. 3, 1996) and writ denied, (Nov. 26, 1996) and reh'g of writ of error overruled, (Jan. 10, 1997).

If the plaintiff recovers judgment upon the proceedings in attachment, as well as in the main action, the defendant is concluded thereby. Waring v. Fletcher, 152 Ind. 620, 52 N.E. 203 (1898).
[FN55] Andrew Brown Co. v. Painters Warehouse, Inc., 11 Ariz. App. 571, 466 P.2d 790 (Div. 1 1970); Wiley v. Howard, 180 Ill. App. 3d 721, 129 Ill. Dec. 502, 536 N.E.2d 186 (2d Dist. 1989); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996), reh'g denied, (Apr. 5, 1996) and review denied, (June 11, 1996); Brown v. Peoples Nat. Bank of Wash., 39 Wash. 2d 776, 238 P.2d 1191 (1951) (distinguished by, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)).

An attachment may be said to have been sued out wrongfully where grounds upon which plaintiff predicates its right to attachment are false. Rockport Co. v. Wedgewood, Inc., 447 N.W.2d 126 (Iowa 1989).

A garnishment is wrongful if the facts set forth in the affidavits prescribed by statute are untrue. Chandler v. Cashway Bldg. Materials, Inc., 584 S.W.2d 950 (Tex. Civ. App. El Paso 1979).
[FN56] Painter v. Munn, 117 Ala. 322, 23 So. 83 (1898); Hiers v. Cohen, 31 Conn. Supp. 305, 329 A.2d 609 (Super. Ct. 1973); Brown v. Peoples Nat. Bank of Wash., 39 Wash. 2d 776, 238 P.2d 1191 (1951) (distinguished by, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)).
[FN57] Hansen v. Northrup, 243 Iowa 1101, 54 N.W.2d 815 (1952); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996), reh'g denied, (Apr. 5, 1996) and review denied, (June 11, 1996); First Nat. Bank of Commerce v. Boutall, 422 So. 2d 1159 (La. 1982).
[FN58] Hansen v. Northrup, 243 Iowa 1101, 54 N.W.2d 815 (1952).
[FN59] Chandler v. Cashway Bldg. Materials, Inc., 584 S.W.2d 950 (Tex. Civ. App. El Paso 1979).
[FN60] Texas Commerce Bank Nat. **** v. Tripp, 516 S.W.2d 256 (Tex. Civ. App. Fort Worth 1974), dismissed, (Apr. 9, 1975) and (declined to follow on other grounds by, First Nat. Bank of Midland v. Stoutco, Inc., 530 S.W.2d 619 (Tex. Civ. App. San Antonio 1975)).
[FN61] Smith v. Summers, 215 Ala. 690, 112 So. 344 (1927); Dynatronics, Inc. v. Knorr, 247 So. 2d 70 (Fla. Dist. Ct. App. 2d Dist. 1971); Neri v. J.I. Case Co., 207 Ill. App. 3d 409, 152 Ill. Dec. 488, 566 N.E.2d 16 (2d Dist. 1991); Gale v. Transamerica Corp., 65 Ill. App. 3d 553, 22 Ill. Dec. 92, 382 N.E.2d 412 (1st Dist. 1978) (declined to extend by, Leone Grain and Supply, Inc. v. Boers, 251 Ill. App. 3d 330, 190 Ill. Dec. 439, 621 N.E.2d 611 (3d Dist. 1993)); Ashland Oil, Inc. v. Arnett, 507 N.E.2d 561 (Ind. 1987); Newby v. U. S. Fidelity & Guaranty Co., 49 Wash. 2d 843, 307 P.2d 275 (1957) (superseded by statute on other grounds as stated in, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)).

The wrongfulness of the attachment is res judicata by virtue of a judgment against the attaching creditor in the attachment suit. Powell v. Schultz, 118 S.W.2d 25 (Mo. Ct. App. 1938).

The proceeding with which the court is concerned in this connection is the attachment proceeding. If the attachment is discharged on the merits, the fact that a suit on an obligation which developed into a cause of action for the plaintiff after the attachment proceedings had been terminated is immaterial. Blankenship v. Staton, 348 S.W.2d 925 (Ky. 1961).
[FN62] Duo-Therm Division, Motor Wheel Corp. v. Sheergrain, Inc., 504 S.W.2d 689 (Ky. 1973); Houma Mortg. & Loan, Inc. v. Marshall, 664 So. 2d 1199 (La. Ct. App. 1st Cir. 1995); Williard v. Federal Surety Co., 91 Mont. 465, 8 P.2d 633 (1932).
[FN63] Bash v. Howald, 59 Okla. 116, 157 P. 1154 (1916), error dismissed, 244 U.S. 648, 37 S. Ct. 743, 61 L. Ed. 1370 (1917).
[FN64] Even though an attaching creditor may recover judgment in the main action, he is concluded from saying the proceedings in attachment were not wrongful if he fails to sustain the attachment. Waring v. Fletcher, 152 Ind. 620, 52 N.E. 203 (1898).
[FN65] Maib v. Maryland Cas. Co., 17 Wash. 2d 47, 135 P.2d 71 (1943).
[FN66] American Surety Co. of New York v. Florida Nat. Bank & Trust Co., 94 F.2d 126 (C.C.A. 5th Cir. 1938); Hobson & Associates, Inc. v. First Print, Inc., 798 S.W.2d 617 (Tex. App. Amarillo 1990).
[FN67] Boatwright v. Stewart, 37 Ark. 614 (1881).
[FN68] Jansen v. Pollastrine, 10 Alaska 316, 1942 WL 1310 (Terr. Alaska 1942); Siegel v. Northern Boulevard & 80th St. Corp., 31 A.D.2d 182, 295 N.Y.S.2d 804 (1st Dep't 1968).
[FN69] Huzzy v. Culbert Const. Co., 5 Wash. App. 581, 489 P.2d 749 (Div. 1 1971).

Malice, want of probable cause, and wrongfulness, as essential elements

The rule, according to some cases, is that the common-law action of malicious and wrongful attachment depends upon the presence of both malice and want of probable cause.[FN16] According to other cases, however, the rule, independent of statute, is that the mere fact that an attachment was wrongfully issued and levied gives rise to a cause of action for damages, even though the plaintiff was not actuated by malice or had probable cause for the belief that ground for attachment existed.[FN17] Under this rule it has been held that in an action by one whose property is wrongfully seized in attachment proceedings against another, malice and want of probable cause are not essential elements of the action.[FN18]

Under statutes expressly or impliedly creating a cause of action for an attachment or garnishment if it is wrongful, or if the proceeding is dismissed, it is generally held that malice and want of probable cause need not be shown to warrant recovery.[FN19] However, some statutes specifically make want of probable cause an element of a cause of action for wrongful attachment or garnishment;[FN20] and under such statutes it has also been deemed essential to the cause of action that the suing out of the writ was wrongful.[FN21]


[FN16] Ray v. City Bank & Trust Co. of Natchez, Miss., 358 F. Supp. 630, 36 Ohio Misc. 83, 65 Ohio Op. 2d 112, 13 U.C.C. Rep. Serv. (CBC) 355 (S.D. Ohio 1973); Delisi v. Garnett, 257 Md. 4, 261 A.2d 784 (1970); Montgomery v. Hunt, 227 Mont. 279, 738 P.2d 887 (1987); Carlson v. Schroeder, 164 Neb. 443, 82 N.W.2d 416 (1957); Clarence E. Morris, Inc. v. Vitek, 85 Nev. 652, 461 P.2d 864 (1969); Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 138 N.C. 174, 50 S.E. 571 (1905); Fortman v. Rottier, 8 Ohio St. 548, 1858 WL 44 (1858); Crouter v. United Adjusters, Inc., 259 Or. 348, 485 P.2d 1208 (1971), appeal after remand, 266 Or. 6, 510 P.2d 1328 (1973).
[FN17] Neri v. J.I. Case Co., 207 Ill. App. 3d 409, 152 Ill. Dec. 488, 566 N.E.2d 16 (2d Dist. 1991); Lukens v. First Nat. Bank, 151 Kan. 937, 101 P.2d 914 (1940); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996), reh'g denied, (Apr. 5, 1996) and review denied, (June 11, 1996); Dickinson v. Maynard, 20 La. Ann. 66 (1868); Delisi v. Garnett, 257 Md. 4, 261 A.2d 784 (1970); Farrar v. Talley, 68 Tex. 349, 4 S.W. 558 (1887); Carothers v. McIlhenny Co., 63 Tex. 138, 1885 WL 7001 (1885).
[FN18] Neri v. J.I. Case Co., 207 Ill. App. 3d 409, 152 Ill. Dec. 488, 566 N.E.2d 16 (2d Dist. 1991); Miller v. Clayco State Bank, 10 Kan. App. 2d 659, 708 P.2d 997 (1985), review denied, (Dec. 19, 1985) and (declined to follow on other grounds by, Delta Fertilizer, Inc. v. Weaver, 547 So. 2d 800 (Miss. 1989)); Peterson v. Wiesner, 62 Nev. 184, 146 P.2d 789 (1944).
[FN19] Pollock v. Gantt, 69 Ala. 373, 1881 WL 1163 (1881); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996), reh'g denied, (Apr. 5, 1996) and review denied, (June 11, 1996); Glover v. Hanks, 396 So. 2d 949 (La. Ct. App. 1st Cir. 1980), writ denied, 398 So. 2d 526 (La. 1980); Grimestad v. Lofgren, 105 Minn. 286, 117 N.W. 515 (1908); Oklahoma State Bank of Ada v. Reed, 143 Okla. 131, 288 P. 281, 85 A.L.R. 635 (1929); Gordon v. Kentucky Midland Coal Co., 152 Tenn. 367, 278 S.W. 68, 42 A.L.R. 1052 (1925); Lamb v. Day & Peck, 8 Vt. 407 (1836); Commercial Inv. Trust v. William Frankfurth Hardware Co., 179 Wis. 21, 190 N.W. 1004 (1922).

Cause of action for wrongful garnishment or attachment, unlike cause of action for malicious prosecution based upon wrongful garnishment, does not require that malice and lack of probable cause be shown. Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996), reh'g denied, (Apr. 5, 1996) and review denied, (June 11, 1996).

Failure to substantiate allegations that the actions were willful and malicious will not defeat a claim for actual damages, where it is shown that the garnishment was wrongful. Lukens v. First Nat. Bank, 151 Kan. 937, 101 P.2d 914 (1940).
[FN20] Clarence E. Morris, Inc. v. Vitek, 85 Nev. 652, 461 P.2d 864 (1969); Harris v. Lipson, 167 Va. 365, 189 S.E. 349, 108 A.L.R. 912 (1937); Brown v. Peoples Nat. Bank of Wash., 39 Wash. 2d 776, 238 P.2d 1191 (1951) (distinguished by, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)).
[FN21] Brown v. Peoples Nat. Bank of Wash., 39 Wash. 2d 776, 238 P.2d 1191 (1951) (distinguished by, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)

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Pleading

As in other types of actions, all the elements essential to the existence of the cause of action must be set forth in the plaintiff's pleading to recover damages for a wrongful or malicious attachment or garnishment;[FN45] and the same is true, of course, as to a counterclaim in which such a recovery is sought.[FN46] In an action seeking to enforce the common-law remedy for malicious attachment, the complaint, petition, or declaration must contain substantially the same allegations as are essential in stating a cause of action for malicious prosecution.[FN47] Allegations that the writ was sued out maliciously and without probable cause are indispensable where the action is based upon malicious attachment[FN48] or where the plaintiff wishes to recover exemplary damages.[FN49] In setting out these elements, malice and want of probable cause need not be alleged in terms; it is deemed sufficient if it contains language and sets out facts of the same import as the words in question.[FN50]

Where the action is based upon the statute and only actual damages are claimed, it is unnecessary to allege malice and want of probable cause[FN51] unless the statute makes them elements of the cause of action.[FN52] It has been held that in an action by one whose property has been wrongfully seized in attachment proceedings against another, malice and want of probable cause need not be pleaded.[FN53]

The allegations concerning damages should show the real damages sustained and intended to be relied on. The complaint, or the like, is good without an averment of special damage, as the law implies nominal damages from the act complained of,[FN54] but if the plaintiff wishes to recover special damages, he must embody appropriate averments in his pleading.[FN55] Damages to credit, where recoverable,[FN56] are special damages and must be pleaded.[FN57] The same is true of damages to reputation[FN58] and of attorneys' fees for defending the attachment or garnishment.[FN59]

All substantive defenses are available to the defendant in an action for wrongful attachment,[FN60] and he may also allege any matters which will reduce the amount of recovery.[FN61]


[FN45] Bulk Oil (ZUG) A.G. v. Sun Co., Inc., 583 F. Supp. 1134 (S.D.N.Y. 1983), judgment aff'd, 742 F.2d 1431 (2d Cir. 1984), cert. denied, 469 U.S. 835, 105 S. Ct. 129, 83 L. Ed. 2d 70 (1984); Fain v. Hutto, 236 Ga. 915, 225 S.E.2d 893 (1976) (distinguished by, Jacobson v. Garland, 227 Ga. App. 81, 487 S.E.2d 640 (1997)); Grocery Supply Co. v. Winterton Food Stores, 722 So. 2d 94 (La. Ct. App. 2d Cir. 1998), reh'g denied, (Jan. 14, 1999); Musso v. Aiavolasiti, 439 So. 2d 1184 (La. Ct. App. 4th Cir. 1983); Deitz v. Palaigos, 120 Md. App. 380, 707 A.2d 427 (1998), reconsideration denied, (Apr. 28, 1998) and cert. denied, 351 Md. 162, 717 A.2d 385 (1998); Linsin v. Transportation Ins. Co., 691 S.W.2d 393 (Mo. Ct. App. E.D. 1985); Aetna Cas. & Sur. Co. v. Raposa, 560 S.W.2d 106 (Tex. Civ. App. Fort Worth 1977), writ granted, (Jan. 18, 1978) and cause dismissed, (Jan. 18, 1978).

Forms
Complaint, petition, or declaration—Wrongful attachment. 2B Am. Jur. Pleading and Practice Forms, Attachment and Garnishment, Form 651–659.
[FN46] National Bond & Investment Co. v. McCoy, 263 S.W. 1089 (Tex. Civ. App. Amarillo 1924).
[FN47] Carlson v. Schroeder, 164 Neb. 443, 82 N.W.2d 416 (1957).

Where there was no allegation in connection with a count of the complaint, which alleged vexatious litigation, that broker's prior litigation had terminated in favor of landowners, attachment which was incident to the prior suit did not provide a cause of action for wrongful attachment against broker. Hiers v. Cohen, 31 Conn. Supp. 305, 329 A.2d 609 (Super. Ct. 1973).
[FN48] Beyersdorf v. Sump, 39 Minn. 495, 41 N.W. 101 (1888); Carlson v. Schroeder, 164 Neb. 443, 82 N.W.2d 416 (1957); Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 138 N.C. 174, 50 S.E. 571 (1905); Crouter v. United Adjusters, Inc., 259 Or. 348, 485 P.2d 1208 (1971), appeal after remand, 266 Or. 6, 510 P.2d 1328 (1973).
[FN49] United States Fidelity & Guaranty Co. v. Miller, 218 Ala. 158, 117 So. 668 (1928); Stumpf v. Pederson, 180 Okla. 408, 70 P.2d 101 (1937); Stevens v. Simmons, 61 S.W.2d 122 (Tex. Civ. App. El Paso 1933) (garnishment); Snyder v. Stokes, 34 S.W.2d 918 (Tex. Civ. App. San Antonio 1930), writ granted, (July 8, 1931) and aff'd, 55 S.W.2d 557 (Tex. Comm'n App. 1932) (attachment).
[FN50] Spaids v. Barrett, 57 Ill. 289 (1870).

When the facts set forth in a complaint are such that if true the law will infer both malice and want of probable cause from them, they are tantamount to specific allegations of malice and want of probable cause. Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 138 N.C. 174, 50 S.E. 571 (1905).

A complaint which alleges that the affidavit for the attachment was wholly false in every particular, and that the plaintiff in the attachment suit knew it to be so when he made it, is sufficient as against a general objection at the trial to the admission of any evidence under it. Beyersdorf v. Sump, 39 Minn. 495, 41 N.W. 101 (1888).

In Forrest v. Collier, 20 Ala. 175, 1852 WL 286 (1852), it was held that an averment that the attachment was done "wrongfully and fraudulently, to injure," took the place of an averment of malice.
[FN51] Reliable Mut. Hail Ins. Co. v. Rogers, 61 Okla. 226, 160 P. 914 (1916).
[FN52] § 605.
[FN53] Peterson v. Wiesner, 62 Nev. 184, 146 P.2d 789 (1944).
[FN54] Donnell v. Jones, 13 Ala. 490, 1848 WL 426 (1848).
[FN55] Kilbourne v. McAllister, 179 Okla. 267, 65 P.2d 516 (1936).
[FN56] § 632.
[FN57] Bradford v. Lawrence, 18 Ala. App. 138, 90 So. 809 (1921); Kyd v. Cook, 56 Neb. 71, 76 N.W. 524 (1898) (holding that a complaint specifically alleging that the plaintiff's credit was injured and destroyed because of the fact that the sheriff attached and removed his property and locked up and closed his place of business is broad enough to admit evidence of all damages sustained by the plaintiff in consequence of the wrongful attachment, including his loss of character, credit, and business).
[FN58] If there is no averment of particular damage resulting from the loss of reputation, credit, or business, or of the withdrawal of particular customers, proof of such loss, if properly objected to, is not admissible. Donnell v. Jones, 13 Ala. 490, 1848 WL 426 (1848).
[FN59] Adair v. James M. Peterson Bank, 61 Utah 159, 211 P. 683 (1922).

A garnishment which becomes wrongful may provide the rightful owner of the funds with a cause of action against the garnishment creditor for all actual damages sustained,[FN1] without proof of malice or lack of probable cause.[FN2] A statute may provide that a garnishee may be awarded damages if the answer of a garnishee is controverted without good cause.[FN3] Legal malice may be a required element for a wrongful garnishment action, and such legal malice may be inferred from a lack of probable cause or gross negligence or great indifference to persons, property, or the rights of others.[FN4] Postjudgment garnishment is wrongful if the factual allegations in the garnishor's affidavit, which are required to indicate that, within the garnishor's knowledge, the debtor does not possess property in the state subject to execution sufficient to satisfy the judgment, are false.[FN5]

Similarly, a debtor may have the right to recover wages, wrongfully paid, if there is a failure to account for exemptions or if the judgment is satisfied, expires, voided or otherwise fails.[FN6] However, some wage garnishment statutes, while granting a person whose wages have been wrongfully garnished a cause of action against one or more of the parties to the garnishment proceeding, may decline to permit that claim to be asserted in the garnishment proceeding itself.[FN7] Moreover, although a garnishee who pays a garnishor more than the garnishor is entitled to is relieved from liability, that garnishee may be required to make up any overpayment.[FN8]


[FN1] Miller v. Clayco State Bank, 10 Kan. App. 2d 659, 708 P.2d 997 (1985); Mihalogiannakis v. Jones, 563 So. 2d 306 (La. Ct. App. 4th Cir. 1990).
[FN2] Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996).
[FN3] Fletcher v. Anderson, 29 Kan. App. 2d 784, 31 P.3d 313 (2001).
[FN4] Burshan v. National Union Fire Ins. Co. of Pittsburgh, PA, 805 So. 2d 835 (Fla. Dist. Ct. App. 4th Dist. 2001).
[FN5] Jamison v. National Loan Investors, L.P., 4 S.W.3d 465 (Tex. App. Houston 1st Dist. 1999).
[FN6] In re Perry, 48 B.R. 591 (Bankr. M.D. Tenn. 1985).
[FN7] Baptist Convention of Georgia v. Henry, 187 Ga. App. 551, 370 S.E.2d 813 (1988)

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