Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-4518 _____________________________ KARLA ANN WILLIAMS, Appellant, v. M & R CONSTRUCTION OF NORTH FLORIDA, INC., a Florida corporation, SHIV CRUPA, INC., a Florida corporation, d/b/a BEST WESTERN STARKE and MOTEL BEST WESTERN MOTOR INN, MARK WILLIAMS, and SAM PATEL, Appellees. _____________________________ On appeal from the Circuit Court for Bradford County. David P. Kreider, Judge. October 9, 2020 BILBREY, J. Karla Ann Williams appeals the denial of her emergency motion to stay a writ of execution. We hold that the real and personal property at issue here are entireties property not subject to levy for an individual debt and as such her motion should have been granted. We therefore reverse the trial court’s denial of Appellant’s motion. A judgment in the amount of $15,000 was entered against Appellant in November 2018 by the trial court in this case. Appellant was the sole judgment debtor. The judgment creditor was Appellee, Sam Patel, a third-party plaintiff in the case. 1 A separate judgment had previously been entered against Appellant’s husband, Mark Williams, in an unrelated case. The judgment was entered in Alachua County in 2013 and was in the amount of $81,955. Mark Williams was the sole judgment debtor. The judgment creditors in that case were Peter M. Tydir and General Mechanical Corporation. The judgment creditors in those separate cases sought separate writs of executions on real property and personal property owned by Appellant and Mark Williams as tenants by the entireties. 2 Appellant challenged, by an emergency motion, that writ while her husband challenged in a separate proceeding the writ of execution entered on his individual debt. 3 The trial court denied Appellant’s emergency motion, and she now challenges that denial. 1 The other Appellees are included in this case only by operation of rule 9.020(g)(2), Florida Rules of Appellate Procedure. They have not filed a brief and apparently have no interest in the outcome of this appeal. 2 Mr. Patel contests that the subject personal property is owned as tenants by the entireties. But Appellant submitted the affidavit of Mark Williams in which he swore that personal property was jointly purchased with marital funds. Furthermore, there is a presumption that a married couple holds personal property as tenants by the entireties. See Beal Bank, SSB v. Almand & Assocs. 780 So. 2d 45, 57 (Fla. 2001); see also In re Hinton, 378 B.R. 371 (Bankr. M.D. Fla. 2007). Mr. Patel did not rebut that presumption. 3 This case concerns only the writ of execution levied on entireties property for the individual indebtedness of Appellant. 2 Both real and person property are normally “subject to levy and sale under execution to satisfy a judgment.” § 56.061, Fla. Stat. (2019). However, it is well-established that “when property is held as a tenancy by the entireties, only the creditors of both the husband and wife, jointly, may attach the tenancy by the entireties property; the property is not divisible on behalf of one spouse alone, and therefore it cannot be reached to satisfy the obligation of only one spouse.” Beal Bank, SSB v. Almand & Assocs. 780 So. 2d 45, 53 (Fla. 2001) (emphasis added); see also Quick v. Leatherman, 96 So. 2d 136, 138 (Fla. 1957) (explaining an estate by the entirety is a “peculiar type of tenancy” which can be held only by married persons and that each spouse “owns and controls the whole”). “Jointly” as used in Beal Bank does not mean that an individual creditor of one spouse and an individual creditor of the other spouse may act together to levy on entireties property. Rather, the creditor or creditors seeking to levy the property must have a joint debt owed by both spouses. This is so because the “[p]roperty held by a married couple as tenants by the entireties belongs to neither spouse individually.” In re Hinton, 378 B.R. 371, 277 (Bankr. M.D. Fla. 2007). As such, the entireties property cannot be attached to satisfy an individual spouse’s debt. See Sharp v. Hamilton, 495 So. 2d 235, 238 (Fla. 5th DCA 1986) (“Property held as a tenancy by the entirety is not subject to the lien of a judgment against one tenant alone.”); Teardo v. Teardo, 461 So. 2d 276 (Fla. 5th DCA 1985) (same); In re Willoughby, 212 B.R. 1011, 1015 (Bankr. M.D. Fla. 1997) (explaining that under Florida law “one spouse may not transfer or encumber” property held in a tenancy by the entireties without consent of the other spouse). The trial court thus erred in concluding that the properties owned by Appellant and Mark Williams as tenants by the entireties were subject to a writ of execution on one spouse’s indebtedness. That the other spouse is also individually indebted to a different creditor does not establish a joint debt. 4 4 It should be noted that the judgment owed by Appellant and Mr. Patel’s ability to execute on any non-exempt property are not affected by our holding. 3 REVERSED and REMANDED. RAY, C.J., and JAY, J., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Katelyn T. Hardwick and James J. Taylor, Jr., of Taylor Law Firm P.A., Keystone Heights, for Appellant. Peter A. Robertson and William Douglas Stanford, Jr., of The Robertson Firm, St. Augustine, for Appellees. 4