Werth v. Top Bail Surety, Inc. ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JERZY WIRTH AND FLOYD )
WHITE, )
Plaintiffs, )
)
V. ) C.A.No. N14C-02-137 MBO
)
TOP BAIL SURETY, INC., JOHN S. )
DONAHUE IV, AND HARRY O. )
JENNINGS, )
)
Defendants. )
ORDER
Jerzy Wirth and Floyd White (“Wirth,” “White” and collectively, the
“Plaintiffs”) are judgment creditors of John S. Donahue IV, Harry O. Jennings, and
Top Bail Surety, Inc. (““Donahue,” “Jennings,” and “Top Bail,” collectively “the
Defendants”). Plaintiffs have attempted execution upon a judgment owed jointly
and severally by the Defendants, by, inter alia, serving a Writ of Attachment Fieri
Facias upon 1“ Choice Bail Bonds (“1* Choice”) as garnishee to defendant
Donahue, and by serving a Writ of Capias Ad Satisfaciendum' upon the New Castle
County Sheriff to compel satisfaction of the judgment by defendant Jennings.
| See DEL. CODE ANN. tit. 10, §§ 5051-5053 (2022).
1
STATEMENT OF FACTS
In 2008, the parties were involved in litigation in the Court of Chancery.’ That
litigation resolved on July 10, 2009, by way of an executed Settlement Agreement
and Mutual Release signed by the parties.? On the same date, the parties executed a
Promissory Note whereby the Defendants agreed to pay Wirth the principal sum of
$240,128.00, with interest accruing at 10.5% per year.’ The Promissory Note
required monthly payments and included default provisions for, among other things,
failure to make payments as agreed. In 2011, Defendants defaulted on the
Promissory Note.
On February 14, 2014, Wirth filed a Complaint in this Court, seeking a
judgment against Defendants resulting from the debt owed from the aforementioned
Court of Chancery litigation.> On February 14, 2018, this Court entered a Stipulated
Judgment for Plaintiffs in the amount of $406,856.37.°
Plaintiffs commenced execution upon the Judgment. Specifically, on
February 6, 2020, the New Castle County Sheriff served a Writ of Attachment Fieri
Facias (“Writ of Attachment Fi. Fa.”) on Duvilla & Co., the registered agent of is
2 See Jennings v. Wirth, C.A. No. 3584-VCS (Del. Ch.).
3 Stipulation of Dismissal, Jennings v. Wirth, C.A. No. 3584-VCS (Del. Ch. July 13, 2009) (D.I.
38); see also Compl., Ex. A, Wirth v. Top Bail Surety, Inc. et al., C.A. No. N14C-02-137 MBO
(D.1. 1).
* Compl., Ex. B.
5 Id On February 1, 2017, plaintiff White filed a motion to intervene. (D.I. 54). On February
22, 2017, the Superior Court granted White’s motion. (D.I. 58).
6 DAI. 76.
2
Choice.” 1 Choice is a bail bond company that Donahue exclusively utilizes to
market and sell bail bonds. The writ was served to seize, from 1*t Choice, Donahue’s
“money, goods, credits and effects, rights, bonds, personal property, BUF amounts
and BUF accounts.”® At that time, Plaintiffs claimed, inter alia, that Donahue was
an employee of 1“ Choice, and attempted to secure a wage attachment from 1®
Choice to satisfy the judgment.’
On February 26, 2020, 1% Choice filed a timely Response to the Writ of
Attachment Fi. Fa.!° 1‘ Choice claimed Donahue was an independent contractor,
not subject to wage attachment.'! 1%* Choice denied possessing or controlling any of
Donahue’s personal property, but conceded it maintains a $40,000.00 Built-Up Fund
Account (“BUF Account”) controlled by Lexington National Insurance Company
(“Lexington”), earmarked for Donahue once all bail bonds issued by Donahue are
7 Sheriffs Return, Wirth v. Top Bail Surety, Inc. et al., C.A. No. N14C-02-137 MBO (Del. Super.
Ct. Feb. 11, 2010) (D.I. 91).
8 Issuance of Writ, Wirth v. Top Bail Surety, Inc. et al., C.A. No. N14C-02-137 MBO (Del.
Super. Ct. Jan. 24, 2020) (D.I. 90). A Built-Up Fund account, or “BUF” account, is an account
which is required and controlled by an insurance company, serving as collateral for a bail agent’s
bonds.
9 Plaintiffs have since abandoned the claim that Donahue is a 1“ Choice employee. On May 13,
2021, White told the Court Plaintiffs were “willing to accept that [Donahue] is an independent
contractor...” See May 13, 2021 Garnishment Hearing Trans. at 7:4-8. Later, during the same
hearing, White reiterated, “the plaintiffs collectively take the position that Mr. Donahue is an
independent contractor, as represented by [1* Choice’s] counsel.” Jd. at 62:10-14.
10 18t Choice Response to Writ of Attachment Fi. Fa., Wirth v. Top Bail Surety, Inc. et al., C.A.
No. Ni4C-02-137 MBO (Del. Super. Ct. Feb. 26, 2020) (D.I. 93) (hereinafter “1* Choice
Answer”). The Court will treat 15‘ Choice’s timely responsive pleading as its “Answer” to the Writ
of Attachment Fi. Fa. See Super. Ct. Civ. R. 5(aa)(2).
"18! Choice Answer § 3.
exonerated.!? As to the money in the BUF Account, 1* Choice claims (1) the account
serves as collateral for issued bail bonds, (ii) Lexington exclusively controls the BUF
Account, and (iii) the account is not subject to attachment.!?
On May 6, 2020, Plaintiffs filed a Memorandum of Law in support of the Writ
of Attachment Fi. Fa.'* Contrary to its representation in the February 6, 2020 Writ
of Attachment Fi. Fa., Plaintiffs argued Donahue was working as an independent
contractor, and each time Donahue sold a bail bond through 1“ Choice, 1*t Choice
would owe Donahue a commission. This commission, for each bond sold, is
“income,” subject to attachment.'> As to the BUF Account funds, Plaintiffs request
this Court order 1 Choice, as garnishee, to submit security in the amount of
$40,000.00 for the BUF Account funds in 1%‘ Choice’s possession.”'®
On May 7, 2021, 1% Choice filed a response to Plaintiffs’ May 6, 2020
Memorandum of Law.'’ 1 Choice asserted: (1) Donahue is not an employee,
2 1d. 95, 8.
3° Id. § 7. On March 3, 2020, Plaintiffs filed a “Traverse of Garnishee 1° Choice Bail Bonds,
LLCs’ Answer,” summarily indicating that 15‘ Choice’s Answer was “evasive, untrue or legally
insufficient.” D.I. 96.
14 Pls.’ Notice for Demand to Sale Levied Real Estate, Wirth v. Top Bail Surety, Inc. et al., C.A.
No. N14C-02-137 MBO (Del. Super. Ct. May 6, 2020) (D.I. 102). Plaintiffs attached the
Memorandum of Law to a “Demand for the NCC Sheriff to Sale Levied Real Estate under Writ of
Fi. Fa.”
IS Id J 14(a).
'6 Id 411. Plaintiffs’ request for security is inconsistent with its original position — that it had a
present right to attach the BUF Account funds.
'7 18t Choice Response to White’s Mem. Regarding Writ of Fi. Fa., Wirth v. Top Bail Surety, Inc.
et al, C.A. No. N14C-02-137 MBO (Del. Super. Ct. May 7, 2021) (D.I. 131) (hereinafter “1st
Choice Resp. to Fi. Fa. Mem.”).
4
therefore he is not subject to wage attachment;'* (2) the BUF Account is not subject
to attachment because (a) it is controlled by Lexington; and (b) 1“ Choice lacks the
authority to disburse the BUF Account; '? and (3) 1‘ Choice does not possess any
Donahue property, beyond the BUF Account (controlled by Lexington).7°
DISCUSSION
A. The Writ of Attachment Fieri Facias
A Writ of Attachment Fieri Facias is a form of legal process used to enforce a
judgment.?! The authority for a Writ of Attachment Fieri Facias is statutory:
The plaintiff in any judgment in a court of record, or any person for
such plaintiff lawfully authorized, may cause an attachment, as well as
any other execution, to be issued thereon, containing an order for the
summoning of garnishees, to be proceeded upon and returned as in the
cases of foreign attachment. The attachment, condemnation, or
judgment thereon, shall be pleadable in bar by the garnishee in any
action against the garnishee at the suit of the defendant in the
attachment.””
Attachment through garnishment allows a judgment creditor to “make the debt of
damages recovered by the judgment out of the defendant’s property not in his legal
\8 1S Choice asserts Donahue is not an employee, therefore “1*' Choice cannot garnish these
amounts pursuant to [10 Del. C. § 5031].” See id § 14. Further, 1* Choice claimed that, as an
independent contractor, Donahue does not receive “wages,” and therefore “there is nothing to
gamish,.” Jd. J 21.
'9 Id. 94 8, 9.
20 1d 78.
21 2 Victor B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the State
of Delaware § 1150 (1906).
22 Dex. Cope ANN. tit. 10, § 5031 (2022) (Execution attachment).
5
possession, but in the possession of another.” “Garnishment attaches at the time
the garnishee is served and continues upon all moneys which accrue to the debtor’s
credit until the garnishment is answered.””*
A garnishee is a person or entity, not the debtor, who a judgment creditor
believes possesses “goods, chattels, rights, credits, moneys, effects, lands and
tenements” of the debtor.?> By attaching the property of the defendant debtor in the
possession of the garnishee, the judgment creditor can attempt to use legal process
to satisfy the judgment owed.
Judgment creditors’ rights to recover from a garnishee are limited, particularly
if the debtor’s right to recover their property from the garnishee is constrained:
An attaching creditor stands in no better position than the defendant in
the judgment, as to the collection of a debt due to the latter from the
garnishee. The right of such creditor to recover from the garnishee
depends upon the subsisting rights between the garnishee and the debtor
in the attachment; and the test of the garnishee’s liability is that he has
funds, property or credits in his hands belonging to the debtor, for
which the latter would have the right to sue. The garnishee stands in
every respect in the same position as if the suit had been brought by his
own creditor. When a debt is due from a garnishee to a judgment debtor
by virtue of an agreement existing between them, the garnishee is
entitled to avail himself of all the defenses that could be made against
the party to whom the debt is owing and with whom the contract was
made...*°
23 2 Woolley, Delaware Practice § 1152.
24 Cooper’s Home Furnishings Inc. v. Lolley, 270 A.2d 676, 678 (Del. Super. Ct. Oct. 9, 1970).
Plaintiffs served 15* Choice’s registered agent on February 6, 2020 at 12:20 P.M., and 1° Choice
filed its Answer to the Writ of Attachment Fi. Fa. on February 26, 2020. See D.I. 91, 93.
25 DEL. CODE ANN. tit. 10, § 3508.
26 2 Woolley, Delaware Practice § 1190.
If the debtor cannot compel the garnishee to pay money or deliver certain property
to him in an action at law, the creditor has no greater claim by way of garnishment
against the garnishee.”’
(1) Plaintiffs’ Claims as to 1** Choice as Garnishee
There are three general categories of property Plaintiffs seek to attach from 1*
Choice through executing the Writ of Attachment Fi. Fa.: (1) commissions owed
Donahue from the sale of 1‘ Choice bail bonds; (2) the BUF Account; and (3)
miscellaneous Donahue property which Plaintiffs claim are in the possession of 1*
Choice, subject to attachment. It is the Plaintiffs’ burden, to demonstrate by a
preponderance of the evidence, that 1% Choice is in possession of the property
identified in the Writ of Attachment Fi. Fa. subject to attachment.”®
a. Donahue’s Income as an Independent Contractor.
The evidence establishes that Donahue is an independent contractor, and he
accumulates income by exclusively marketing and selling 1 Choice bail bonds.
Donahue completes a sale of 1‘ Choice bail bonds two ways. In the first, he sells a
1° Choice bail bond to a customer, the customer pays Donahue for the bond, with
cash or check, and that check is payable to “John Donahue.””? Donahue retains the
*7 Wilmington Trust Co. v. Barron, 470 A.2d 257, 263 (Del. 1983).
28 Netter v. Stoeckle, 56 A. 604, 605 (Del. Super. Ct. May 26, 1903).
29 Garnishment Hr’g Tr., 26:22-27:6, 29:6-14, Wirth v. Top Bail Surety, Inc. et al., C.A. No.
N14C-02-137 MBO (Del. Super. Ct. May 13, 2021) (D.I. 132) (hereinafter “Garnishment Hr’g
Tr.”).
cash payments and presents the checks to a bank for processing. These transactions
are direct payments to Donahue, where 1 Choice does not receive the customer’s
complete payment for a bail bond.
In a second transaction, Donahue sells a customer a 1* Choice bail bond, but
the customer pays Donahue via credit card, or with a check made out to 1 Choice
as payee.°” Donahue remits this entire payment to 1" Choice, 1 Choice processes
the payment, disburses commissions to itself and Lexington, and then issues
Donahue a check for selling the bail bond to a customer. In this second transaction,
the customer’s payment is received and processed by 1* Choice, before
disbursement to Donahue and Lexington. Donahue’s share of this transaction is
subject to attachment.
1% Choice asserts that because Donahue is an independent contractor, his
income is not subject to attachment. But, an independent contractor’s earnings are,
in fact, subject to attachment. In Delaware Trust Co. v. Carolina Freight Carriers
Corp.,! this Court considered an appeal wherein the judgment creditor was
attempting to satisfy a judgment, and to do so, the plaintiff attempted to compel the
debtor’s employer to produce “records showing the gross net earnings paid to” the
debtor, a truck driver.** The garnishee employer claimed that it was not obliged to
30 Jd. at 30:6-12. Donahue currently lacks the ability to process credit card payments.
31 1986 WL 2831 (Del. Super. Ct. Mar. 5, 1986).
22 Id. at *1.,
produce the debtor’s records because the debtor was not an employee within the
meaning of 10 Del. C. § 4913(c), and his earnings were not subject to attachment.
This Court disagreed:
[T]he earnings of independent contractors may be attached,
notwithstanding the language of 10 Del. C. §4913(c), which does not
include such earnings as wages. The exemption statute states that
“eighty five percent of the wages for labor or service of any person
residing within the State shall be exempt from mesne attachment and
execution attachment process. . .” 10 Del. C. § 4913(a). As noted, the
purpose of this statute is to protect a debtor and a debtor’s family from
the obvious burden associated with a forced reduction in the amount of
take home pay available to a wage earner. Nothing in the language of
this statute suggests that this exemption precludes altogether the
attachment of the earnings of independent contractors. On the contrary,
that the statute distinguishes between wage earners and independent
contractors indicates only that independent contractors are not afforded
the protection of the statute that no more than fifteen percent of the
earnings of persons who are masters of their own time and effort may
be attached.*?
1*' Choice, as garnishee, has an obligation to produce Donahue’s property, in
its possession, subject to attachment. While Donahue’s income, as an independent
contractor, is subject to attachment, 1‘ Choice can only produce Donahue’s property
in its possession, which occurs when 1* Choice processes payments for bail bonds
issued by Donahue-specifically when those payments are remitted by credit card, or
33, Jd. at *3.
by check made payable to 1 Choice. This income is subject to attachment.**
b. The BUF Account.
Plaintiffs assert a BUF Account held by 1 Choice is subject to attachment.
1‘! Choice maintains a BUF Account worth $40,000.00 for Donahue’s benefit but
claims that Lexington exercises exclusive control over the BUF Account, and 1*
Choice lacks the power or authority to release the funds in the account to plaintiffs.*°
That authority rests with Lexington.*°
Plaintiffs have failed to demonstrate Donahue can compel 1* Choice to deliver
the BUF Account to him in an action at law.3?. The evidence before the Court
demonstrates that the BUF Account is in 1“ Choice’s possession, it is created and
maintained to act as security for issued bail bonds, and it is exclusively under
Lexington’s direction and control.?8 Neither Donahue, nor 1* Choice, has the right
34 During the May 13, 2021 Garnishment Hearing, White suggested this Court issue an Order to
prevent Donahue from securing a “windfall” by receiving direct payments from clients, and instead
“require Mr. Donahue to bring all the cash sales into 1“ Choice’s office with his report, turn the
money over to Mr. Clark, then Mr. Clark can issue out whatever checks that he deems appropriate
under the agreements that he has and, in fact, garnish the wages.” Garnishment Hr’g Tr. at 64:2-
9. Not only would this suggested process prevent Donahue from earning any income, but this
requested Court intervention is inconsistent with the basic premise of garnishment — that the
garnishee is responsible to produce the property of the debtor in its possession. Furthermore,
Plaintiffs have not demonstrated that this Court, as a court of law, possesses the authority to act as
suggested. In any event, this Court declines Plaintiffs’ invitation to dictate business practices
between Donahue and 1* Choice.
35 18! Choice Resp. to Fi. Fa. Mem. 8.
36 ld.
37 “The test of the right to garnish is whether or not the garnishee has funds in his hands belonging
to the debtor for which the debtor could bring suit.” K-M Auto Supply, Inc. v. Reno, 236 A.2d 706,
707 (Del. Dec. 4, 1967) (citing 2 Woolley, Delaware Practice § 1179).
38 See Pls.’ Notice for Demand to Sale Levied Real Estate, Ex. C4, Producer Agreement 4 9-10.
10
to access the BUF Account funds until all bail bonds issued by Donahue are
exonerated, and Plaintiffs have not demonstrated otherwise.*? Donahue’s rights to
receive the funds are restricted, and, as Donahue’s rights to access the BUF Account
funds are constrained, Plaintiffs’ ability to attach the funds through garnishment is
unavailable.”
Similarly, in Shakin v. Abrams, a creditor, after obtaining a judgment, sought
to compel the Metropolitan Life Insurance Company (“Met Life”), as garnishee, to
satisfy the judgment out of funds the debtor had deposited with Met Life to protect
a company against potential future losses.*! Specifically, the creditor sought to
compel Met Life to complete an accounting and pay the debt owed plaintiff.” Met
Life objected, claiming that the debt was not subject to garnishment.’ The New
Jersey court, relying exclusively on Delaware Superior Court precedent, agreed,
holding the funds deposited at Met Life were not subject to attachment:
The agreement in question evidences a trust relationship and not that of
a debtor and creditor. And where funds as here are transferred for the
payment of specific claims or as security for a definite purpose, there is
an appropriation or pledge that said funds be used for such specific
purpose; places them beyond the grasp of the creditor or pledgor. The
plaintiff stands in the same shoes as the debtor and any defense good
against the latter would inure to the garnishee.’
39 Id.
40 Netter, 56 A. at 605.
41 173 A. 136 (D.N.J. 1934).
42 Id. at 137.
43 Id
‘4 Td. (citing Netter, 56 A. at 605; Brown v. Hartmann & Fehrenbach Brewing Co., 40 A. 60(Del. Super. Ct. Feb. 16, 1898)).
11
The BUF Account funds are also “security for a definite purpose ... beyond
the grasp of the creditor or pledgor” — they serve as security for the bail bonds
Donahue has already sold through 1‘ Choice. The BUF Account funds are not
subject to attachment.
Accordingly, the Plaintiffs’ request to attach the BUF Account is denied.
Plaintiffs’ request to have the garnishee post security for BUF Account funds is also
denied.
c. Miscellaneous Donahue property allegedly in 1‘* Choice’s possession.
Plaintiffs assert that miscellaneous Donahue property remains in the
possession of 1‘ Choice and is subject to attachment.” Again, it is Plaintiffs’ burden
to demonstrate, by a preponderance of the evidence, that Donahue’s property exists
and is subject to attachment.*© The Court will address Plaintiffs’ request for
production of each specific type of property for attachment:
1. BUF Account funds paid by Donahue and any interest earned thereon:
As indicated infra, BUF Account funds are not subject to attachment.
Plaintiffs’ request is denied.
2. Credit Card Receipts or receivables held by 1* Choice:
45 Pls.’ Notice for Demand to Sale Levied Real Estate at 9-10.
46 Netter, 56 A. at 605.
12
Credit Card payments and check payments processed by 1* Choice which
reflect payments to Donahue (within the relevant time frame) are generally subject
to attachment.
3. Funds of Donahue Deposited in “a Financial Institution,” and bank
statements for Bank of America account ending in 8807:
Plaintiffs have not identified any specific Donahue property in a financial
institution subject to attachment, and Plaintiffs have not demonstrated that funds in
a Bank of America account ending in 8807 (to the extent one may exist) belong to
Donahue. Attachment therefore cannot be granted, and Plaintiffs request is denied.
4. All refunds owed for overpayments to 1" Choice:
1° Choice denies the existence of any overpayment.” Plaintiffs have failed
to identify overpayments subject to attachment. Attachment therefore cannot be
granted, and Plaintiffs’ request is denied.
5. All interest in any bail forfeitures:
1* Choice denies the existence of interest owed Donahue.*® Plaintiffs have
not identified any interest earned, belonging or due to Donahue, in the possession of
1 Choice. Attachment therefore cannot be granted, and Plaintiffs’ request is denied.
6. Rights and credits in other contracts, assignments, and agreements,
including leases or rental agreements between 1 Choice and any member
and Donahue:
47 See 1% Choice Resp. to Fi. Fa. Mem 14(f) (D.I. 131).
48 Id.
13
Plaintiffs have asserted an entitlement to any “rights” and “credits” of
Donahue’s in 1‘ Choice’s possession, subject to attachment. Specifically, Plaintiffs
argue an entitlement to any “rights” which emanate from any contract to which
Donahue is a party.”? For example, Plaintiffs claim that because Donahue and 1*
Choice, through its owner, Harry Clark, have entered a verbal agreement for
Donahue to exclusively market and sell 1*t Choice bail bonds, Donahue’s “right” to
sell bonds, and all that flows from that “right,” including but not limited to income,
is subject to garnishment.°° In fact, Plaintiffs argue they are entitled to proceeds
from any and all “verbal agreements” between Donahue and 1* Choice, whether they
involve rental income,*! proceeds from cash bails,** or funds received as a result of
processing credit cards.°* 1 Choice has denied the existence of any aforementioned
agreements.*4
Plaintiffs’ claim of entitlement to “rights” and “credits” is inconsistent with
Delaware law. “It is well settled that not all rights are subject to attachment.”°° The
49 Garnishment Hr’g Tr. at 43:11-22.
50 Id.
3! Td. at 55:4-10.
52 Id. at 55:16-20.
3 Id. at 56:3-5.
54 15t Choice Resp. to Fi. Fa. Mem. 4 14(g).
55 McNeilly v. Furman, 95 A.2d 267, 271 (Del. 1953) (citing Hart v. Seacoast Credit Corp., 169
A. 648, 649 (N.J. Ch. 1933).
14
terms “rights” and “credits” “imports a fixed monetary obligation.”°° As noted in
Woolley:
Of the rights and credits of the defendant that are liable to attachment,
simple contract debts due the defendant are the most common
illustration. A debt secured by a mortgage, or a debt by judgment and
execution levied, is subject to attachment. The interest or share of an
heir at law in recognizance in the Orphan’s Court is likewise liable to
attachment, but the interest of an heir at law in intestate lands cannot be
attached.*”
In McNeilly v. Furman, the Delaware Supreme Court recognized that, in
practice, the garnishment statute has been construed to apply to contract obligations
liquidated or readily capable of liquidation, and “specific statutory authority” for
attachment to a right or credit is required.** Plaintiffs have not identified any contract
obligation, or any other “right” or “credit,” which has either been liquidated or is
readily capable of liquidation. Nor have they identified a statute that authorizes
attachment to a specific “right.” Attachment therefore cannot be granted, and
Plaintiffs’ request is denied.
7. All business records including records of bails sold by Donahue and
accounting and payment records related to Donahue including copies of
1099s and LLC distributions and records and copies of documents related
to cash bails, and cash bail receipts placed by Donahue with any court or
federal agency:
%6 Jd. at 271.
57 2 Woolley, Delaware Practice § 1179.
8 McNeilly, 95 A.2d at 271 (“The inference seems clear that specific statutory authority therefor
would be required.”),
15
1% Choice denies possessing any of Donahue’s business records.*?
Additionally, 1** Choice’s business records are not the property of Donahue and are
not subject to attachment. Attachment therefore cannot be granted, and Plaintiffs’
request is denied.
8. Office equipment and supplies:
1% Choice denies possession any office equipment or supplies belonging to
Donahue,” and Plaintiffs have not identified specific office equipment or supplies
belonging to Donahue possessed by 1% Choice. Attachment therefore cannot be
granted, and Plaintiffs’ request is denied.
B. The Writ of Capias Ad Satisfaciendum
The authority for a writ of capias ad satisfaciendum is also statutory. The
issuance of the writ includes specific prerequisites and requirements which, if not
followed, are fatal to the validity of the writ. Specifically, 10 Del. C. § 5051
provides:
(a) No writ of capias ad satisfaciendum shall be issued upon any
judgment in a civil action against any person in this State, until a writ
of fieri facias on the judgment has issued, and it appears from a return
of such fieri facias, that the defendant therein has not either real, or
personal property within the county sufficient to satisfy the debt, or
damages in the fieri facias expressed; or until the plaintiff in such
judgment, or some credible person for the plaintiff, makes a written
affidavit, to be filed in the Prothonotary’s office before the issuing of
the writ, stating that he or she verily believes that the defendant has not
59 18 Choice Resp. to Fi. Fa. Mem. at 5 n.8.
6 Id at] 14(i).
16
either real, or personal, estate sufficient to satisfy the debt, interest and
costs contained in such judgment.
(b) Any writ of capias ad satisfaciendum issued, contrary to the
provision in subsection (a) of this section shall be void, and the plaintiff
obtaining such writ shall be liable to all the costs of the same.°!
In addition to the specific statutory requirements of § 5051, 10 Del. C. § 5052
requires the plaintiff seeking a writ of capias ad satisfaciendum to complete
and file an Affidavit of Fraud, specifically setting forth the debtor’s alleged
fraudulent transactions. Section 5052 provides, in pertinent part:
plaintiff is liable to defendant for “all costs of the same.
No writ of capias ad satisfaciendum shall be issued out of any court of
this State upon a judgment in a civil action, against any person in this
State, nor shall any person be imprisoned for the nonperformance of a
judgment rendered in any court for the payment of money, until the
plaintiff ... in addition to the requirement of § 5051 . . make a written
affidavit ... stating that the defendant in such judgment is justly
indebted to the plaintiff in a sum exceeding $50, and that he or she
verily believes the defendant has secreted, conveyed away, assigned,
settled or disposed of either money, goods, chattels, stocks, securities
for money, or other real, or personal estate, of the value of more than
$50, with intent to defraud his or her creditors; and shall moreover, in
such affidavit, specify and set forth the supposed fraudulent
transactions.
Failure to meet the statutory requirements of § 5052 renders the writ void, and the
2963
61 Dev. CODE ANN. tit. 10, § 5051 (2022) (Issuance of writ).
62 See id. § 5052 (emphasis added); also see Johnson v. Temple, 4 Del. 446, 447 (Del. Super. Ct.
1846) (“[t[]he writ of ca. sa., should not be issued without an affidavit charging the defendant with
fraud.)
63 Id. § 5052(b). Consistent with § 5052’s requirement that the Affidavit specify and set forth
the fraudulent transactions, Superior Court Civil Rule 9(b) requires that in a Complaint alleging
fraud, those allegations must be pled with particularity. Super. Ct. Civ. R. 9(b). To satisfy this
17
On June 23, 2021, Plaintiffs served a Writ of Capias Ad Satisfaciendum on
the New Castle County Sheriff to take Defendant Jennings into custody—to compel
Jennings to satisfy the judgment. According to the Praecipe, the Sheriff was to
keep Jennings in custody until the entire balance of the judgment is paid, or Jennings
pays “at least $165,000.00 in cash or certified funds.” The writ includes an
affidavit, which indicates Jennings is “justly indebted to White in a sum exceeding
$50.00”; Jennings is “about to abscond and did say to White on two occasions .. .
that he intended to move to the State of Florida;” and Jennings informed White “he
had no assets that could be applied to the satisfaction of the aforesaid judgment.”®
The affidavit further avers that Jennings possesses personal property which could be
used to satisfy the judgment, including a Derringer firearm; three vehicles;
particularity requirement, a litigant “must state the time, place, and contents of the alleged fraud,
as well as the individual accused of committing the fraud.” Universal Capital Management, Inc.
v. Mieco World, Inc., 2012 WL 1413598, at *2 (Del. Super. Ct. Feb. 1, 2012) (quoting Northpointe
Holdings v. Nationwide Emerging Managers, LLC, 2010 WL 3707677, at *8 (Del. Super. Ct. Sept.
14, 2010).
64 Pls.” Writ of Capias Ad Satisfaciendum, Wirth v. Top Bail Surety, Inc. et al., CA. No. N14C-
02-137 MBO (Del. Super. Ct. June 23, 2021) (D.1. 139) (hereafter “Pls.” Writ”). During the August
27, 2021 oral argument on Defendant Jennings Motion to Vacate the Writ of Capias Ad
Satisfaciendum, White asserted the writ was intended to coerce a debtor to pay a debt:
The entire intent of a capias ad satisfaciendum, Your Honor, is coercive. Okay? It
is to take someone who has the means to either partially or fully satisfy a judgment
to coerce them to pay. And that is exactly the situation here.... So what this does,
essentially, is force Mr. Jennings to make a decision. He can either remain in jail
and be defiant or he can pony up.
See Aug. 27, 2021 Oral Arg. Tr., 18:10-22.
65 See Pls.’ Writ.
66 See id, Affidavit of Plaintiff.
18
$12,000.00 in a Wells Fargo bank account; “money on deposit at TD and Citizen’s
Bank,” and miscellaneous “corporate stock.” White claims, without providing any
evidence, that Jennings has “secreted, conveyed away, assigned, settled, or disposed
of [personal property] with intent to defraud his creditors.”°”
On June 18, 2021, Jennings filed a Motion to Vacate the Writ of Capias Ad
Satisfaciendum.® Jennings argues Plaintiffs failed to specify “the actual, alleged
fraudulent transactions.”©? Jennings also asserts that this Court should vacate the
writ of capias ad satisfaciendum as a matter of public policy.””
Because analysis of Plaintiffs’ compliance with 10 Del. C. § 5051(a) is
necessary, it is helpful to review the writ of attachment fieri facias Plaintiffs issued
to levy Jennings’ property. Specifically, on July 12, 2018, Plaintiffs issued a Writ
of Fieri Facias to the sheriff to levy the property of defendant Jennings.’’ This writ
directed the sheriff to attach “all the goods, chattels, rights, money, effects, stocks,
bonds, vehicles, vessels, lands, tenements and hereditaments including business
records not exempt from execution belonging to . . . Harry O. Jennings. ...””
67 ld
68 Def. Jennings’ Mot. to Vacate Writ of Capias Ad Satisfaciendum, Wirth v. Top Bail Surety,
Inc. et al., C.A. No. N14C-02-137 MBO (Del. Super. Ct. June 18, 2021) (D.I. 136) (hereinafter
“Jennings’ Mot. to Vacate”).
6 Id. 4 12.
10 Id. 4 15-24.
1 DI. 79.
72 Td
19
On October 24, 2018, the New Castle County Sheriff filed a return in this
Court in relation to the July 12, 2018, Writ of Attachment Fieri F acias.” The return
states “Nulla Bona” — meaning the sheriff did not identify and recover property
subject to seizure at Jennings’ residence. But, the Sheriff's return identifies a defect
in the Writ of Fieri Facias: “Plaintiff failed to provide the Sheriff with required
documentation (Hold Harmless Letter or Specific Instruction to Levy and Impound
at Plaintiffs Expense) in order for the levy to be completed.””* Therefore, due to
Plaintiffs’ failure to provide the required documentation to the Sheriff, the levy was
ineffective, and the Sheriff could not determine if Jennings possessed real or
personal property within the county to satisfy the debt.” Accordingly, this Court
cannot conclude that a validly executed levy is evidenced by the return, and Plaintiffs
cannot rely upon the July 12, 2018 return to establish Jennings does not possess
either real or personal property within the county sufficient to satisfy the debt, as
required by 10 Del. C. § 5051 (a).
Alternatively, Plaintiffs could also satisfy § 5051(a) if, prior to the issuance
of the writ, Plaintiffs filed, with the Prothonotary, a written affidavit, stating the
Plaintiffs, (or someone writing on Plaintiffs’ behalf) “believe[d] the defendant has
not either real, or personal, estate sufficient to satisfy the debt, interest and costs
3 DJ. 87.
74 Id
75 Id
20
contained in [the] judgment.””° Plaintiffs did not do so. Because Plaintiffs failed to
satisfy the exacting requirements of 10 Del. C. § 5051(a), the writ is void.”’
Assuming, for argument’s sake, that Plaintiffs satisfied the requirements of
§ 5051 (a), the writ of capias ad satisfaciendum is nonetheless void. Section 5052(a)
requires Plaintiffs to provide an Affidavit of Fraud (“Affidavit”), which must set
forth specific facts which establish Jennings took specific action intending to defraud
Plaintiffs, by secreting, conveying, assigning, settling, or disposing of property, with
the intent to defraud Plaintiffs. Plaintiffs have neither identified any specific
property which has been removed or hidden by Jennings, nor stated any facts which
suggest Jennings’ intent to defraud Plaintiffs.
A liberal reading of the Affidavit suggests Plaintiffs may argue Jennings could
have acted fraudulently two ways —but neither circumstance establishes the secreting
or disposal of assets, or behavior which infers fraudulent conduct. First, the Affidavit
asserts Jennings intended to “abscond” by moving to Florida, and Plaintiffs know
this because Jennings, on one or more occasions, told Plaintiffs he intended to move
to Florida.”® This fact does not identify an asset Jennings attempted to hide from
attachment, nor does it establish intent to defraud. To the contrary, notifying a
creditor that a debtor may move to another state does not suggest the debtor is trying
76 DEL. CODE ANN. tit. 10, § 5051 (a).
77 Td.
8 Pls.’ Writ, Affidavit of Plaintiff (D.I. 139).
21
to avoid or elude a creditor, but exhibits a degree of openness and candor.” Second,
the Affidavit lists property Plaintiffs believe Jennings possesses which could be
presented to satisfy the judgment, including a firearm, three vehicles, corporate
stock, and three bank accounts. The Affidavit also summarily suggests Jennings
secreted away some of this property “with the intent to defraud his creditors.”®°
However, the Affidavit fails to identify the specific property Jennings attempted to
hide from Plaintiffs and does not “specify and set forth the supposed fraudulent
transactions” as required by 10 Del. C. § 5052(a). In sum, Plaintiffs failed to
describe how any specific property was secreted, or how that action intended to
defraud them.®! The Affidavit fails to provide any facts supporting a claim Jennings
intended to commit fraud. Plaintiffs’ Affidavit is therefore deficient, and the writ of
capias ad satisfaciendum is void.*
Finally, Jennings has requested an award of attorney’s fees for defending
against the writ of capias ad satisfaciendum.* Delaware Courts follow the
7 The Court is not aware of any statute or rule which prohibits a debtor from moving from one
state to another. Plaintiffs’ suggestion that this conduct is fraudulent or shady is not supported
by the record before it.
80 Pls.’ Writ, Affidavit of Plaintiff (D.I. 139).
8! DEL. CODE ANN. tit. 10, § 5052(a).
82 Because the writ of capias ad satisfaciendum is void, the Court need not address the Sheriff's
motion filed in opposition to the writ, namely that executing their obligations under the statute
pose significant logistical challenges in execution. Additionally, Plaintiff White suggested he filed
a similar writ in Floyd White v. Markee Ellerbe, C.A. No. 02J-01-829. He did not. On November
20, 2003, White filed a Motion for Issuance of Civil Capias, because Markee Ellerbe failed to
comply with discovery and related Superior Court Orders requiring his appearance and/or
compliance.
83 See Jennings’ Mot. to Vacate.
22
American rule, which provides that each party is generally responsible for their own
attorney’s fees.*4 Moreover, “[iJn an action at law, a court may not order the
payment of attorney’s fees as part of costs to be paid by the losing party unless the
payment of such fees is authorized by some provision of statute or contract.”®
Jennings’ counsel has not identified a statute or contract at issue which
expressly authorizes the award of attorney’s fees. But, 10 Del. C. § 5051(b) and §
5052(b) expressly provide for awarding “costs.” The writ of capias ad
satisfaciendum is void, and while Jennings is not entitled to attorney’s fees, he is
entitled to reimbursement of costs associated with defending against the execution
of the writ.°°
84 Transched Systems Limited v. Versyss Transit Solutions, LLC, 2012 WL 1415466, at *1 (Del.
Super. Ct. Maz. 29, 2012).
85 Casson v, Nationwide Ins. Co., 455 A.2d 361, 370 (Del. Super. Ct. Sept. 20, 1982), citing
Honaker v. Farmers Mutual Insurance Co., 313 A.2d 900, 904 (Del. Super. Ct. 1973); JJ.
White, Inc. v. Metropolitan Merchandise Mart, 107 A.2d 892, 894 (Del. Super. Ct. 1954); Great
American Indemnity Co. v. State, 88 A.2d 426, 428 (1952); Maurer v. International Re-
Insurance Corp., 95 A.2d 827 (Del. 1953).
86 See DEL. CODE ANN. tit. 10, §§ 5051(b), 5052(b).
23
CONCLUSION
Plaintiffs’ request to enforce a Writ of Attachment Fieri Facias as to garnishee
1* Choice is GRANTED in part and DENIED in part. The Writ of Capias Ad
Satisfaciendum is VOID. The New Castle County Sheriff's Response to Motion to
Vacate the Writ of Capias Ad Satisfaciendum is MOOT. Jennings’ request for
attorney’s fees is DENIED, but he remains statutorily entitled to repayment of costs
incurred while defending against the Writ of Capias Ad Satisfaciendum. Counsel
for Jennings shall submit an affidavit providing reimbursable costs to the Court
within two weeks of this ORDER.
IT IS SO ORDERED.
/s/ Martin B. O’ Connor
Commissioner Martin B. O’Connor
Date: March 25, 2022