PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.1
MARCUS, SANTORO & KOZAK, P.C., ET AL.
OPINION BY
v. Record No. 062357 JUSTICE G. STEVEN AGEE
November 2, 2007
HUNG-LIN WU, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Joseph Canada, Jr., Judge
Marcus, Santoro & Kozak, P.C. (MSK) and Kaufman & Canoles
(K&C) (collectively “the Firms”) appeal from the judgment of the
circuit court of the City of Virginia Beach which found both
parties liable upon a garnishment summons for the payment of
funds held in their respective trust accounts from a judgment
debtor who was their client. The circuit court determined that
the lien of a writ of fieri facias under Code § 8.01-501
required the Firms to cease disbursing funds from their trust
accounts in satisfaction of accrued legal fees and related costs
and to pay those funds to a judgment creditor effective with the
issuance of the writ of fieri facias. For the reasons set forth
below, we will affirm the judgment of the circuit court.
BACKGROUND AND PROCEEDINGS BELOW
On May 12, 2005, Hung-Lin Wu and the Wu Trust (collectively
“Wu”) obtained two judgments in a Florida state court, one
1
Justice Lacy participated in the hearing and decision of
this case prior to the effective date of her retirement on
August 16, 2007.
against Stanley F.C. Tseng and another against several business
entities affiliated with Tseng (collectively “Tseng”).2 Wu
domesticated the judgments in the Circuit Court of the City of
Virginia Beach on August 16, 2005.
Tseng retained MSK to represent him personally, and K&C to
represent his affiliated business entities, with regard to
various proceedings initiated by Wu in an attempt to collect on
the judgments in both Virginia and Florida. Tseng entered into
a written representation agreement with each law firm which
provided that he would deposit a sum certain into a trust
account maintained by the law firm as a “retainer.” The written
agreement with K&C provided “This retainer will be applied
toward services heretofore and hereafter rendered and out-of-
pocket costs,” but gave no further explanation as to the basis
for withdrawals from the trust account. The written agreement
with MSK did not specifically address the disbursement of funds.
As agreed, Tseng deposited $155,000 into K&C’s trust account and
$125,000 into MSK’s trust account. K&C made the first
disbursement from its trust account for payment of its fees and
costs on August 26, 2005. MSK made the first disbursement from
its trust account for fees and costs on August 19, 2005.
2
The judgment against Tseng was for $8,459,789 and the
judgment against the business entities was for $11,279,836.
2
In an attempt to collect on the judgments, Wu requested
that the Clerk of the Circuit Court of Virginia Beach deliver a
writ of fieri facias against Tseng to the Sheriff of Virginia
Beach pursuant to Code § 8.01-466.3 The writ was delivered to
the sheriff on October 7, 2005. In its June 14, 2006 letter
opinion, incorporated into the final order, the circuit court
found that K&C and MSK were served with a notice of the lien of
fieri facias on October 7, 2005. The Firms made no assignment
of error to that finding. Tseng was not served with the notice
of lien.
On October 14, 2005, the circuit court issued a garnishment
summons against each law firm. Each garnishment summons
contained a new writ of fieri facias and provided another notice
of the lien of fieri facias. Tseng was served with the MSK
garnishment summons on October 21, 2005 and MSK was served with
that garnishment summons on October 24, 2005. K&C and Tseng
were served with the K&C garnishment summons on November 14,
2005. The Firms had continued to disburse funds from their
respective trust accounts during the period between the date of
the issuance of the writ of fieri facias and service of notice
on the Firms, October 7, 2005, and the dates of service of the
respective garnishment summonses.
3
A writ of fieri facias commands “the officer . . . to make
the money therein mentioned out of the goods and chattels of the
3
On November 18, 2005, the return date on the garnishment
summonses, the Firms filed separate motions to dismiss the
garnishments. In addition, each law firm delivered to the
circuit court a check payable to Wu in an amount equal to the
balance of its trust account as of the date that law firm and
Tseng had been served the applicable garnishment summons. K&C
paid $48,600.13, the remaining balance in its account as of
November 14, 2005 when K&C and Tseng were served the garnishment
summons. MSK paid $19,574.53, the remaining balance in its
account as of October 24, 2005, the date by which both it and
Tseng had been served with the garnishment summons.
In the motions for summary judgment the Firms contended
that they had remitted all the funds to which Tseng was
entitled. At a hearing and in memoranda filed in the circuit
court, Wu contended that the law firms should have remitted
amounts equal to the account balances on October 7, 2005, the
date the writ of fieri facias was delivered to the sheriff, and
therefore that the sums remitted were deficient. Citing Code
§ 8.01-501 for the proposition that the issuance of the writ of
fieri facias on October 7 perfected a lien on the funds in the
trust accounts, Wu contended that the Firms were obliged to
cease disbursing funds from their respective trust accounts on
person against whom the judgment is.” Code § 8.01-474.
4
that date and were liable to him for any funds disbursed after
that date.
The Firms did not contest in the circuit court that Wu
could proceed by garnishment, but argued the garnishment process
he used was ineffective as a matter of law to reach any funds
prior to the actual date of service of the garnishment summons.
The Firms asserted that they were “person[s] making a payment to
the judgment debtor” under Code § 8.01-502, and as such, the
liens created under Code § 8.01-501 were ineffective against
them without the statutory conditions precedent being met. That
statutory condition precedent under Code § 8.01-502 included
service of a notice of lien on both the Firms as garnishees and
the judgment debtor, Tseng. For that reason, the Firms
contended they were entitled to disburse funds from the trust
accounts until the date on which both they and Tseng were served
with the garnishment summonses.
In its letter opinion, the circuit court ruled that the
Firms were liable to Wu for the balances remaining in the
respective trust accounts as of October 7, 2005, because:
“According to [Code] § 8.01-501, the lien of fieri facias was
effective on the date it was delivered to the sheriff, which the
parties agree was October 7, 2005, unless the § 8.01-502
provision applies.” The circuit court rejected the Firms’
argument that they were “person[s] making a payment to the
5
judgment debtor” under Code § 8.01-502 when they disbursed funds
from the trust accounts. The circuit court opined that funds
held in the trust accounts represented payment in advance for
legal fees not yet incurred and that the balances in the trust
accounts at any particular time remained Tseng’s property. The
circuit court found that although the Firms would be obligated
to refund to Tseng any portion of an advanced legal fee that had
not been earned when the representation terminated, a “potential
future obligation” to pay Tseng did not qualify the law firms as
“person[s] making a payment to the judgment debtor.”
Accordingly, the circuit court ruled that the lien under the
writ of fieri facias on the funds in the trust accounts was
effective on October 7 despite the lack of service of a notice
of lien on Tseng until a later date.
Pursuant to its letter opinion, the circuit court entered
an order denying the Firms’ motions for summary judgment. The
circuit court ordered that K&C pay to Wu $67,903.24, which
represented the amount K&C disbursed from its trust account
between October 7, 2005 and November 14, 2005, the date by which
service of the K&C garnishment summons was made on both K&C and
Tseng. The circuit court also ordered that MSK pay to Wu
$27,661.76, which represented the amount MSK disbursed from its
trust account between October 7, 2005, and October 24, 2005, the
6
date by which the MSK garnishment summons had been served on MSK
and Tseng. We awarded the Firms this appeal.
DISCUSSION
The issues raised in this appeal solely involve issues of
law, which we review de novo. Janvier v. Arminio, 272 Va. 353,
363, 634 S.E.2d 754, 759 (2006); Sheets v. Castle, 263 Va. 407,
410, 559 S.E.2d 616, 618 (2002).
The Firms make six assignments of error to the judgment of
the circuit court which can be condensed to four arguments: (1)
The circuit court erred in ruling that the funds in the Firms’
trust accounts were property owned by Tseng instead of a
contract obligation by the Firms to pay Tseng any unearned funds
upon the termination of representation; (2) The circuit court
erred in holding the lien of the writ of fieri facias “directly
reached the trust accounts” instead of the Firms’ contractual
obligation to Tseng; (3) The circuit court erred in its
application of Code § 8.01-502 by finding that the Firms were
not “persons making a payment to the judgment debtor”, and (4)
the circuit court “erred in holding that the execution lien” of
the writ of fieri facias under Code § 8.01-501 “was perfected
and fully effective” as to the Firms upon delivery of the writ
to the sheriff without “service of the notice of that lien upon
anyone.” We address each argument in turn.
A. Tseng’s Interest in the Trust Accounts
7
The Firms argue that Tseng’s interest in the trust
accounts, into which he deposited his funds under the retainer
agreements, was only a bare contract right. They contend Tseng
had no property right or ownership interest in the trust account
funds.4 Instead, the Firms argue that they and “Tseng were in a
debtor-creditor relationship” essentially in the same capacity
as a commercial bank and a depositor. The Firms posit they only
had a “legally enforceable contractual obligation . . . to repay
Tseng the unearned and unused retainer deposits.” Thus, the
Firms contend the circuit court’s finding that the funds in the
trust account “remain the property of the client” is in error.
Our jurisprudence clearly supports the conclusion reached
by the circuit court. An attorney who receives funds from a
client for the future payment of legal fees for services not yet
rendered holds those funds in trust. The funds are the corpus
of a trust of which the attorney is the trustee and the client
the beneficiary. In re Equip. Servs., 290 F.3d 739, 746 (4th
Cir. 2002) (citing Indian Motocycle Assocs. v. Massachusetts
Housing Fin. Agency, 66 F.3d 1246, 1254-55 (1st Cir. 1995))
(“the relationship is a trust arrangement in which the attorney
holds the retainer for the client” and “the retainer so held,
4
The Firms did not contend the trust status (and Tseng’s
equitable ownership interest) in the funds in the trust accounts
ended before the lien of fieri facias attached on October 7,
8
less any fees charged against it, constitutes the property of
the client”). Although not a case involving an attorney’s trust
account, we explained such a general fiduciary relationship, and
distinguished it from a debtor/creditor relationship, in
Broaddus v. Gresham, 181 Va. 725, 26 S.E.2d 33 (1943).
The question frequently arises as to whether the
relation created is a trust or a debt. With respect
to this distinction, in Scott on Trusts, Vol. 1,
section 12.1, p. 86, the author says: “A trust
involves a duty to deal as fiduciary with some
specific property for the benefit of another. A debt
involves a merely personal obligation to make payment
of a sum of money to another. A creditor as such has
merely a personal claim against the debtor. He can
enforce his claim by judicial proceedings to reach the
debtor’s property and subject it to the satisfaction
of his claim, but until he does so he has no legal or
equitable interest in the property of his debtor. ***
On the other hand, the beneficiary of a trust has an
equitable interest in the trust property. The
beneficiary of a trust has something more than a mere
chose in action, something more than the merely
personal claim which a creditor has against the
debtor. He is equitable owner of the trust property.
If the trustee transfers the trust property to a
person who is not a bona fide purchaser, or if the
trustee becomes insolvent, the beneficiary is still
entitled to the property . . . .”
Id. at 731-32, 26 S.E.2d at 35-36.
The Firms were in a fiduciary relationship to Tseng,
holding his property (the funds he tendered to the Firms) as the
corpus of a trust of which Tseng was the beneficiary. Nothing
in either representation agreement evidences any other type of
2005, by virtue of any contractual agreement between the
parties.
9
relationship. The Firms were thus under a fiduciary duty to,
among other things, return the funds in the fiduciary trust
account to Tseng upon his request. This obligation, fiduciary
in nature, did not convert the parties’ relationship to that of
debtor and creditor as to the trust funds although Tseng could
have sought many of the same remedies as a creditor had the
Firms failed to discharge their fiduciary duty. We reiterated
this point in Broaddus:
The fact that the trustee may be indebted to the
beneficiary in a fixed and definite amount which is
due and payable immediately and which may be recovered
by the beneficiary in an action at law, is not, as
contended by the appellant, determinative of the
existing relation. If the trustee is under a duty to
pay money immediately and unconditionally to the
beneficiary, the beneficiary can maintain an action at
law against the trustee to enforce payment. This does
not mean, however, that a trustee who is under an
immediate and unconditional duty to pay to the
beneficiary money held in trust has ceased to be a
trustee and has become a debtor.
Id. at 732-33, 26 S.E.2d at 36 (quoting Restatement of
Torts §§ 198-199) (internal quotation marks omitted).
We specifically applied these principles in the context of
trust accounts held by an attorney in Virginia State Bar v.
Goggin, 260 Va. 31, 530 S.E.2d 415 (2000), and plainly held the
client had an ownership interest as a trust beneficiary, not a
mere creditor:
Clients’ funds deposited in an attorney’s trust
account are funds held in trust. As such, the claim
of such clients for return of funds is more than
10
merely a personal claim against the attorney for the
payment of the sum of money on deposit. The clients
retain an equitable or beneficial ownership interest
in the funds. The deposit of one client’s funds in an
account with funds of other clients does not destroy
the beneficial interest of the clients in the funds so
deposited. Thus, the clients are entitled to those
funds to the extent their equitable ownership
interests can be traced.
Goggin, 260 Va. at 33, 530 S.E.2d at 416-17 (citing
Broaddus, 181 Va. at 731-32, 26 S.E.2d at 35-36); accord
Iowa Supreme Court Bd. Of Professional Ethics & Conduct v.
Frerichs, 671 N.W.2d 470, 476 (Iowa 2003) (Advance payment
for future services “represent[s] money that still belongs
to the client after it is paid to an attorney and must be
deposited in a client trust account.”); In re Lochow, 469
N.W.2d 91, 98 (Minn. 1991) (“[A]dvance payments for future
services are client funds until earned. . . . Furthermore,
attorney fees for payment of services to be performed in
the future must be placed in a trust account and removed
only by giving the client notice in writing of the time,
amount, and purpose of the withdrawal, together with a
complete accounting thereof.”).
The Firms’ analogy to a lawyer’s trust account and the
relationship between a bank and its depositor is untenable.
While a depositor is only a creditor of the bank as to his
account in the depository bank, Bennet v. First & Merchants
Nat’l Bank, 233 Va. 355, 360, 355 S.E.2d 888, 890-91 (1987)
11
(citing Bernardini v. Central Nat’l Bank, 223 Va. 519, 521, 290
S.E.2d 863, 864 (1982)), that contractual indebtedness is
qualitatively and legally distinct from that of the client whose
own funds are being held by his attorney. A depositor in a bank
retains no ownership interest in the funds deposited, but
becomes a general creditor of the bank. Should the bank become
insolvent, the depositor is a mere creditor with all others.
See First Nat’l Bank v. Commercial Bank & Trust Co., 163 Va.
162, 169, 175 S.E. 775, 777 (1934) (a depositor “has no claim
upon the assets of the bank superior to that of the bank’s
general creditors”).
Should a lawyer’s client, having tendered funds into the
lawyer’s trust account, file a petition in bankruptcy, the funds
in the trust account at the time of filing are assets of the
client’s bankruptcy estate because of the client’s ownership
interest. E.g., In re U.S.A. Diversified Prods., Inc., 196 B.R.
801, 807 (N.D. Ind. 1996) (“[T]he funds in [firm’s] trust
account became the property of the bankruptcy estate upon the
filing of the petition.”); see also 3 Collier on Bankruptcy ¶
329.04[1][e] & n.22 (Lawrence P. King et al., eds. 15th ed.
2007) (supplying cases). Conversely, if the attorney holding a
client’s funds files a petition in bankruptcy, the client’s
funds in the trust account are not part of the attorney’s estate
in bankruptcy. Those funds remain the separate property of the
12
client because it is the client who has equitable ownership, not
the attorney.
We hold that Tseng had an equitable ownership of the funds
held by the Firms in trust and was not simply a contractual
creditor of the Firms as they contend. The circuit court thus
did not err in its holding that the trust account funds were
Tseng’s property.
B. Scope of the Garnishment Summons
Garnishment is the process by which a judgment creditor may
enforce the lien of his writ of fieri facias against any debt or
property due his judgment debtor that is held by a third party,
the garnishee. Lynch v. Johnson, 196 Va. 516, 520, 84 S.E.2d
419, 421 (1954); Code § 8.01-511. The creditor can assert no
greater rights against the garnishee than the judgment debtor,
himself, possesses. Network Solutions, Inc. v. Umbro
International, Inc., 259 Va. 759, 768, 529 S.E.2d 80, 85 (2000).
“A garnishment summons does not create a lien itself, but,
instead, is ‘a means of enforcing the lien of an execution
placed in the hands of an officer to be levied.’ ” Id. at 768-
69, 529 S.E.2d at 85 (quoting Knight v. The Peoples Nat’l Bank
of Lynchburg, 182 Va. 380, 392, 29 S.E.2d 364, 370 (1944)).
Under Virginia law, a garnishment proceeding is a
separate proceeding in which the judgment creditor
enforces the "lien of his execution" against property
or contractual rights of the judgment debtor which are
in the hands of a third person, the garnishee. The
13
summons issued in a garnishment proceeding "warns" the
garnishee not to pay the judgment debtor’s money to
the judgment debtor, with the sanction that if the
garnishee were to do so, it would become personally
liable for the amount paid.
United States ex rel. Global Bldg. Supply, Inc. v. Harkins
Builders, Inc., 45 F.3d 830, 833 (4th Cir. 1995) (quoting Lynch,
196 Va. at 520, 84 S.E.2d at 421) (internal citations omitted).
The Firms contend the circuit court erred by permitting
Wu’s garnishment to, in effect, reach the respective trust
accounts for any amounts disbursed after the writ of fieri
facias was issued to the sheriff and served upon them, but
before there was service upon Tseng. In part, the Firms argue
their position is correct because a garnishment could only reach
their contractual indebtedness to Tseng and they held no
property Tseng owned. We have just rejected that argument
because Tseng had equitable ownership of the funds deposited in
the trust accounts and possessed more than a mere contract
right.
The Firms also appear to argue that a garnishment can only
reach a debt the garnishee owes a judgment debtor, but no other
property interest of that judgment debtor that the garnishee may
hold. The Firms misapprehend the law of garnishment.
Our precedent reflects that a garnishment reaches any
intangible property interest of a debtor and that property
interest is not constricted to a narrow category of a debtor-
14
creditor obligation. We succinctly explained the scope of
garnishment in Lynch.
If it appear upon proof or upon confession of the
garnishee that he owes the judgment debtor any debt or
property, the court “may give judgment against him
. . . .” The court cannot, [however], enter any order
or judgment against the garnishee unless he is found
either to be indebted to the judgment debtor, or to
have possession of property of such debtor for which
debt or property the judgment debtor himself could
maintain an action at law.
196 Va. at 520, 84 S.E.2d at 422 (citing Levine’s Loan Office,
Inc. v. Starke, 140 Va. 712, 125 S.E. 683 (1924); Freitas v.
Griffith, 112 Va. 343, 71 S.E. 531 (1911)) (emphasis added).
Thus, it is the debtor’s intangible property interest that
the garnishee may hold, not just an indebtedness from the
garnishee, that is properly subject to garnishment. Network
Solutions, Inc., 259 Va. at 768, 529 S.E.2d at 85. The Firms,
as garnishees, held the intangible equitable property interest
of Tseng in their trust accounts and were under a fiduciary duty
not only to hold that interest but return the property to Tseng
when the trust obligation ends. As such, Tseng’s property
interest in the trust accounts could be attached in garnishment
by Wu as “the judgment creditor [who] enforces the ‘lien of his
execution’ against property . . . of the judgment debtor [Tseng]
in the hands of a third person, the garnishee,” the Firms.
15
Harkins Builders, 45 F.3d at 833 (quoting Lynch, 196 Va. at 520,
84 S.E.2d at 421).5
C. Person Making a Payment to the Judgment Debtor
The Firms contend that even if their prior arguments are
incorrect, and Wu’s garnishment summons can reach the trust
account interests owned by Tseng, the circuit court nonetheless
erred because the requirements of Code § 8.01-502 were not met.
The Firms argue this is so because they were persons “making a
payment to the judgment debtor” within the meaning of Code
§ 8.01-502 and thus entitled to require strict compliance with
the statute’s requirements, including service of the notice of
lien upon Tseng, before the lien of the writ of fieri facias was
effective.
We have not previously considered who is “a person making a
payment to the judgment debtor” under Code § 8.01-502. However,
if a party falls within that category, the Firms are correct
that no liability under the writ of fieri facias attaches as to
them until the notice requirements of the statute have been met.
“Garnishment, like other lien enforcement remedies authorizing
5
The Firms cite Code § 8.01-512.3 on brief as being
inconsistent with the circuit court’s judgment by virtue of
language in the statutory form that the garnishee withhold funds
from “the date of service of this summons on you.” This
argument was not made in the circuit court and will not be
considered under Rule 5:25. Further, other than citing the
statute, the Firms do not make any further analysis in their
16
seizure of property, is a creature of statute unknown to the
common law, and hence the provisions of the statute must be
strictly satisfied.” Network Solutions, Inc., 259 Va. at 768,
529 S.E.2d at 85 (citing Long v. Ryan, 71 Va. (30 Gratt.) 718,
724 (1878); Mantz v. Hendley, 12 Va. (2 Hen. & M.) 308, 315
(1808)).
If Tseng were a plumber and provided plumbing services to
the Firms, then their payment to Tseng for those services would
clearly be a Code § 8.01-502 “payment to the judgment debtor.”
In that case, the lien of fieri facias would not cause a
liability on the part of the Firms for making the plumbing
payment to Tseng until he had been properly served with notice
of the lien. However, the Firms’ claim of a statutory payment
in this case is far more attenuated, if not illusory, than the
foregoing example.
Without citation to any authority, the Firms contend that
they made a “constructive payment” to Tseng each time the Firms
withdrew money from the trust accounts to pay their legal fees
and costs.6 Based on their view that any obligation on their
part to Tseng was purely a contractual indebtedness to him, the
Firms argue that each time they paid themselves from the trust
brief and as such, the argument would also be waived under Rule
5:17(c)(4).
6
The record is silent as to whether Tseng consented to or
knew about any particular withdrawals.
17
accounts they were “simultaneously discharging their own
obligation to pay Tseng the identical sum from the retainer
deposits.”
This legal fiction was the basis for the Code § 8.01-502
defense the Firms argued to the circuit court.
In effect, what has happened, Your Honor, is the law
firms did the work, the obligation to pay us was
incurred. Rather than give the money back to Mr.
Tseng so that he could then pay us, what happened was
in the nature of a setoff, and that is a payment.
[O]ur obligation to Mr. Tseng for what he deposited
with us was reduced pro tanto by the amount that he
was obligated to pay us for our services, or reimburse
us for the expenses we had incurred in the course of
that representation . . . . And by discharging the
obligation that we had to Mr. Tseng, we made a payment
to him.
We disagree with the Firms.
There is no hint in Code § 8.01-502 that any artifice or
legal fiction is contemplated by the plain language of the
statute. The words of the statute mean what they say and we may
not read into a statute a meaning contrary to its clear
language. Blowe v. Peyton, 208 Va. 68, 74, 155 S.E.2d 351, 356
(1967) (when construing “simple, clear and unambiguous language
. . . we read it to mean what it says.”); Chase v.
DaimlerChrysler Corp., 266 Va. 544, 547-48, 587 S.E.2d 521, 522
(2003) (“[T]he intention of the legislature . . . must be
gathered from the words used, unless a literal construction
would involve a manifest absurdity.”). The service requirements
18
of Code § 8.01-502 apply only where the garnishee actually makes
a payment to the judgment debtor.
Simply put, the Firms never made a payment to Tseng; they
paid themselves. When the Firms withdrew Tseng’s property from
the trust accounts, they made no payment to Tseng, Wu’s judgment
debtor. Instead, the Firms put Tseng’s money into their pockets
or the pockets of their nominees, but never Tseng.
Consequently, the Firms are not “person[s] making a payment to
the judgment debtor” within the intendment of Code § 8.01-502
and the notice requirements of that statute cannot be claimed by
them. Therefore, the failure to make service upon Tseng under
that statute has no effect on the Firms’ liability to Wu under
the garnishments.
D. Effective date of the Fieri Facias Lien
The Firms’ final assignment of error is that the circuit
court erred in holding the Code § 8.01-501 lien could attach to
the funds in the trust accounts “without regard to service of
the notice of lien upon anyone.” The circuit court actually
ruled in its opinion letter that: “According to Code § 8.01-
501, the lien of fieri facias was effective on the date it was
delivered to the sheriff, which the parties agree was October 7,
2005.” The court then cited the statute, which provides:
“Every writ of fieri facias shall . . . be a lien from the time
it is delivered to a sheriff . . . on all the personal estate of
19
or to which the judgment debtor is . . . possessed or entitled.”
Code § 8.01-501 (emphasis added). The Firms’ only argument to
the circuit court was that the lien was not effective as to them
because of the failure to serve the notice of lien under Code
§ 8.01-502. Otherwise, the Firms conceded the effective
attachment of the fieri facias lien before the circuit court.
[A]lthough the lien became effective – was created I
guess is a better way to put it, statewide territorial
lien on intangible property was created when that writ
of execution was placed in the hands of the Virginia
Beach sheriff on October 7th, it was not binding upon,
it was not effective against the two law firms until
all the procedures set forth in [Code §] 8.01-502 were
met.
Having failed in their argument under Code § 8.01-502, as
just addressed above, the Firms made no other argument in the
circuit court that related to any notice defect in the
garnishment.7 Moreover, the Firms’ argument that there was no
service of notice of the fieri facias lien is contrary to the
law of this case. As noted previously, the circuit court found
as a fact that the Firms had been served on October 7, 2005, the
same date the fieri facias writ was delivered to the sheriff and
the Firms assigned no error to that finding. Whether failure to
have made service on the Firms upon the day of the delivery of
7
No issue was raised below regarding any other defect in
the notice of the lien of fieri facias, such as a claim of lack
of due process, or that the Firms had a lien interest of their
own under Code § 54.1-3932 or otherwise.
20
the writ to the sheriff would have affected the lien under Code
§ 8.01-501 is not an issue before the court in this case.
Accordingly, as the provisions of Code § 8.01-502 did not
apply to the Firms, the circuit court did not err in finding the
lien of the writ of fieri facias became effective against the
Firms as of October 7, 2005.
CONCLUSION
For the reasons set forth above, we will affirm the
judgment of the circuit court.
Affirmed.
21