
    CIRCUIT COURT OF FAIRFAX COUNTY
    Tipco Homes, Inc. v. Sutton Woods, II
    April 17, 1987
    Case No. (Law) 77908
   By JUDGE F. BRUCE BACH

This matter is before the Court on a Motion to Dismiss the garnishment summons filed by the defendant/garnishee, The County of Fairfax — J. Hamilton Lambert, County Executive. The Motion to Dismiss is granted without prejudice.

The funds of the principal debtor held by the garnishee are held in a conservation escrow required to secure the proper performance of work by the debtor. Since the work has not been completed, the debtor is not presently entitled to the funds. As a result, the garnishor has no right to the funds at this time. "In order to hold the garnishee liable, it must be shown that the legal obligation for the debt is absolute, and not contingent or dependent upon unperformed condition. ..." Fentress v. Rutledge, 140 Va. 685, 688 (1924).

In addition, funds held in a conservation escrow are held for the benefit of the public. Such funds are not subject to diversion, for the reasons cited by Judge Hancock in his letter opinion in Broyhill v. The Boyer Companies, Ltd., (At Law No. 64172), dated December 20, 1984.

The Motion to Dismiss is granted without prejudice since the debtor eventually may perform the required acts and thus become absolutely entitled to the funds in the conservation escrow. At such time, subject to other defenses that the garnishee may raise, the Plaintiff may be entitled to garnish these funds.  