County Civil Court:  CONTRACTS – garnishment of wages – claim of exemption – trial court did not err in denying Appellant’s claim of exemption – who “owns” account funds is a question of fact for the trial court to resolve – no indisputable evidence presented by the Appellant that account funds belong to third party – no transcript of the hearing supports affirmance of the trial court’s ruling - Order affirmed.  Labua v. American Express Centurian Bank, Appeal No. 06-0085AP-88A (Fla. 6th Cir. App. Ct. June 11, 2007). 










vs.                                                                                        Appeal No. 06-0085AP-88A




and SUNTRUST BANK, as Garnishee,



Appeal from Pinellas County Court

Small Claims Division


Thomas C. Little, Esquire

Attorney for Appellant


Dorothy V. Maier, Esquire

Attorney for Appellee




            THIS CAUSE came before the Court on appeal, filed by Michael Labua (Labua), from the Order Denying Reconsideration of Garnishment, entered October 31, 2006.  Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the trial court’s ruling as set forth below.

The record shows that Labua was the defendant in an action filed by American Express Centurian Bank (American Express), to recover damages as a result of an unpaid credit card debt.  Labua did not respond to the complaint and a Default Final Judgment was entered against him.  American Express then filed Plaintiff’s Motion for Writ of Garnishment which was served upon SunTrust Bank, where Labua and his wife, Doreen Labua, hold two accounts.[1]  SunTrust answered the writ and retained $ 35,408.78 from the accounts. 

Labua filed an answer to the writ of garnishment asserting that the funds were not subject to levy because the funds were being held as a “special trust” pursuant to a second mortgage entered into between the Labuas and Peter Makris, the mortgage lender.  The trial court held a hearing and entered its Order Denying Exemption Claim finding no evidence to support Labua’s claim of a special trust.  The trial court noted that Labua failed to attend the hearing, appearing only through his attorney.  Labua filed a motion for rehearing.  Although a Final Judgment in Garnishment had been entered, the trial court permitted Labua to present his motion.  Afterwards, the trial court entered its Order Denying Motion for Reconsideration of Garnishment in which the trial court found that Labua failed to prove that the funds held by SunTrust were subject to a special trust.

Before this Court, Labua argues that the trial court erred in denying his claim of exemption of garnishment.  This Court must determine whether the trial court conclusively determined the rights of Labua, and other interested third parties, and whether such individuals were provided with a meaningful opportunity to be heard.  See Antuna v. Dawson, 459 So.2d 1114, 1117 (Fla. 4th DCA 1984)(explaining that the interests in the funds should be conclusively determined before a final judgment of garnishment is entered);  see also Edelberg v. Monogram Building & Design, 630 So.2d 1227, 1229 (Fla. 4th DCA 1994)(finding that before a property owner can be deprived of its possession there must be a meaningful opportunity to be heard).   

            Labua does not argue that the trial court denied him of an opportunity to be heard.  Indeed, Labua did not even respond to the complaint, resulting in the Default Final Judgment, and also failed to attend the hearing on his Answer to Notice of Writ of Garnishment.  Further, there is nothing in the record to show that the third party lender, Peter Makris, to whom the garnished funds allegedly belong, attempted to intervene in the proceedings below.  The trial court, in its discretion, did permit Labua to present evidence and testimony in his motion for rehearing. 

As explained in Ginsberg v. Goldstein, 404 So.2d 1098, 1100 (Fla. 3d DCA 1981), who actually “owns” account funds is a question of fact for the trial court to resolve.  In Ginsberg, the Third District Court of Appeal reversed the judgment of garnishment as it found that the record on appeal “indisputably” showed that the money in the former husband’s bank account was “owned” by his current wife, thus not subject to garnishment by the former wife.  See id. 

That is not the situation in this case.  There is no indisputable evidence showing that the funds belonged to a third party pursuant to a special trust.  Therefore, the Court finds that the Final Judgment in Garnishment must be affirmed particularly in light of the fact that there is not transcript of the proceedings below.  See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979)(finding that without a transcript or adequate record appellate court cannot properly resolve underlying factual issues and appellant is unable to demonstrate reversible error); see also Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998)(explaining that the appellate court cannot substitute its opinion on the evidence but rather must indulge every fact and inference in support of the trial court’s judgment, which is the equivalent of a jury verdict).


Therefore, it is,

            ORDERED AND ADJUDGED that the Order Denying Reconsideration of Garnishment is affirmed.    

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of June 2007.




                                                         R. TIMOTHY PETERS

                                                         Circuit Judge, Appellate Division







______________________________                        ______________________________

GEORGE M. JIROTKA                                          CYNTHIA J. NEWTON

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division


Copies furnished to:


Honorable Walt Fullerton

County Court Judge


Thomas C. Little, Esquire

2123 N.E. Coachman Road, Suite A

Clearwater, FL  33765


Dorothy V. Maier, Esquire

Post Office Box 934788

Margate, FL  33093-4788


[1] As set forth in the Answer of the Garnishee, SunTrust Bank, the accounts were designated as being held by “Michael J. Labua or Doreen L. Labua.”