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 (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE
DIVISION
MICHAEL LABUA,
Appellant,
vs. Appeal No. 06-0085AP-88A
UCN522006P000085XXXXCV
AMERICAN EXPRESS
CENTURIAN BANK
and SUNTRUST
BANK, as Garnishee,
Appellees.
______________________________________/
Appeal from
Small Claims Division
Thomas C. Little, Esquire
Attorney for Appellant
Dorothy V. Maier, Esquire
Attorney for Appellee
ORDER AND OPINION
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
________________________________
R. TIMOTHY PETERS
Circuit Judge, Appellate Division
______________________________ ______________________________
GEORGE M. JIROTKA CYNTHIA
J.
Circuit Judge, Appellate Division Circuit Judge, Appellate Division
Copies furnished to:
Honorable Walt Fullerton
County Court Judge
Thomas C. Little, Esquire
Dorothy V. Maier, Esquire
Post Office Box 934788
[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.”