DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RICHARD CLEVELAND,
Appellant,
v.
WESTPORT RECOVERY CORPORATION,
Appellee.
No. 4D20-2445
[December 8, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; James Nutt, Judge; L.T. Case No. 502016CA009470.
Michael P. Reitzell of Michael P. Reitzell, P.A., West Palm Beach, for
appellant.
Debra L. Greenberg of Friedman & Greenberg, P.A., Plantation, for
appellee.
KLINGENSMITH, J.
This case centers around an allegation of fraudulent conveyance
involving a mother’s sale of real property to her son, Appellant Richard
Cleveland. The trial court granted summary judgment in favor of Appellee
Westport Recovery Corporation (“Westport”), determining that the
property’s sale and transfer violated Florida’s Uniform Fraudulent Transfer
Act (“FUFTA”). For the reasons set forth below, we reverse the trial court’s
final summary judgment.
In January 2011, Deborah Strong purchased a non-homestead
property (the “1906 Property”) in part with a mortgage and with
$12,400.00 provided by Appellant as a gift in equity. Westport later sued
Strong to recover on a previous judgment as well as almost twenty years
of accrued interest and obtained a new judgment. While Westport’s
lawsuit against Strong was still pending, Strong listed the 1906 Property
for sale and purchased a less expensive and homestead-protected property
(the “200 Main Property”) by getting a balloon mortgage from Appellant
with a promissory note stating that it would be due in full upon the sale
of the 1906 Property. While the suit against Strong was pending, Appellant
satisfied the bank-held mortgage on the 1906 Property and paid for home
improvements totaling $9,800.00 to prepare the house for sale.
Westport moved for summary judgment against Strong, who did not
oppose the motion. Nine days later, Strong sold the 1906 Property to
Appellant for $100.00. Appellant then sold the 1906 Property to a third
party, who were good faith transferees, for $95,000.00. Westport then
obtained a new judgment against Strong after summary judgment was
granted. However, Westport was unable to recover on the judgment
against Strong because she and Appellant conducted multiple real estate
transactions to transfer ownership of the 1906 Property.
Because the 1906 Property was unavailable to satisfy the judgment,
Westport sued both Strong and Appellant under FUFTA, alleging that the
transfer of the 1906 Property was made with the intent to delay, hinder,
or defraud Strong’s creditors and was fraudulent under section 726.105,
Florida Statutes (2016). As part of the suit, Westport also sought monetary
damages against Appellant under section 726.109(2), Florida Statutes
(2016). In their answer, Appellant and Strong alleged that there was
adequate consideration for the purchase of the 1906 Property and neither
intended to improperly avoid Strong’s creditors. Westport later moved for
summary judgment, arguing Appellant’s consideration to Strong for the
purchase of the 1906 Property was inadequate because neither Appellant’s
gift in equity 1 nor the loan for the 200 Main Property constituted
consideration for the sale.
Following a hearing, the trial court granted Westport’s summary
judgment motion finding Westport established all the elements of
fraudulent conveyance under section 726.105(1)(a). The trial court
determined that the transfer of the 1906 Property from Strong to Appellant
was a fraud upon Strong’s creditors and voidable under section
726.108(1)(a), Florida Statutes (2016). The trial court also found Westport
was entitled to money damages from Appellant under section 726.109(2).
Summary judgment is appropriate “if the pleadings and summary
judgment evidence on file show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law.” Fla. R. Civ. P. 1.510(c) (pre-May 2021 amendment). The
Florida Supreme Court amended Florida Rule of Civil Procedure 1.510(c)
1 Appellant concedes on appeal that the gift in equity was not consideration
because it was not an antecedent debt and does not fit into other definitions of
value. See In re Goldberg,
229 B.R. 877, 884 (Bankr. S.D. Fla. 1998).
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to adopt the federal summary judgment standard, effective May 1, 2021.
See In re Amends. to Fla. Rule of Civ. Proc. 1.510,
309 So. 3d 192, 194 (Fla.
2020). This amendment does not apply here, because the trial court
entered final summary judgment in August 2020, before the amendment’s
effective date. See Wilsonart, LLC v. Lopez,
308 So. 3d 961, 964 (Fla. 2020)
(stating that the amendment to rule 1.510 is prospective).
Because the amendment is prospective, we analyze this appeal under
the old standard. See id.; see also Lorber v. Passick as Tr. of Sylvia Passick
Revocable Tr., No. 4D20-393,
2021 WL 3891004 at *3 n.3 (Fla. 4th DCA
Sept. 1, 2021) (applying the old summary judgment standard when final
summary judgment was rendered before May 1, 2021).
“The standard of review of the entry of summary judgment is de novo.”
Craven v. TRG-Boynton Beach, Ltd.,
925 So. 2d 476, 479 (Fla. 4th DCA
2006). “[S]ummary judgment is proper if there is no genuine issue of
material fact and if the moving party is entitled to a judgment as a matter
of law.” Lorber,
2021 WL 3891004 at *3 (quoting Volusia County. v.
Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla. 2000)).
“The burden is initially on the movant. Only where the movant tenders
competent evidence in support of his motion does the burden shift to the
other party to come forward with opposing evidence.” Russell v. BAC Home
Loans Servicing, LP,
239 So. 3d 98, 99 (Fla. 4th DCA 2018) (quoting
Craven,
925 So. 2d at 480). “At both the trial and appellate level, all
evidence and inferences from the evidence must be taken in the light most
favorable to the non-moving party.” Moradiellos v. Gerelco Traffic Controls,
Inc.,
176 So. 3d 329, 334 (Fla. 3d DCA 2015).
“If there is disputed evidence on a material issue of fact, summary
judgment must be denied and the issue submitted to the trier of fact.”
Gorrin v. Poker Run Acquisitions, Inc.,
237 So. 3d 1149, 1153 (Fla. 3d DCA
2018) (quoting Perez-Gurri Corp. v. McLeod,
238 So. 3d 347, 350 (Fla. 3d
DCA 2017)).
At the summary judgment hearing, Appellant presented his own
affidavit and one from Strong as evidence that he was helping Strong
secure new housing because she was having financial difficulties and
neither intended to defraud Strong’s creditors. See
id. This evidence was
sufficient under the prior summary judgment standard to create a genuine
issue of material fact. See Nationsbank, N.A. v. Coastal Utils., Inc.,
814 So.
2d 1227, 1231 (Fla. 4th DCA 2002); see also Gorrin, 237 So. 3d at 1154
(quoting Auto. Sales, Inc. v. Federated Mut. Implement & Hardware Ins. Co.,
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256 So. 2d 386, 386 (Fla. 3d DCA 1972)) (“Ordinarily, the issue of fraud is
not a proper subject of a summary judgment.”).
We therefore reverse the trial court’s summary judgment and do so
without prejudice for Westport to file a subsequent motion for summary
judgment to be evaluated by the trial court under the new standard. See
Wilsonart, 308 So. 3d at 964 (reversing summary judgment without
prejudice for the party to seek summary judgment under the new
standard). Because this case is being remanded to the trial court for
further proceedings, we need not consider Appellant’s other issues on
appeal as Appellant will have the opportunity to raise them once again
below.
Reversed and remanded for further proceedings.
WARNER and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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