final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Escambia County. J. Scott
Michael Anthony Shaw and Stephen P. Drobny of Jones Walker
LLP, Miami, for Appellant.
O. Beasley and Phillip A. Pugh of Litvak, Beasley, Wilson
& Ball, LLP, Pensacola, for Appellees.
SNV-FL SSL, LLC, appeals an order denying its motion to avoid
a fraudulent transfer brought pursuant to section 56.29,
Florida Statutes (2013). We affirm.
case comes to us for a second time. See RREF SNV-FL SSL,
LLC v. Shamrock Storage, LLC, 178 So.3d 90 (Fla. 1st DCA
2015). We detailed the parties' dispute and the
procedural background in our earlier decision, id.
at 90-91, so we offer only the abridged version here: Richard
McAlpin owned a company that owned a Travelodge motel, and he
owned a second company (appellee Shamrock Storage) that
operated storage units. Shamrock Storage got a bank loan that
McAlpin personally guaranteed, and the company defaulted. A
few months before the loan was set to mature, McAlpin gave
his wife his motel-company stock, then receiving nothing in
return. Id. Ultimately the bank got a judgment
against McAlpin on the Shamrock loan, and it assigned that
judgment to RREF SNV-FL SSL, LLC (RREF, for short), the
sought to avoid McAlpin's transfer of the stock. RREF
contended this was a fraudulent transfer, and that the
motel-company stock should be available to help satisfy its
judgment against McAlpin. RREF alleged that the transfer was
fraudulent both because there was an actual intent to
defraud, and separately because there was constructive fraud.
The trial court denied relief, concluding that it was
"not satisfied that the transfer of Mr. McAlpin's
[stock] was made to hinder creditors." Id.
appealed, and we reversed. Id. We concluded that the
trial court wrongly placed the burden of proof on RREF.
Id. at 91. We explained that it was the
appellees' burden to demonstrate the transfer was
not fraudulent. Id. ("In situations
like this one, the presumption in § 56.29(6) is that a
spousal transfer should be voided unless the
defendant can prove that it did not make the transfer to
delay, hinder, or defraud creditors. . . ."); see
also § 56.29(6)(a), Fla. Stat. (2013);[*] Morton v. Cord
Realty, Inc., 677 So.2d 1322, 1324 (Fla. 4th DCA 1996)
(noting that § 56.29 "shifts the burden to the
defendant in proceedings supplementary to prove that a
transfer made within one year before service of process is
not fraudulent as to creditors").
remand, and based on this court's earlier decision, the
parties agreed the appellees had the burden to disprove both
constructive and actual fraud. The court conducted another
hearing on the matter, but for whatever reason, the parties
agreed neither side would present additional evidence. So the
court-now with a different presiding judge-looked at the same
record it already had. After hearing argument, the court
entered an order again denying RREF's request. This time,
the court found that the appellees proved McAlpin's stock
transfer was not fraudulent. Once again, RREF appeals.
section 726.106, a debtor's transfer is fraudulent as to
a creditor if (a) the creditor's claim arose before the
transfer, (b) the debtor was insolvent at the time of the
transfer or became insolvent because of the transfer, and (c)
the debtor made the transfer without receiving reasonably
equivalent value in exchange for the transfer. §
726.106(1), Fla. Stat. (2013). On remand, the parties agreed
that the appellees needed to disprove at least one of these
Whether RREF's claim arose ...