DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOHN G. MCGREGOR, et al.,
Appellants,
v.
FOWLER WHITE BURNETT, P.A., and RITTER, ZARETSKY, LIEBER &
JAIME, LLP,
Appellees.
No. 4D20-2684
[December 1, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Scott R. Kerner, Judge; L.T. Case No.
502006CA011826XXXMB AA.
Mandell Sundarsingh of Sundarsingh Law, P.L., Palm Beach Gardens,
for appellants.
Valerie Shea and Rodney Janis of Goldberg Segalla, LLP, West Palm
Beach, for appellee Ritter, Zaretsky, Lieber & Jaime, LLP.
Nicole K. Atkinson and Amy S.L. Terwilleger of Gunster, Yoakley &
Stewart, P.A., West Palm Beach, for appellee Fowler White Burnett, P.A.
GROSS, J.
This case involves the interplay between the proceedings
supplementary statute (section 56.29, Florida Statutes) and the Uniform
Fraudulent Transfer Act (chapter 726, Florida Statutes). We hold that
appellants’ fraudulent transfer claims brought under the ambit of section
56.29 were subject to the time limitations of chapter 726, so they were
time barred by the application of section 726.110, Florida Statutes.
Background and the Alleged Fraudulent Transfers 1
1 This statement of facts is limited to the facts relevant to the statute of limitations
issue, the ground upon which the trial court entered summary judgment. The
trial court never reached the issue of fault, so we do not address the parties’
Appellants 2 were the Plaintiffs in a lawsuit in the circuit court. In that
lawsuit, the trial court entered a consent final judgment against judgment
debtor Merco Group of the Palm Beaches, Inc. (“Merco”), awarding the
Plaintiffs over $1.9 million in damages arising out of Merco’s failure to
return deposits for the purchase of units in a failed condominium project.
After the entry of judgment, in June 2008, Merco received a refund
check from Palm Beach County in the amount of $781,205.76, which
represented a portion of the impact fee originally paid to develop the
project. Later that month, instead of depositing the check into one of its
own bank accounts, Merco instructed Fowler White Burnett, P.A. (“Fowler
White”) to deposit the check into that law firm’s trust account as escrow
funds. Thereafter, Fowler White disbursed the funds from its trust
account according to Merco’s instructions. The disbursements included
payments of the firm’s own invoices. By August 2009, the funds were
completely transferred out of Fowler White’s trust account.
The largest transfer from Fowler White occurred in April 2009. In that
transaction, Fowler White wired $511,267.85 to Ritter, Zaretsky, Lieber &
Jaime, LLC (“Ritter Zaretsky”) pursuant to Merco’s instructions. Ritter
Zaretsky later disbursed these funds.
Around 2013, the Plaintiffs learned of the refund check to Merco. The
Plaintiffs then sought discovery from Fowler White and Attorney Louis
Zaretsky concerning what happened to the funds. Merco objected to the
discovery on the basis of attorney-client privilege.
Following a hearing held pursuant to our decision in Merco Group of the
Palm Beaches, Inc. v. McGregor,
162 So. 3d 49 (Fla. 4th DCA 2014), the
trial court ordered Fowler White to produce documents concerning the
refund payment. The trial court stated that the record contained “prima
facie evidence that [Merco] used its attorney/client relationship with
[Fowler White] to promote an intended or actual fraud on the Plaintiffs and
upon the Court in an effort to conceal assets that would have been
discoverable and subject to disclosure.” Merco agreed to produce the
subject documents.
factual assertions regarding the culpability (or lack thereof) of Fowler White and
Ritter Zaretsky with respect to the transfers.
2Appellants include, among others, John G. McGregor, David Ghysles, Dr. David
Saraga, Harjas Chatwal, and Maria Mezzomo. Appellants’ attorney in this appeal
withdrew as counsel for certain other appellants.
2
On June 23, 2015, Fowler White produced the relevant documents to
the Plaintiffs’ counsel. Among these documents were: (1) a trust ledger
showing the transfers in and out of Fowler White’s trust account on behalf
of Merco; and (2) a letter from Merco directing Fowler White to wire
$511,267.85 to Ritter Zaretsky.
Proceedings Supplementary
On February 27, 2019, the Plaintiffs moved to commence proceedings
supplementary, seeking entry of judgments against Fowler White and
Ritter Zaretsky pursuant to sections 56.29(1), (2), (3)(b), and (6), Florida
Statutes. The Plaintiffs alleged that: (1) Merco’s deposit of the $781,205.76
refund check into Fowler White’s trust account was a fraudulent transfer
made to hinder, delay, and defraud the Plaintiffs, and (2) Fowler White’s
transfer of $511,267.85 to Ritter Zaretsky was a fraudulent transfer made
to hinder, delay, and defraud the Plaintiffs. The Plaintiffs sought a
judgment against Fowler White in the amount of $781,205.76, and against
Ritter Zaretsky in the amount of $511,267.85.
The trial court entered notices to appear directed to Fowler White and
Ritter Zaretsky.
Fowler White and Ritter Zaretsky each filed defenses to the notices to
appear, including the assertion that the fraudulent transfer claims were
barred by the statute of limitations.
Summary Judgment Motions and Orders
The Plaintiffs moved for partial summary judgment against Fowler
White and Ritter Zaretsky, arguing that the statute of limitations under
the Florida Uniform Fraudulent Transfer Act (“FUFTA” or “UFTA”) did not
apply to this proceeding.
Fowler White moved for summary judgment, arguing that the Plaintiffs’
fraudulent transfer claims were barred by chapter 726’s statute of
limitations because the claims were not brought within four years of the
transfers or within one year after the transfers reasonably could have been
discovered. Fowler White argued that section 56.29(3)(b) did not provide
a basis for an award of money damages and that the “Plaintiffs must
necessarily proceed under subsection (9) and remain subject to Chapter
726, including its statute of limitations.” Fowler White contended that the
Plaintiffs’ claims—brought solely through a Notice to Appear—were
3
procedurally improper because the Plaintiffs were required to file a
supplemental complaint pursuant to section 56.29(9).
Ritter Zaretsky similarly moved for summary judgment based upon the
statute of limitations.
In two separate orders, the trial court granted summary judgment in
favor of Fowler White and Ritter Zaretsky, prompting this appeal.
Standard of Review
A summary judgment is reviewed de novo. Gomez v. Fradin,
41 So. 3d
1068, 1071 (Fla. 4th DCA 2010). Likewise, a trial court’s interpretation of
a statute is reviewed de novo. Parker v. Parker,
185 So. 3d 616, 618 (Fla.
4th DCA 2016).
The Trial Court Properly Applied Section 56.29(9) and the Statute
of Repose in Section 726.110, Florida Statutes
A. The Plaintiffs’ Arguments
On appeal, the Plaintiffs argue that the trial court erred in ruling that
their fraudulent transfer claims could be pursued only under section
56.29(9) and were thus subject to the limitations periods in section
726.110. The Plaintiffs contend that they could proceed on their
fraudulent transfer claims pursuant to sections 56.29(2), (3)(b), and (6),
independent of section 56.29(9).
According to the Plaintiffs, the trial court improperly construed the
term “personal property” in section 56.29(3)(b) to mean only personal
property currently in the possession of a transferee that was capable of
being immediately seized by the Sheriff for execution. Furthermore, the
Plaintiffs argue, section 56.29(6) expands the relief that may be afforded
to a judgment creditor under section 56.29(3)(b) by allowing the entry of
money judgments against any person to whom a notice to appear has been
directed, irrespective of whether such person retained the property.
The Plaintiffs maintain that the legislature’s use of the word “section”
in subsection (6) makes it clear that the various forms of relief in
subsection (6) apply to the entirety of section 56.29, including subsection
(3)(b). Finally, the Plaintiffs argue that the inclusion of chapter 726 in
section 56.29(9) impliedly excludes chapter 726 from the other
subsections of section 56.29.
4
B. Principles of Statutory Interpretation
“The first step in determining the meaning of a statute is to examine its
plain language.” Jones v. State,
966 So. 2d 319, 326 (Fla. 2007). Under
the supremacy-of-text principle adopted by the Florida Supreme Court,
“[t]he words of a governing text are of paramount concern, and what they
convey, in their context, is what the text means.” Advisory Op. to Governor
re Implementation of Amend. 4, The Voting Restoration Amend.,
288 So. 3d
1070, 1078 (Fla. 2020) (quoting Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 56 (2012)). “Where possible,
courts must give full effect to all statutory provisions and construe related
statutory provisions in harmony with one another.” Forsythe v. Longboat
Key Beach Erosion Control Dist.,
604 So. 2d 452, 455 (Fla. 1992).
If the meaning of the statute “is clear and unambiguous, courts will not
look behind the statute’s plain language for legislative intent or resort to
rules of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t
of Health,
898 So. 2d 61, 64 (Fla. 2005). “[T]he statute’s plain and ordinary
meaning must control, unless this leads to an unreasonable result or a
result clearly contrary to legislative intent.”
Id.
C. Proceedings Supplementary Under Section 56.29
A proceeding supplementary is a post-judgment proceeding that allows
a judgment creditor “to ferret out what assets the judgment debtor may
have or what property of his others may be holding for him, or may have
received from him to defeat the collection of the lien or claim, that might
be subject to the execution.” Young v. McKenzie,
46 So. 2d 184, 185 (Fla.
1950).
Section 56.29, Florida Statutes, governs proceedings supplementary
and was last amended in 2016. See Ch. 2016-33, § 18, Laws of Fla. (eff.
July 1, 2016).
“The statute governing proceedings supplementary is equitable in
nature and should be liberally construed.” Longo v. Associated Limousine
Servs., Inc.,
236 So. 3d 1115, 1118 (Fla. 4th DCA 2018) (citation and
internal quotation marks omitted). The purpose of the statute is to “enable
speedy and direct proceedings in the same court in which the judgment
was recovered to better afford to a judgment creditor the most complete
relief possible in satisfying the judgment.”
Id. (citation omitted).
Proceedings under section 56.29 are not independent causes of action, but
rather are post-judgment proceedings that permit a creditor to effectuate
5
an existing judgment lien. Uoweit, LLC v. Fleming,
300 So. 3d 1201, 1203
(Fla. 4th DCA 2020).
The current version of section 56.29 contains the following provisions
relevant to this appeal.
Section 56.29(2) allows a judgment creditor to pursue any property of
the judgment debtor not exempt from execution in the hands of any person
or any property, debt, or other obligation due to the judgment debtor which
may be applied toward the satisfaction of the judgment:
(2) The judgment creditor shall, in the motion described in
subsection (1) or in a supplemental affidavit, describe any
property of the judgment debtor not exempt from
execution in the hands of any person or any property,
debt, or other obligation due to the judgment debtor
which may be applied toward the satisfaction of the
judgment. Upon filing of the motion and affidavits that
property of the judgment debtor, or any debt, or other
obligation due to the judgment debtor in the custody or
control of any other person may be applied to satisfy the
judgment, then the court shall issue a Notice to Appear. . . .
The Notice to Appear must describe with reasonable
particularity the property, debt, or other obligation that
may be available to satisfy the judgment . . . .
§ 56.29(2), Fla. Stat. (2018) (emphasis added). This court has stated that
section 56.29(2) “is well-suited to fraudulent transfer cases . . . .” Longo,
236 So. 3d at 1120. However, in context, the Longo court was merely
noting that the description requirement of section 56.29(2) made more
sense in fraudulent transfer cases than in alter ego cases. Id. at 1120–21.
Section 56.29(3)(b) allows a court to void a judgment debtor’s
fraudulent transfer of personal property and direct the sheriff to take the
property to satisfy the execution:
(3)(b) When any gift, transfer, assignment or other conveyance
of personal property has been made or contrived by the
judgment debtor to delay, hinder, or defraud creditors, the
court shall order the gift, transfer, assignment or other
conveyance to be void and direct the sheriff to take the
property to satisfy the execution. This does not authorize
seizure of property exempted from levy and sale under
execution or property which has passed to a bona fide
6
purchaser for value and without notice. Any person aggrieved
by the levy or Notice to Appear may proceed under ss. 56.16-
56.20.
§ 56.29(3)(b), Fla. Stat. (2018) (emphasis added).
We agree with the analysis of a federal bankruptcy court that section
56.29(3)(b) does not provide for an award of money damages and that relief
is limited to avoiding transfers of personal property in situations where the
property may be seized to satisfy the execution:
Subsection (3)(b) provides a narrowly tailored substantive
claim based in fraudulent transfer, independent of Florida’s
primary fraudulent transfer statute contained in chapter 726.
Where a judgment debtor has transferred personal property
in an effort to delay, hinder, or defraud creditors, the court
may declare the transfer void and direct the sheriff to take the
property. Subsection (3)(b) does not provide any basis for
an award of money damages. The relief is limited to
avoiding transfers of personal property, making the
property available for satisfaction of the judgment.
Based on the text of the statute, the personal property must
be the same property that the judgment debtor
transferred and must be something identifiable that the
sheriff may seize.
In re British Am. Ins. Co. (BAICO),
607 B.R. 753, 757 (Bankr. S.D. Fla.
2019) (emphasis added) (footnote omitted).
Section 56.29(6) allows the court to enter any “orders, judgments, or
writs required to carry out the purpose of this section, . . . including entry
of money judgments as provided in [sections] 56.16-56.19 against any
person to whom a Notice to Appear has been directed . . . irrespective of
whether such person has retained the property”:
(6) The court may order any property of the judgment debtor,
not exempt from execution, or any property, debt, or other
obligation due to the judgment debtor, in the hands of or
under the control of any person subject to the Notice to
Appear, to be levied upon and applied toward the satisfaction
of the judgment debt. The court may enter any orders,
judgments, or writs required to carry out the purpose of
this section, including those orders necessary or proper to
subject property or property rights of any judgment debtor to
7
execution, and including entry of money judgments as
provided in ss. 56.16-56.19 against any person to whom
a Notice to Appear has been directed and over whom the
court obtained personal jurisdiction irrespective of whether
such person has retained the property, subject to
applicable principles of equity, and in accordance with
chapters 76 and 77 and all applicable rules of civil procedure.
Sections 56.16-56.20 apply to any order issued under this
subsection.
§ 56.29(6), Fla. Stat. (2018) (emphasis added). “By its terms, section
56.29(6) grants a trial court broad authority to enter ‘any’ orders necessary
to carry out the purpose of the statute[.]” Buechel v. Shim, 46 Fla. L.
Weekly D265 (Fla. 5th DCA Jan. 29, 2021), rev. granted, SC21-249,
2021
WL 2155087 (Fla. May 27, 2021).
Section 56.29(9) permits a court to entertain claims brought under
chapter 726 and to enter “a money judgment against any initial or
subsequent transferee,” but such claims must be “initiated by a
supplemental complaint” and are “subject to” chapter 726:
(9) The court may entertain claims concerning the judgment
debtor’s assets brought under chapter 726 and enter any
order or judgment, including a money judgment against any
initial or subsequent transferee, in connection therewith,
irrespective of whether the transferee has retained the
property. Claims under chapter 726 brought under this
section shall be initiated by a supplemental complaint
and served as provided by the rules of civil procedure, and the
claims under the supplemental complaint are subject to
chapter 726 and the rules of civil procedure. The clerk of the
court shall docket a supplemental proceeding under the same
case number assigned to the original complaint filed by the
judgment creditor . . . .
§ 56.29(9), Fla. Stat. (2018) (emphasis added).
Chapter 726 is Florida’s enactment of the Uniform Fraudulent Transfer
Act. See § 726.101, Fla. Stat. (2018). Section 726.110, Florida Statutes,
sets forth the following limitations periods for fraudulent transfer claims
brought under chapter 726:
8
A cause of action with respect to a fraudulent transfer or
obligation under ss. 726.101-726.112 is extinguished unless
action is brought:
(1) Under s. 726.105(1)(a), within 4 years after the transfer
was made or the obligation was incurred or, if later, within 1
year after the transfer or obligation was or could reasonably
have been discovered by the claimant;
(2) Under s. 726.105(1)(b) or s. 726.106(1), within 4 years after
the transfer was made or the obligation was incurred; or
(3) Under s. 726.106(2), within 1 year after the transfer was
made or the obligation was incurred.
§ 726.110(1)–(3), Fla. Stat. (2018).
Under the pre-2014 version of section 56.29, a judgment creditor could
bring fraudulent transfer claims in proceedings supplementary for the life
of the judgment, notwithstanding the UFTA’s much shorter limitations
period. See Biel Reo, LLC v. Barefoot Cottages Dev. Co.,
156 So. 3d 506,
507–08, 511 (Fla. 1st DCA 2014). “But the court in Biel Reo, LLC
interpreted the 2012 version of the statute, and the legislature has since
amended it.” Uoweit, 300 So. 3d at 1204.
In 2014, “for the first time, the Florida legislature specifically
incorporated ‘the provisions of chapter 726 and applicable rules of civil
procedure’ in connection with ‘claims concerning the judgment debtor’s
assets brought under chapter 726.’” BAICO, 607 B.R. at 760 (quoting §
56.29(5), Fla. Stat. (2014)). The 2014 amendment made the following
changes to then-subsection (5):
(5) The court judge may order any property of the judgment
debtor, not exempt from execution, in the hands of any
person, or any property, debt, or other obligation due to
the judgment debtor, to be applied toward the satisfaction of
the judgment debt. The court may entertain claims
concerning the judgment debtor’s assets brought under
chapter 726 and enter any order or judgment, including
a money judgment against any initial or subsequent
transferee, in connection therewith, irrespective of
whether the transferee has retained the property.
Claims under chapter 726 are subject to the provisions
of chapter 726 and applicable rules of civil procedure.
9
Ch. 2014–182, § 17, Laws of Fla. (added text in bold and italicized; deleted
text in strikethrough). The legislature also made the following changes to
then-subsection (9):
(9) The court may enter any orders, judgments, or writs
required to carry out the purpose of this section, including
those orders necessary or proper to subject property or
property rights of any judgment debtor defendant to
execution, and including entry of money judgments
against any impleaded defendant irrespective of whether
such defendant has retained the property, subject to ss.
56.18 and 56.19 and applicable principles of equity, and
in accordance with chapters 76 and 77 and applicable
rules of civil procedure.
Id. (added text in bold and italicized; deleted text in strikethrough).
Finally, the legislature noted that the 2014 amendments to section
56.29 were “remedial in nature” and “shall be applied retroactively to the
full extent permitted by law.” Id. at § 18.
The legislature again amended the statute in 2016, renumbering
certain subsections. Ch. 2016–33, § 18, Laws of Fla. In the 2016
amendment, the provisions of subsection (5) “were moved to subsection (9)
and the legislature added an explicit requirement that such claims be
brought by [supplemental] complaint.” BAICO, 607 B.R. at 758. “To
underscore that UFTA claims are distinct from proceedings
supplementary,” the 2016 amendment provided that “UFTA claims must
be initiated by a supplemental complaint and served as provided by the
rules of civil procedure.” Fla. S. Comm. on Judiciary, CS for SB 1042
(2016), Staff Analysis 4 (Jan. 12, 2016).
In Uoweit, this court held that “chapter 726 governs the timeliness of a
UFTA claim brought under section 56.29(9).” 300 So. 3d at 1205. We
explained: “As amended in 2014 and 2016, the statute now specifically
permits claims under chapter 726 in a proceeding supplementary. But
those claims are subject to chapter 726 and the rules of civil procedure.”
Id. Thus, we affirmed the circuit court’s application of chapter 726’s
limitation period in dismissing a supplemental complaint to set aside
purported fraudulent transfers of real property. Id. at 1202, 1205.
Still, because Uoweit involved transfers of real property, we did not
address whether a judgment creditor can bypass section 56.29(9) and
10
instead elect to pursue a money judgment under subsections (2), (3)(b),
and (6) when the alleged fraudulent transfers involve personal property.
BAICO squarely confronted the issue of when section 56.29(2) may be
used to commence a fraudulent transfer claim, explaining: “Other than the
narrow category of claims that may be pursued under section 56.29(3)(b),
a claim based in fraudulent transfer cannot be commenced through the
issuance of a notice to appear.” 607 B.R. at 758.
BAICO also addressed whether section 56.29(6) authorizes the entry of
a money judgment based on a claim under subsection (3)(b), and
concluded that it does not:
In a related matter, [the judgment creditor] argued that
Fla.
Stat. § 56.29(6) authorizes this Court to enter a money
judgment based on a claim under subsection (3)(b). This
interpretation is contrary to the text of section 56.29 taken as
a whole. . . . The relief authorized in subsection (6) is the relief
that may be obtained from a proceeding relying on subsection
(2). To further this relief, the court may enter “orders,
judgments, or writs . . . including entry of money judgments .
. . irrespective of whether such person has retained the
property.”
Fla. Stat. § 56.29(6). In other words, the power to
enter money judgments under subsection (6) is limited to
claims aimed at recovery of property of the judgment debtor
held by another and property payable to the judgment debtor.
The power to enter money judgments under subsection (6)
does not extend to relief sought under subsection (3)(b).
To the contrary, subsection (3)(b) specifically limits the
available relief to turnover of the fraudulently
transferred personal property to the sheriff. This is
consistent with the fact that subsection (3)(b) provides a
narrow exception to the requirements of subsection (9) that
fraudulent transfer claims be pursued by complaint, in which
case money judgments may be obtained consistent with
chapter 726.
Id. at 757 n.1. (emphasis supplied) (second and third ellipses in original). 3
3 We have reviewed an unpublished decision of a federal district court that
disagreed with BAICO. See Saadi v. Maroun, No. 8:07-cv-1976-T-24 MAP,
2020
WL 774287, at *5 (M.D. Fla. Feb. 18, 2020). For the reasons set forth in this
opinion, we conclude that BAICO’s statutory analysis is correct. By contrast,
Saadi fails to fully grapple with the implications of section 56.29(9).
11
D. Application of the Law in this Case
Here, the trial court correctly ruled that the Plaintiffs’ fraudulent
transfer claims must be pursued under section 56.29(9) and are therefore
subject to chapter 726’s limitations periods. Section 56.29, taken as a
whole, should not be read as allowing the Plaintiffs to pursue a money
judgment under subsections (2), (3)(b), and (6)—independent of subsection
(9)—simply because the alleged fraudulent transfers involve personal
property.
First, subsection (2) requires the judgment creditor to describe either:
(1) any property of the judgment debtor not exempt from execution in the
hands of any person, or (2) any property, debt, or other obligation due to
the judgment debtor which may be applied toward the satisfaction of the
judgment. Here, the transferred funds are no longer in the hands of either
Fowler White or Ritter Zaretsky. Nor do the funds constitute “any
property, debt, or other obligation due to the judgment debtor.”
Second, subsection (3)(b) does not allow for an award of money
damages, but rather limits relief to voiding the transfer and directing the
sheriff to take identifiable personal property to satisfy the execution. In
this case, the Plaintiffs are not seeking an order directing the sheriff to
take any identifiable personal property of the judgment debtor now in the
hands of Fowler White or Ritter Zaretsky.
Third, section 56.29(6) does not authorize the entry of a money
judgment based on a claim under subsection (3)(b). To be sure, section
56.29(6) allows the court to “enter any orders, judgments, or writs required
to carry out the purpose of this section.” The Plaintiffs contend that the
phrase “this section” necessarily includes subsection (3)(b). However, the
phrase “this section” necessarily includes subsection (9) as well.
Subsections (3)(b) and (9) must be read together. Subsection (9)
specifically requires UFTA claims brought under section 56.29 to be
initiated by a supplemental complaint and to be subject to chapter 726’s
limitations periods. And subsection (3)(b) is properly read as “a narrow
exception to the requirements of subsection (9) that fraudulent transfer
claims be pursued by complaint[.]” BAICO, 607 B.R. at 757 n.1. It is well-
established that a specific statutory provision “covering a particular
subject matter is controlling over a general statutory provision covering
the same and other subjects in general terms.” Adams v. Culver,
111 So.
2d 665, 667 (Fla. 1959). Thus, the express language of subsections (3)(b)
and (9) controls over the more general language of subsection (6).
12
BAICO’s statutory analysis is persuasive. Subsection (3)(b) is properly
viewed as “a narrowly tailored substantive claim based in fraudulent
transfer, independent of Florida’s primary fraudulent transfer statute
contained in chapter 726.” BAICO, 607 B.R. at 757. But the legislature
clearly limited relief under subsection (3)(b) to voiding the transfer and
directing the sheriff to seize the property for execution. By contrast,
section 56.29(9) permits money judgments for property no longer in the
possession of the third-party transferee, but claims under this subsection
are expressly subject to the UFTA’s statute of repose. Because subsection
(3)(b) clearly specifies the relief available, subsection (6) cannot be read as
authorizing the court to enter a money judgment based on a claim under
subsection (3)(b).
Fourth, the reference to money judgments in subsection (6) weighs
against the Plaintiffs’ interpretation of the statute. Subsection (6)’s
reference to money judgments is as follows: “including entry of money
judgments as provided in ss. 56.16-56.19 . . . .” (Emphasis added).
Sections 56.16-56.19 outline the process for third parties to claim
ownership of property that the judgment creditor believes is subject to
execution as property of the judgment debtor. This process is inapplicable
to the facts of this case.
Finally, the Plaintiffs argue that the inclusion of chapter 726 in
subsection (9) impliedly excludes chapter 726 from the other subsections
of section 56.29. This argument may be correct, but it is beside the point.
The point here is that the Plaintiffs’ claims for a money judgment for the
alleged fraudulent transfers of personal property could not be brought
under subsections (3)(b) and (6) but instead had to be brought under
subsection (9). As the trial court explained: “[T]here is no reason to allow
fraudulent transfer claims for a money judgment under (3)(b) because they
are already allowed by 56.29(9) and FUFTA, whether based on actual or
constructive intent. In other words, the scope of section 56.29(9) is broad
enough to encompass the types of claims Plaintiffs seek to bring here.”
As the trial court reasoned, the Plaintiffs’ interpretation of section 56.29
would “lead to an absurd result whereby section 56.29 would
simultaneously provide for one cause of action for money judgments for
fraudulent transfers subject to FUFTA’s statute of repose (under 56.29(9))
and an identical cause of action for money judgments for fraudulent
transfers that is not subject to FUFTA’s statute of repose (under a
combination of 56.29(2), 56.29(3), and 56.29(6)).” (Emphasis omitted).
In sum, as the trial court ruled, because the Plaintiffs’ fraudulent
transfer claims were required to be pursued under section 56.29(9), the
13
Plaintiffs’ claims were subject to section 726.110’s statute of repose and
were time barred.
The Plaintiffs Were Not Denied Due Process in this Case
The Plaintiffs also argue that the trial court unconstitutionally denied
them due process by retroactively applying the 2016 statutory amendment
to hold their claims time barred. In other words, the Plaintiffs complain
that the trial court “retroactively applied the 2016 amendment to [the
Plaintiffs’] claims by stating they had to be brought under subsection (9),
a subsection that did not exist until after the claims were expired.”
We agree with the Appellees that the Plaintiffs were not denied due
process when the trial court applied the 2016 version of section 56.29 to
their claims, as the result would have been the same under either the 2014
or the 2016 version of the statute.
A new statute may not be retroactively applied to a cause of action that
accrued previously. Raphael v. Shecter,
18 So. 3d 1152, 1157 (Fla. 4th
DCA 2009). “Thus, retroactive abolition of substantive vested rights is
prohibited by constitutional due process considerations.” Metro. Dade Cty.
v. Chase Fed. Hous. Corp.,
737 So. 2d 494, 503 (Fla. 1999).
“Although an amendment to a statute of limitations cannot extinguish
an existing claim, it can, consistent with due process, shorten the
limitation period applicable to the prior claim if the intent to make the
amendment retroactive is clearly expressed, and if a reasonable time is
allowed within which to seek enforcement of such claim.” Polk Cty. BOCC
v. Special Disability Tr. Fund,
791 So. 2d 581, 583 (Fla. 1st DCA 2001).
Here, the Plaintiffs were not denied due process when the trial court
applied the 2016 version of section 56.29 to their claims, as the result
would have been the same under the 2014 version of the statute. The
critical language—that the trial court may entertain claims under chapter
726 in proceedings supplementary and that such claims “are subject to
the provisions of Chapter 726”—is the same in both the 2014 and the 2016
versions of section 56.29. Compare § 56.29(5), Fla. Stat. (2014), with §
56.29(9), Fla. Stat. (2016).
Just as with the 2016 version of section 56.29, the proper
interpretation of the 2014 version is that a judgment creditor cannot elect
to bring a fraudulent transfer claim seeking the remedy of a money
judgment (as opposed to seeking the remedy of an order directing the
sheriff to take personal property to satisfy the execution) without such
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claim being subject to the chapter 726 limitations periods. While the 2016
amendment renumbered certain subsections and clarified in the new
subsection (9) that UFTA claims in proceedings supplementary are to be
initiated by a supplemental complaint, this was not a substantive change
in the law.
The bottom line is that the 2014 amendment, rather than the 2016
amendment, first incorporated the limitations periods from chapter 726.
The legislature clearly expressed its intent to make the 2014 amendment
retroactive. And the Plaintiffs still had a reasonable time to bring their
claims, as they did not obtain evidence of the transfers at issue until June
23, 2015, and thus could have brought their claims until June 23, 2016.
Conclusion
For the foregoing reasons, we affirm the summary judgments in favor
of Fowler White and Ritter Zaretsky.
Affirmed.
FORST and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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