MANE FL CORP v. CALE BECKMAN and MALGORZATA BECKMAN ( 2023 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MANE FL CORP.,
Appellant,
v.
CALE BECKMAN and MALGORZATA BECKMAN,
Appellees.
No. 4D21-3424
[January 4, 2023]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David Haimes, Judge; L.T. Case No. CACE17-007057
(08).
Joseph S. Hughes of The Law Office of Joseph Hughes, P.A., Fort
Lauderdale, for appellant.
Allen M. Levine, Darren M. Goldman, and Yasin Daneshfar of Becker &
Poliakoff, P.A., Fort Lauderdale, for appellees.
GROSS, J.
Mane FL Corp. appeals a final summary judgment declaring that a
transfer of a condominium unit to Mane was void as a fraudulent transfer.
We affirm the summary judgment’s application of Florida’s Uniform
Fraudulent Transfer Act. The undisputed existence of seven badges of
fraud supports the trial court’s ruling, and the trial court properly rejected
Mane’s good faith defense.
I. Facts and Procedural History
The Judgment Creditors Purchase a Home from Duck Eye
In August 2016, Cale and Malgorzata Beckman paid $880,000 to
purchase a residential property in Parkland, Florida (the “Parkland
Property”) from Duck Eye, LLC (“Duck Eye”), whose two members and
managers were Nicolas Barcan (“Nicolas”) and his wife, Melanie Radic
(“Radic”). Before the sale, the Parkland Property was Duck Eye’s sole
asset.
After the closing, the Beckmans discovered that the Parkland Property
suffered from a defect that caused high levels of humidity and mold
growth. Duck Eye and its members were aware of the defect and failed to
disclose it to the Beckmans. Instead, Duck Eye concealed the defect by
hiding, painting, or covering the areas affected by mold growth.
The Underlying Lawsuit and Judgment
In April 2017, the Beckmans sued Duck Eye for fraudulent
concealment, breach of contract, and related claims. In 2019, the
Beckmans obtained a judgment against Duck Eye in the amount of
$417,077.53, plus pre-judgment interest.
Transfers Related to the 2700 Property
Meanwhile, three days after selling the Parkland Property to the
Beckmans, Duck Eye purchased real property known as the 2700 Property
for $920,000. The 2700 Property was Duck Eye’s only asset at the time.
In November 2017, while the underlying lawsuit was in progress, Duck
Eye transferred the 2700 Property to its two managers, Nicolas and Radic,
by quit claim deed for $100. Nicolas and Radic paid 70 cents in
documentary stamp costs for the transaction. Duck Eye did not disclose
to the Beckmans that the 2700 Property had been transferred to Nicolas
and Radic.
The trial court would later rule that Duck Eye’s transfer of the 2700
Property to Nicolas and Radic was a fraudulent transfer.
On April 30, 2018, Nicolas and Radic sold the 2700 Property for about
$1,000,000. Nicolas and Radic instructed the escrow agent to wire
$370,857.53 of the $1,000,000 proceeds to a trust account belonging to
their attorney, which the escrow agent did on May 7, 2018.
Transfers Related to the Aventura Unit
Meanwhile, on April 20, 2018, Nicolas and Radic entered into a contract
to buy a condominium unit in Aventura (the “Aventura Unit”) from a seller
for $400,000. They later executed an addendum to the contract, changing
the buyer’s name to “Mane FL Corp.” Nicolas’s father, Adrian Barcan,
attested that he is the sole shareholder of Mane.
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The sale of the Aventura Unit closed on or about May 7, 2018. The
attorney who represented Nicolas and Radic in the sale of the 2700
Property also served as the escrow agent for the sale of the Aventura Unit.
On May 7, 2018, the attorney transferred the $370,857.53 from the
original trust account to a second trust account. The amount due at
closing was $369,876.05.
On May 8, 2018, the attorney wired $369,876.05 to the seller’s
assignee, sending the money from the second trust account. The attorney
followed the disbursement instructions he received from Nicolas or Radic.
Nicolas and Radic did not disclose any of those transfers to the
Beckmans.
Judgment in Proceedings Supplementary is Entered Against
Nicolas and Radic
After the Beckmans obtained the judgment against Duck Eye, they
commenced a proceeding supplementary in which they impleaded Nicolas
and Radic, asserting that the transfer of the 2700 Property from Duck Eye
to Nicolas and Radic was fraudulent. The Beckmans also asserted that
Nicolas and Radic were the alter egos of Duck Eye.
The trial court entered defaults against Nicolas and Radic for their
failure to respond to the proceeding supplementary.
In February 2021, the trial court entered final judgment against Duck
Eye, Nicolas, and Radic in the proceeding supplementary, ruling that: (1)
the transfer of the 2700 Property from Duck Eye to Nicolas and Radic for
$100 was a fraudulent transfer with the intent to hinder, delay, or defraud
the Beckmans; and (2) Nicolas and Radic were the alter egos of Duck Eye.
The trial court voided the transfer of the 2700 Property and determined
that the $1,000,000 proceeds from the sale of the 2700 Property belonged
to Duck Eye.
Beckmans’ Proceedings Supplementary Against Mane
Meanwhile, in September 2020, the Beckmans filed their Second
Amended Proceeding Supplementary Complaint in which they impleaded
Mane and asserted in relevant part that: (1) the purchase of the Aventura
Unit with the proceeds from the sale of the 2700 Property was a fraudulent
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transfer; and (2) Nicolas and Radic were the alter egos of Mane. Mane
answered and raised affirmative defenses.
The Motion for Summary Judgment
The Beckmans moved for partial summary judgment on their
fraudulent transfer claim only.
Mane filed its opposition to summary judgment, which Mane later
amended. Mane argued that: (1) the Beckmans failed to establish the
absence of a genuine issue of fact as to whether Nicolas, Radic, or Duck
Eye had ownership or control over Mane; and (2) Mane received the funds
for the purchase of the Aventura Unit in good faith and for reasonably
equivalent value.
In support of its opposition to summary judgment, Mane filed the
affidavit of Adrian Barcan (the “Barcan Affidavit”), which essentially
claimed that Nicolas purchased the Aventura Unit for Mane as repayment
of a loan that Adrian had given him. Specifically, Adrian stated:
• He is the sole shareholder and officer of Mane.
• He is a citizen of Argentina and resides in San Martin De Los
Andes.
• From the period of June 2015 to 2017, he “sent a series of
checks to Nicolas, which totaled approximately $414,000.00,
with the express expectation, understanding, and verbal
agreement” that Nicolas would pay this money back. He
provided the Beckmans with copies of all these checks in
discovery.
• He formed Mane solely for the purpose of acquiring, owning,
and leasing the Aventura Unit, which he planned to use as a
vacation home and as a rental unit.
• At the time Mane purchased the Aventura Unit, Nicolas still
owed him approximately $414,000.00 from the payments he
sent to Nicolas from 2015 to 2017, so he asked Nicolas to
satisfy the debt by remitting the funds into escrow to purchase
the Unit for him, which Nicolas agreed to do.
• In satisfaction of the debt, Nicolas remitted the funds into
escrow so that Mane could purchase the Aventura Unit.
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• He did not have reason to believe, nor was he aware of, any
fraudulent actions concerning the funds or any claim to the
funds by third parties.
• He did not become aware that the funds were being claimed
by the Beckmans until the instant action was filed against
him.
• The Aventura Unit had always been solely owned and
controlled by Mane, and he was “its sole controller and
shareholder.” Neither Nicolas, Radic, nor Duck Eye have had
any ownership of, control over, or financial interest in the Unit
at any time.
Although the Beckmans moved to strike the Barcan Affidavit as a sham,
the trial court did not do so.
The Summary Judgment Hearing
At the summary judgment hearing, Mane’s counsel conceded that Mane
was not disputing “any of the actual transaction[s]” or the “tracing of the
money.” Instead, Mane argued that Adrian did not know anything about
the source of the funds, as he believed that “these were Nicolas’s funds
that he was putting into escrow to buy the property as sort of repayment
for all the payments that [Adrian] had been sending him.”
At the end of the hearing, the trial court granted the Beckmans’ motion
for partial summary judgment, reasoning:
There are no genuine issues of material fact, and everything
that’s been established has established these were the direct
proceeds that belonged to the plaintiff[s] at the time and now
are in a condo, notwithstanding the affidavit of Mr. Barcan.
So there are no genuine issues of material fact, and plaintiff
is entitled to partial summary judgment, so the motion is
granted.
The trial court then clarified that it was granting final summary judgment
on the fraudulent transfer claim, as the Beckmans explained that the
remaining alter ego claim was merely an alternative theory of liability.
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Final Summary Judgment
The trial court entered final summary judgment in favor of the
Beckmans, concluding that there were no genuine disputes of material fact
and that the transfer of the Aventura Unit to Mane was void as a
fraudulent transfer.
The written order referenced the assertions in the Barcan Affidavit and
explained why those facts, even if true, did not affect the court’s ruling.
Specifically, the trial court ruled that the Beckmans were entitled to
judgment on their fraudulent transfer claim because the record evidence
proved seven badges of fraud.
The trial court further concluded that Mane’s affirmative defenses failed
as a matter of law.
The trial court rejected Mane’s defense that it was a good faith
transferee for reasonably equivalent value. This defense was premised on
the alleged loan from Adrian to Nicolas, but the trial court explained that
the defense “is only available to the transferee—in this case Mane—and
Mane did not pay any value, reasonable or otherwise, for the Aventura Unit
in exchange for the transfer.”
Although Nicolas’s purchase of the Aventura Unit for Mane “was
purportedly to pay back a loan from Adrian Barcan,” the trial court
emphasized that “the lender was Adrian Barcan, not Mane.” Applying the
rule that “corporations are legal entities separate and distinct from the
persons comprising them,” the trial court concluded: “So, even if such a
loan existed, it would not change the conclusion that Mane paid nothing
for the Aventura Unit and, hence is not a good faith transferee for a
reasonably equivalent value.”
Mane moved for rehearing and attached affidavits from Adrian Barcan
and a tax preparer. The new affidavits addressed issues covered in the
Beckmans’ motion to strike. The trial court denied the motion for
rehearing.
II. The Trial Court Properly Granted the Motion for Summary
Judgment Under the Florida Uniform Fraudulent Transfer Act
Mane argues that there were genuine issues of material fact that
precluded summary judgment. The Beckmans counter that the
substitution of Mane as the buyer of Aventura was a fraudulent transfer.
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Summary Judgment Standard
Florida’s new summary judgment rule governs the adjudication of any
summary judgment motion decided on or after May 1, 2021, including in
pending cases. In re Amends. to Fla. R. of Civ. P. 1.510, 317 So. 3d 72, 77
(Fla. 2021). The new rule is to be applied in accordance with the federal
summary judgment standard. Id. at 74.
The rule now provides that summary judgment is appropriate where
“there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). “[T]he
correct test for the existence of a genuine factual dispute is whether ‘the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d at 75
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Stated another way, the inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson, 477
U.S. at 251–52. The “mere existence of a scintilla of evidence” in support
of the non-movant’s position is insufficient to defeat summary judgment.
Id. at 252.
The Record Establishes as a Matter of Law that Nicolas and
Radic Had Fraudulent Intent in Transferring the Aventura Unit
Under Florida’s Uniform Fraudulent Transfer Act (“UFTA”), a transfer
is fraudulent as to a creditor if the debtor made the transfer “[w]ith actual
intent to hinder, delay, or defraud any creditor of the debtor.” §
726.105(1)(a), Fla. Stat. (2017).
Because establishing actual intent through direct proof is difficult, the
UFTA looks to circumstantial indicia of intent commonly known as “badges
of fraud.” Amjad Munim, M.D., P.A. v. Azar, 648 So. 2d 145, 152 (Fla. 4th
DCA 1994). Courts may consider, among other factors, whether:
(a) The transfer or obligation was to an insider.
(b) The debtor retained possession or control of the property
transferred after the transfer.
(c) The transfer or obligation was disclosed or concealed.
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(d) Before the transfer was made or obligation was incurred,
the debtor had been sued or threatened with suit.
(e) The transfer was of substantially all the debtor’s assets.
(f) The debtor absconded.
(g) The debtor removed or concealed assets.
(h) The value of the consideration received by the debtor was
reasonably equivalent to the value of the asset transferred or
the amount of the obligation incurred.
(i) The debtor was insolvent or became insolvent shortly after
the transfer was made or the obligation was incurred.
(j) The transfer occurred shortly before or shortly after a
substantial debt was incurred.
(k) The debtor transferred the essential assets of the business
to a lienor who transferred the assets to an insider of the
debtor.
§ 726.105(2)(a)-(k), Fla. Stat. (2017). “The language of the statute makes
clear that the badges of fraud are nonexclusive and that courts may
consider other factors in determining a debtor’s intent.” In re Jennings,
332 B.R. 465, 469 (Bankr. M.D. Fla. 2005).
“While one specific badge of fraud is insufficient to establish fraudulent
intent, several of them together may afford a basis to infer fraud.” Nat’l
Mar. Servs., Inc. v. Straub, 979 F. Supp. 2d 1322, 1328 (S.D. Fla. 2013)
(internal quotation marks omitted). Two or three badges of fraud can be
enough to support a finding of actual intent to defraud. See Jennings, 332
B.R. at 472 & n.7 (finding actual intent to defraud based upon two badges
of fraud, coupled with the timing of the transaction); In re Toy King Distrib.,
Inc., 256 B.R. 1, 139–41 (Bankr. M.D. Fla. 2000) (finding actual intent to
defraud based upon “at least three” badges of fraud); see also S.E.C. v.
Elliott, 953 F.2d 1560, 1568 (11th Cir. 1992) (concluding that two badges
of fraud “may very well be enough to support the district court’s finding
that the bonds were transferred with intent to defraud,” but remanding for
further proceedings on the debtors’ defenses).
The existence of badges of fraud creates a prima facie case, thereby
raising a rebuttable presumption that the transaction is void. Gen. Elec.
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Co. v. Chuly Int’l, LLC, 118 So. 3d 325, 327 (Fla. 3d DCA 2013). Once a
prima facie case has been established, the burden shifts to the party
defending the transfer to show that it was made without intent to “delay,
hinder or defraud creditors.” Mejia v. Ruiz, 985 So. 2d 1109, 1114 (Fla.
3d DCA 2008).
Applying Florida’s old summary judgment standard, this court once
declared that summary judgment is available in fraudulent transfer cases
“only in extraordinary circumstances.” Nationsbank, N.A. v. Coastal Utils.,
Inc., 814 So. 2d 1227, 1231 (Fla. 4th DCA 2002). However, in light of the
new summary judgment rule, that observation no longer applies.
Under the newly-adopted federal standard, if “the evidence is one-sided,
the plaintiff may be entitled to summary judgment on a fraudulent transfer
claim.” In re Bifani, No. 8:12-bk-00562-MGW, 2014 WL 12795661, at *6
(M.D. Fla. Feb. 13, 2014), aff’d in part, rev’d in part on other grounds, 580
F. App’x. 740 (11th Cir. 2014). For example, the Eleventh Circuit has
affirmed a summary judgment on a fraudulent transfer claim where four
badges of fraud were present. In re Bifani, 580 F. App’x. 740, 745–47 (11th
Cir. 2014); accord In re Truong, 285 F. App’x. 837, 840 (3d Cir. 2008)
(concluding that the district court correctly affirmed the bankruptcy
court’s summary judgment based upon five badges of fraud).
Here, the record demonstrates that the Beckmans established at least
seven badges of fraud.
Badge #1: Whether the Transfer was to an Insider
Under Florida law, an “‘Insider’ includes” a “relative of a general
partner, director, officer, or person in control of the debtor.” §
726.102(8)(b)6., Fla. Stat. (2017). The statute’s use of the word “includes”
suggests that the statutory definition of “Insider” is listing non-exhaustive
examples. Moreover, “[a] close relationship between a transferor debtor
and a transferee is a factor equivalent to a badge of fraud which should be
considered in determining fraudulent intent.” Gen. Trading Inc. v. Yale
Materials Handling Corp., 119 F.3d 1485, 1499 (11th Cir. 1997).
Here, Mane is a corporation and thus is not a relative of Nicolas, who
was a person in control of Duck Eye. Still, the trial court was permitted
to consider the evidence that Mane’s sole shareholder is Nicolas’s father,
Adrian. Therefore, the trial court could find that the transfer of the
Aventura Unit to Mane was the functional equivalent of a transfer between
insiders or was otherwise a factor equivalent to a badge of fraud. See In
re Bifani, 580 F. App’x. at 745 (affirming the bankruptcy court’s finding
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that the transferee was “the functional equivalent of an ‘insider’ based on
her long-term relationship and cohabitation with [the debtor],” but
explaining that, even if the definition of “insider” did not include the
transferee, the bankruptcy court still “did not err in considering the
relationship between [the debtor] and [the transferee] as the equivalent of
a badge of fraud”).
Badge #2 – Whether the Transfer was Disclosed or
Concealed
Here, the relevant transfers were concealed from the Beckmans.
Nicolas and Radic did not disclose to the Beckmans the purchase of the
Aventura Unit with funds obtained through the sale of the 2700 Property.
Nor did they disclose to the Beckmans the transfer of the Aventura Unit to
Mane, which was accomplished through the execution of an addendum to
the sales contract changing the buyer’s name from Nicolas and Radic to
Mane. The trial court properly found the presence of this badge of fraud.
Badge #3 – Before the Transfer Was Made, the Debtor had
been Sued
Before the transfer was made, Duck Eye had been sued. The record
shows that, while the Beckmans’ lawsuit against Duck Eye was pending,
Duck Eye transferred the 2700 Property to Nicolas and Radic in exchange
for nominal consideration, and then Nicolas and Radic sold the 2700
Property and used the proceeds to purchase the Aventura Unit for Mane.
Thus, the trial court properly found the presence of this badge of fraud.
Badge #4 – The Transfer was Substantially All of the
Debtor’s Assets
Here, the 2700 Property, Duck Eye’s sole asset, was transferred to
Nicolas and Radic for nominal consideration. After Nicolas and Radic sold
the 2700 Property and made disbursements to various third parties, they
used the remaining cash from the sale—$370,857.53—to purchase the
Aventura Unit for Mane. The Beckmans were unable to locate any other
assets belonging to Nicolas or Radic from which to satisfy their judgment.
Thus, the record supports the trial court’s conclusion that the transfer of
the Aventura Unit to Mane was substantially all of the assets owned by
Nicolas or Radic.
Badge #5 – The Debtor was Insolvent or Became Insolvent
Shortly After the Transfer
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“A debtor is insolvent if the sum of the debtor’s debts is greater than all
of the debtor’s assets at a fair valuation.” § 726.103(1), Fla. Stat. (2017).
The term “asset” does not include property that “is generally exempt under
nonbankruptcy law.” § 726.102(2)(b), Fla. Stat. (2017). Further, “[a]
debtor who is generally not paying his or her debts as they become due is
presumed to be insolvent.” § 726.103(2), Fla. Stat. (2017).
Here, not long after the transfer of the Aventura Unit, the trial court
entered judgments against Duck Eye, Nicolas, and Radic. The judgments
remain unsatisfied. And, following the transfer of the Aventura Unit, the
Beckmans have been unable to locate any other assets of the debtors from
which to satisfy the judgments. Thus, the record supports the trial court’s
conclusion that the debtors were insolvent or became insolvent shortly
after the transfer of the Aventura Unit was made.
Badge #6 – The Debtor Removed or Concealed Assets
The debtors did not disclose any of the following events to the
Beckmans: Duck Eye’s acquisition of the 2700 Property, Duck Eye’s
transfer of the 2700 Property to Nicolas and Radic for nominal
consideration, the sale of the 2700 Property, the purchase of the Aventura
Unit with the proceeds from the sale of the 2700 Property, or the transfer
of the Aventura Unit to Mane via an addendum to the contract changing
the name of the buyer. Thus, the record supports the trial court’s
conclusion that the debtors removed or concealed assets.
Badge #7 – The Debtor Absconded
Here, after a diligent search, the Beckmans were unable to locate either
Nicolas or Radic. They relied upon substituted service to serve them with
the motion for proceedings supplementary. Further, Duck Eye was
administratively dissolved for failing to file annual reports. Thus, the
record supports the trial court’s conclusion that the debtors absconded.
Summary
Given the existence of at least seven badges of fraud, the evidence in
this case is so “one-sided” that the only reasonable conclusion is that
Nicolas and Radic transferred the Aventura Unit to Mane with the actual
intent to defraud the Beckmans.
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Mane’s Good Faith Defense Fails as a Matter of Law
Mane argues that it is entitled to the benefit of a statutory good faith
defense. We reject that claim because Mane did not exchange reasonably
equivalent value for the Aventura Unit, nor was it a subsequent transferee
of a person who took in good faith and for a reasonably equivalent value.
Under the UFTA, a transfer “is not voidable under s. 726.105(1)(a)
against a person who took in good faith and for a reasonably equivalent
value or against any subsequent transferee or obligee.” § 726.109(1), Fla.
Stat. (2017). “Value is given for a transfer or an obligation if, in exchange
for the transfer or obligation, property is transferred or an antecedent debt
is secured or satisfied[.]” § 726.104(1), Fla. Stat. (2017) (emphasis added).
The analysis of reasonably equivalent value “focuses on the benefit
actually obtained by the debtor in the transaction.” In re Berkman, 517
B.R. 288, 301 (Bankr. M.D. Fla. 2014). “And reasonably equivalent value
need not be dollar-for-dollar.” Id. at 302.
Mane argues that Adrian, who attested that he had lent Nicolas over
$400,000, was “the original constructive recipient” of the funds used to
purchase the Aventura Unit. Rather than personally accepting the funds,
the argument goes, Adrian “skipped an unnecessary step” by
“constructively receiving” the funds. In exchange, the argument goes,
Adrian provided reasonably equivalent value by satisfying the debt owed
to him by Nicolas. Thus, Mane contends that “[b]ecause Adrian, as the
initial transferee, received the Funds in good faith for reasonably
equivalent value, and because [Mane] received the Funds as a subsequent
transferee, [Mane] was not required to pay a reasonably equivalent value.”
Mane’s good faith defense turns on whether Adrian was “a person who
took in good faith and for a reasonably equivalent value.” As a matter of
statutory interpretation, Mane is correct that if Adrian was “a person who
took in good faith and for a reasonably equivalent value,” and if Mane was
a “subsequent transferee” of Adrian, then Mane would not have been
required to exchange reasonably equivalent value to either Nicolas or
Adrian.
But Adrian was not a transferee of the Aventura Unit, nor was he a
transferee of the funds used to purchase the Aventura Unit. In short,
Adrian never “took” the Aventura Unit or the funds used to purchase it
within the meaning of section 726.109(1).
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“The general rule is that corporations are legal entities separate and
distinct from the persons comprising them.” Am. States Ins. Co. v. Kelley,
446 So. 2d 1085, 1086 (Fla. 4th DCA 1984). A share of stock does not
vest the owner with any right or title to any of the corporation’s property.
Corp. Express Office Prods., Inc. v. Phillips, 847 So. 2d 406, 412 (Fla. 2003)
(citing Cruising World, Inc. v. Westermeyer, 351 So. 2d 371, 373 (Fla. 2d
DCA 1977)). When property is transferred to a corporation, the law does
not treat the principal of the corporation as the recipient of the property.
Mane asks this court to pretend that Adrian was the recipient of the
funds used to purchase the Aventura Unit. But Mane’s theory that Adrian
was the “constructive recipient” of the funds is inconsistent with the plain
language of section 726.109(1). Having chosen to conduct business
through corporations, the Barcans cannot disregard a corporate structure
when it becomes inconvenient to a legal theory they wish to pursue.
Mane itself does not qualify as a “person who took in good faith and for
a reasonably equivalent value.” Mane’s argument disregards the fact that
corporations are legal entities distinct from the persons who own them.
Regardless of whether Mane took the Aventura Unit in good faith, Mane
did not take the property “for a reasonably equivalent value.” Mane paid
nothing for the Aventura Unit.
Nor was Mane a subsequent transferee of a person who took in good
faith and for a reasonably equivalent value. As explained above, even if a
loan existed from Adrian to Nicolas, Adrian was not a transferee of the
Aventura Unit or the funds used to purchase it. Adrian never exercised
any dominion or control over the funds used to purchase the Aventura
Unit, nor did Adrian ever hold title to the Aventura Unit. Instead, the
funds used to purchase the Aventura Unit were wired from the proceeds
of the sale of the 2700 Property into the trust account of Nicolas’s attorney,
who then wired the funds to the assignee of the Aventura Unit’s seller on
behalf of Mane, the buyer identified in an addendum to the sales contract.
This case involved a real estate shell game with shifting corporate
ownerships that cannot survive the legal scrutiny required under the plain
language of the Uniform Fraudulent Transfer Act. The trial court properly
entered summary final judgment on the fraudulent transfer claim.
Mane’s Procedural Arguments are Without Merit
Finally, we reject appellant’s two procedural arguments. Mane
complains that the trial court improperly struck the Barcan Affidavit, but
the premise of the argument is flawed. The record establishes that the
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trial court never ruled on the motion to strike. This is clear from both the
court’s oral ruling at the summary judgment hearing and the court’s later
written final judgment. The final judgment referenced facts alleged in the
Barcan Affidavit, but concluded that those facts did not create a genuine
factual dispute.
Mane next argues that the court erred in denying its motion for
rehearing in light of new affidavits asserting additional facts. There was
no abuse of discretion in the trial court’s determination “that a counter-
affidavit presented for the first time on rehearing of a summary judgment
is too late.” Pangilinan v. Broward Cnty., 914 So. 2d 1094, 1097 (Fla. 4th
DCA 2005); see also Fla. R. Civ. P. 1.510(c)(5) (providing that the
nonmoving party to a summary judgment motion “must serve a response”
to the motion “[a]t least 20 days before the time fixed” for the summary
judgment hearing). Rule 1.510(e) affords the trial judge broad discretion
in handling a failure “to properly address another party’s assertion of fact.”
Regardless, the new affidavits essentially sought to rebut certain
accusations in the motion to strike, but the additional facts set forth in
the affidavits were irrelevant to the reasons the trial court granted
summary judgment on the fraudulent transfer claim.
Affirmed.
LEVINE and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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