FTBB, Inc. v. Bing Charles W. Kearney, Jr.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11942
Non-Argument Calendar
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D.C. Docket No. 8:09-cv-01841-EAK-MAP
REGIONS BANK,
an Alabama state chartered bank, as successor in interest to AmSouth Bank,
Plaintiff,
FTBB, LLC,
Plaintiff - Appellee,
versus
G3 TAMPA, LLC,
a Florida limited liability company,
Defendant,
BING CHARLES W. KEARNEY, JR.,
BRIAN SEEGER,
TRACY J. HARRIS, JR.
SECOND SUCCESSOR LARRY S. HYMAN,
assignee for G3 Tampa, LLC, a Florida limited liability company,
BK FAMILY INVESTMENT PARTNERSHIP I, LTD, et al.,
Defendants - Appellants,
TRAVELERS CASUALTY & SURETY
COMPANY OF AMERICA,
Intervenor - Appellee.
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____________________________
Appeal from the United States District Court
For the Middle District of Florida
____________________________
(March 11, 2019)
Before MARTIN, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Bing Kearney appeals the post-judgment decision of the district court that
his bank account is subject to garnishment by his creditors because he and his wife
hold it as a joint tenancy rather than a tenancy by the entireties. Having reviewed
the evidence about the opening of the account and the Florida law governing joint
ownership of bank accounts, we affirm.
* * *
This appeal arises out of federal litigation over the financing of a Gulfstream
jet. Regions Bank sued Kearney and other guarantors of the debt in 2009 to collect
more than $5 million they owed. After a bench trial in 2012, the district court
entered a $3.4 million judgment against Kearney, which this Court affirmed.
Regions Bank v. Kearney, 597 F. App’x 1012, 1015 (11th Cir. 2014).
In an effort to collect on that judgment, Regions served USAmeriBank with
a writ of garnishment on several Florida bank accounts that Kearney held there.
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The account that is the subject of this appeal (hereinafter “the 0056 account”)
contained $625,305 and was jointly held by Kearney and his wife. Kearney moved
to dissolve the writ of garnishment on the grounds that the funds were held as a
tenancy by the entireties and therefore could not be attached by a creditor of one
spouse.1 In 2013, after an evidentiary hearing at which Kearney and other
witnesses testified about Kearney’s intent to open the 0056 account as a tenancy by
the entireties, the magistrate judge issued a report and recommendation that agreed
with Kearney’s characterization of the account. The district court rejected the
recommendation of the magistrate judge in 2015, finding that the clear and
unambiguous evidence of the account’s signature card established that it was
opened as a joint tenancy without the need to consider any additional evidence, and
denying Kearney’s motion to dissolve the writ of garnishment. Regions Bank v.
Hyman, 91 F. Supp. 3d 1234, 1255–57 (M.D. Fla. 2015).
1
Tenancy by the entireties is a form of joint ownership of property that is unique to married
couples. Property held by spouses as a tenancy by the entireties is indivisible, because each
spouse is possessed of the whole. Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 52–53
(Fla. 2001). Other forms of joint ownership are tenancy in common and joint tenancy with right
of survivorship. Id. at 53. The distinction matters to Kearney because joint tenants are considered
to each possess their own equal share of the whole when they both are alive. Id. Thus, “a creditor
of one of the joint tenants may attach the joint tenant’s portion of the property to recover that
joint tenant’s individual debt.” Id. By contrast, “when property is held as a tenancy by the
entireties, only the creditors of both the husband and wife, jointly, may attach the tenancy by the
entireties property; the property is not divisible on behalf of one spouse alone, and therefore it
cannot be reached to satisfy the obligation of only one spouse.” Id.
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Kearney then entered into mediations with Regions, and Regions agreed to
sell its $3.4 million judgment against Kearney to FTBB, LLC, a shelf corporation
formed by Kearney, for $2.625 million. Kearney Constr. Co., LLC v. Travelers Cas.
& Sur. Co. of Am., 712 F. App’x 907, 909 (11th Cir. 2017). FTBB was substituted
for Regions as a party to the judgment and garnishment, but it did not collect from
Kearney’s USAmeriBank accounts. Id. at 910.
Next, the 0056 account was garnished by Travelers Casualty & Surety
Company of America (“Travelers”) in an attempt to collect on a separate $3.7
million judgment it had won against Kearney in 2011. Id. at 909. Kearney and
FTBB objected to that writ of garnishment and moved to dissolve it, arguing that
FTBB had a priority claim to the funds. Id. at 910. Travelers alleged that the
assignment from Regions to FTBB was a fraudulent transfer and asked the court to
void the assignment or to subordinate FTBB’s claim to Travelers’. Id. That district
court agreed with Travelers and granted it a priority claim on the funds. Id. at 910–
11. On appeal, this Court affirmed the finding that the transfer to FTBB was
fraudulent and approved the remedy fashioned by the district court. Id. at 912–13.
In the present action, the district court had stayed its proceedings pending
the resolution of the Travelers action. In 2018, after our mandate issued, it entered
an order granting Travelers priority over the funds in the 0056 account. Kearney
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now appeals that 2018 order and the order from 2015 denying Kearney’s motion to
dissolve the writ of garnishment.
On appeal in this Court, Travelers filed a motion to intervene and to dismiss
the appeal from the 2015 judgment as untimely. Kearney responded with a motion
to strike. Our Court denied the motion to strike and allowed Travelers to intervene;
Travelers has filed the sole appellee’s brief in this appeal. We denied the motion to
dismiss, reasoning that the 2015 judgment was not a separately final and
appealable order because it did not completely resolve all of the issues in the
garnishment proceedings. Order, Sept. 12, 2018, ECF No. 51 at 2–3. Both the 2015
and 2018 orders of the district court pertaining to the 0056 account are thus before
us on appeal.
* * *
Kearney’s main argument is that the district court incorrectly concluded that
the 0056 account was held as a joint tenancy rather than as a tenancy by the
entireties. The parties dispute the standard of review that applies to this question.
The threshold issue is the decision of the district court that the account signature
card was unambiguous, and whether a contract is ambiguous is a question of law.
Strama v. Union Fid. Life Ins. Co., 793 So. 2d 1129, 1132 (Fla. 1st Dist. Ct. App.
2001). We are thus entitled to review that question de novo. Frulla v. CRA
Holdings, Inc., 543 F.3d 1247, 1252 (11th Cir. 2008). Were we to agree with
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Kearney that the card is ambiguous, we would then review the factual findings of
the district court for clear error and its evidentiary rulings for abuse of discretion.
See Sitomer v. Orlan, 660 So. 2d 1111, 1115 (Fla. 4th Dist. Ct. App. 1995)
(“Whether the parties created a tenancy by the entireties in a bank account . . . is a
question of fact.”); United States v. Magluta, 418 F.3d 1166, 1177 (11th Cir. 2005)
(“We review the district court’s evidentiary rulings for an abuse of discretion . . .
and we may overturn findings of fact only if clearly erroneous”).
Florida law mandates a presumption in favor of ownership of bank accounts
by spouses as tenancies by the entireties. “Any deposit or account made in the
name of two persons who are husband and wife shall be considered a tenancy by
the entirety unless otherwise specified in writing.” Fla. Stat. § 655.79(1); accord
Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 58 (Fla. 2001) (“if the
signature card of the account does not expressly disclaim the tenancy by the
entireties form of ownership, a presumption arises that a bank account titled in the
names of both spouses is held as a tenancy by the entireties”). Kearney maintains
that he always intended to open the account as a tenancy by the entireties, on the
advice of his lawyers, in order to protect from garnishment the funds he would
deposit there.
Standing between Kearney and this presumption, however, is the signature
card he signed when he opened the 0056 account. Under Florida law, that card can
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be the dispositive piece of evidence; absent evidence of fraud, the signature card’s
express disclaimer of a tenancy by the entireties ends the inquiry into what the
owner intended. Beal Bank, 780 So. 2d at 61. What Kearney’s signature card says
is undisputed by the parties. In the section titled “OWNERSHIP OF ACCOUNT -
CONSUMER PURPOSE (Select one and initial),” the box for “Multiple-Party
Account” is checked and initialed, while the box immediately below it for
“Multiple-Party Account - Tenancy by the Entireties” is not.
Kearney argues, and the magistrate judge agreed, that this designation was
ambiguous. He asserts that the layout of this section of the card is confusing and
that one could reasonably believe that the checked box belonged to “Tenancy by
the Entireties” below it. We disagree. Reviewing the signature card for ourselves,
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we find it unambiguous. It clearly offered the option of a tenancy by the entireties
and Kearney clearly selected something else, a joint tenancy with rights of
survivorship. 2
Florida’s Supreme Court precedent is also clear: an express disclaimer of a
tenancy by the entireties can arise when “the financial institution affirmatively
provides the depositors with the option on the signature card to select a tenancy by
the entireties among other options, and the depositors expressly select another form
of ownership option.” Beal Bank, 780 So. 2d at 60. Kearney’s signature card thus
expressly disclaimed a tenancy by the entireties and otherwise specified in writing
a different form of ownership. Wexler v. Rich, 80 So. 3d 1097, 1099–100 (Fla. 4th
Dist. Ct. App. 2012) (finding thus when account owner checked “Multiple Party
Account” rather than “Multiple-Party Account—Tenancy by the Entireties”); cf.
Beal Bank, 780 So. 2d at 60 (a designation of a joint tenancy with right of
survivorship, without more, is not a disclaimer of tenancy by the entireties).
2
Kearney testified before the magistrate judge that he first attempted to open the 0056 account as
a tenancy by the entireties held by himself, his wife, and his son, going so far as to have all three
of them sign the signature card. When USAmeriBank told him this was impossible, the bank
produced a new signature card that was partially filled out, with “Multi-Party Account” checked.
He and his wife initialed next to the X on the “Multi-Party Account” line without really looking:
“I didn’t have my glasses on, so I just signed where she put the X.” [R. doc. 363 at 54] Although,
as we next discuss, we will not consider this extrinsic evidence of intent, we note that Florida
law imposes a duty to learn the contents of a contract before signing it and so presumes that a
signing party has done so. See Wexler v. Rich, 80 So. 3d 1097, 1100–01 (Fla. 4th Dist. Ct. App.
2012).
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Accordingly, Kearney is not entitled to Florida’s presumption in favor of
ownership as a tenancy by the entireties.
Neither is he entitled to have us consider extrinsic evidence of his intent to
open the account as a tenancy by the entireties. As we have noted, under Florida
law, the inquiry into the owner’s intent ends with an express designation on the
signature card. Beal Bank, 780 So. 2d at 60. Kearney’s remaining arguments all
involve the district court’s discretion to consider evidence beyond the signature
card, and they therefore fail. He argues that the confusing card layout creates a
“latent ambiguity” requiring the consideration of parol evidence, but the contract
itself is not the kind of “extraneous circumstance” or “collateral matter” that can
create a latent ambiguity under Florida law. C.f., e.g., Mac-Gray Servs., Inc. v.
Savannah Assocs. of Sarasota, LLC, 915 So. 2d 657, 659–60 (Fla. 2d Dist. Ct.
App. 2005) (fact of intervening lease renewal rendered lease addendum latently
ambiguous); Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So. 2d 544, 547
(Fla. 1st Dist. Ct. App. 1973) (history of past dealings under guaranty rendered
guaranty latently ambiguous). The district court could not have abused its
discretion to hear extrinsic evidence because it had none. It was required to stop its
inquiry after examining the signature card. Kearney’s arguments that the bank
improperly failed to offer him the option of a tenancy by the entireties and that he
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told bank employees he wanted a tenancy by the entireties are barred by the clear
evidence of the signature card.
We also affirm that the district court was not required to hold its own
evidentiary hearing before rejecting the findings of the magistrate judge because
the magistrate judge did not make any credibility findings. Cf. United States v.
Powell, 628 F.3d 1254, 1256–57 (11th Cir. 2010) (a district court abuses its
discretion when it rejects credibility findings of the magistrate judge without
conducting its own live hearing).
AFFIRMED.
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