SE Property Holdings, LLC v. Neverve LLC

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11736
____________________
SE PROPERTY HOLDINGS, LLC,
As successor by merger with Vision Bank,
Plaintiff-Appellant,
versus
RUSTON C. WELCH, et al.,
Defendants,
NEVERVE LLC,
Defendant-Appellee.
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2 Opinion of the Court 21-11736
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:18-cv-00252-TKW-MJF
____________________
Before LAGOA and BRASHER, Circuit Judges, and BOULEE, 1 District
Judge.
LAGOA, Circuit Judge:
This case presents issues of first impression to this Court re-
garding the application of the Florida Uniform Fraudulent Transfer
Act (“FUFTA”), Fla. Stat. § 726.101 et seq. In 2015, SE Property
Holdings, LLC (“SEPH”), obtained a deficiency judgment against
Neverve LLC (“Neverve”) after Neverve defaulted on loans se-
cured by a mortgage on its property. Following this judgment,
Neverve received the proceeds from an unrelated settlement. But
Neverve transferred those proceeds to attorneys representing
Neverve’s principal, David Stewart, in payment of attorney’s fees
relating to Stewart’s personal bankruptcy proceedings. SEPH then
sued Neverve based on Neverve’s allegedly fraudulent transfer of
those settlement proceeds, asserting claims under FUFTA that
sought compensatory damages, punitive damages, and attorney’s
fees, as well as asserting a claim for an equitable lien. The district
1 Honorable J. P. Boulee, United States District Judge for the Northern District
of Georgia, sitting by designation.
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21-11736 Opinion of the Court 3
court granted summary judgment in favor of Neverve, finding that
FUFTA’s “catch-all” provision, see Fla. Stat. § 726.108(1)(c)3., did
not allow for (1) an award of money damages against the trans-
feror, (2) punitive damages, or (3) attorney’s fees. The court also
granted summary judgment in favor of Neverve on SEPH’s equi-
table lien claim, as Neverve no longer possessed the settlement pro-
ceeds at issue.
Neither Florida state courts nor this Court have squarely ad-
dressed the FUFTA issues presented by this appeal. Based on the
narrow interpretation of FUFTA in Freeman v. First Union Na-
tional Bank, 865 So. 2d 1272 (Fla. 2004), however, we believe the
Florida Supreme Court would determine that FUFTA’s catch-all
provision does not allow for an award of money damages against
the transferor, an award of punitive damages, or an award of attor-
ney’s fees. Thus, the district court was correct in granting sum-
mary judgment in favor of Neverve on SEPH’s FUFTA claims.
And we conclude that the district court did not err in granting sum-
mary judgment in favor of Neverve on SEPH’s equitable lien claim.
Accordingly, for the reasons discussed below, and with the benefit
of oral argument, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case began with the failure of a real estate development
in Bay County, Florida. Neverve defaulted on loans secured by a
mortgage on the Bay County property originally given to SEPH’s
predecessor in interest. SEPH foreclosed on Neverve’s property,
and the United States District Court for the Northern District of
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4 Opinion of the Court 21-11736
Florida issued a deficiency judgment in favor of SEPH against
Neverve (who was then insolvent) for a total sum of over $19.6
million. See SE Prop. Holdings, LLC v. Neverve, No. 12-cv-292
(N.D. Fla. June 18, 2015).
In 2016, after the judgment was entered, Neverve settled a
claim against BP related to the Deepwater Horizon oil spill (the
“BP proceeds”). Neverve, however, did not turn over the BP pro-
ceeds to SEPH towards satisfaction of SEPH’s judgment. Instead,
at the direction of Neverve’s principal, David Stewart, approxi-
mately $350,000 of those proceeds were wired to Ruston C. Welch
and Welch Law Firm, P.C. (“WLF”), in Oklahoma to pay Stewart’s
personal attorney’s fees in his ongoing Chapter 7 bankruptcy case.
See In re Stewart, 970 F.3d 1255, 1260 (10th Cir. 2020).
SEPH sued Neverve, Welch, and WLF in the Northern Dis-
trict of Florida. In its amended complaint, SEPH asserted, among
other claims, three FUFTA claims (one for actual fraud and two for
constructive fraud) and an equitable lien claim against the defend-
ants, based on the transfer of the BP proceeds from WLF’s trust
account to Welch and WLF. In its FUFTA claims, SEPH sought
(1) compensatory and punitive damages, (2) attorney’s fees and
costs, (3) to set aside each fraudulent transfer and for the court to
declare them null and void, and (4) any additional relief the court
deemed proper.
Welch and WLF moved to dismiss the amended complaint
for lack of personal jurisdiction, and Neverve sought dismissal on
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the ground that Welch and WLF were indispensable parties. After
jurisdictional discovery and briefing, the district court dismissed
the claims against Welch and WLF for lack of personal jurisdic-
tion.2 Regarding Neverve’s motion, the district court found that
Welch and WLF were indispensable parties for certain relief sought
by SEPH—avoidance of the transfers and imposition of an equita-
ble lien—and granted that part of Neverve’s motion. The district
court, however, denied the motion as to SEPH’s claims for money
damages against Neverve. Neverve answered and later moved for
summary judgment on SEPH’s remaining claims.
In its order granting Neverve’s motion for summary judg-
ment, the district court explained that FUFTA’s primary remedy—
avoidance of a transfer or a money judgment against a transferee—
was unavailable to SEPH because the court lacked personal juris-
diction over indispensable parties for that remedy, Welch and
WLF. As to the other remedy sought by SEPH—an award of
money damages against the transferor, Neverve—the court found
it was unavailable under FUFTA’s “catch-all” provision in Florida
Statute § 726.108(1)(c)3., which provides that a creditor may ob-
tain, “[s]ubject to the applicable principles of equity and in accord-
ance with applicable rules of civil procedure[,] . . . [a]ny other relief
the circumstances may require.” The district court explained that
while some Florida appellate decisions suggest that an award of
money damages against the transferor is available under the catch-
2 The district court’s dismissal of Welch and WLF is not at issue in this appeal.
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all provision, those decisions pre-dated the Florida Supreme
Court’s decision in Freeman v. First Union National Bank, 865 So.
2d 1272 (Fla. 2004), or relied solely on cases that pre-dated Free-
man. That decision, the district court explained, narrowly inter-
preted the catch-all provision. Thus, the district court found that
SEPH could not obtain a separate money judgment against
Neverve under FUFTA based on the alleged fraudulent transfer of
the BP proceeds.
As to SEPH’s request for punitive damages and attorney’s
fees under FUFTA, the district court noted that there was no Flor-
ida case law addressing whether the catch-all provision authorized
an award of those types of damages and that other federal district
courts to consider the issue found that the catch-all provision did
not authorize an award of attorney’s fees. And the district court
found it “unlikely that the Florida Supreme Court would construe
the ‘catch all’ provision in FUFTA to authorize an award of puni-
tive damages or attorney’s fees against the transferor in light of its
statements in Freeman.”
Finally, as to SEPH’s equitable lien claim, the district court
explained that, for the imposition of an equitable lien under Florida
law, the property in litigation must be in the defendant’s posses-
sion. The district court then noted that it was undisputed that
Neverve was not currently in possession of the BP proceeds. So,
the district court reasoned, even if SEPH could establish the ele-
ments necessary to obtain such a lien, the court would not have the
authority to impose the lien. And the court declined to stay the
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case pending resolution of Stewart’s bankruptcy case and a case
SEPH filed against Welch and WLF in the United States District
Court for the Western District of Oklahoma.
SEPH timely appealed. 3 While SEPH filed an initial brief in
this case, Neverve did not file a brief in response. 4 We then ap-
pointed pro bono counsel as amicus curiae to defend the district
court’s judgment. 5
II. STANDARD OF REVIEW
“We review de novo the district court’s grant of a motion
for summary judgment, considering all of the evidence and the in-
ferences it may yield in the light most favorable to the nonmoving
3 After SEPH filed its notice of appeal, we issued jurisdictional questions ask-
ing: (1) whether the relevant pleadings sufficiently alleged each party’s citizen-
ship to invoke the district court’s subject matter jurisdiction in the first in-
stance; and (2) of relevance here, whether the allegations should be amended
on appeal, pursuant to 28 U.S.C. § 1653, if the jurisdictional allegations were
inadequate. In response, SEPH moved for leave to amend its amended com-
plaint on appeal. We granted SEPH leave to amend its pleadings to correct
the parties’ citizenships and deemed the pleadings, as amended, established
that the parties were diverse. SEPH then filed this second amended complaint
in the district court.
4 On December 21, 2021, we issued an order directing Neverve to file a notice
stating whether it intended to file a response brief and appear at oral argument.
Neverve’s counsel informed this Court that Neverve would not participate in
the appeal because of Neverve’s insolvency.
5 We appointed Jason T. Burnette to defend the district court’s judgment in
this appeal. We thank Mr. Burnette for accepting this appointment and for his
service to this Court.
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8 Opinion of the Court 21-11736
party.” Ellis v. England, 432 F.3d 1321, 1325 (11th Cir. 2005).
“Summary judgment is appropriate where the evidence shows
‘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.’” Id.(quoting Comer v. City of Palm Bay, 265 F.3d 1186, 1192 (11th Cir.
2001)).
“We review a district court’s legal conclusions de novo.” Id.
at 1323; accord United States v. Daniels, 685 F.3d 1237, 1244 (11th
Cir. 2012). And we review the denial of equitable relief for an abuse
of discretion. See Dresdner Bank AG v. M/V OLYMPIA
VOYAGER, 465 F.3d 1267, 1273 (11th Cir. 2006); CNA Fin. Corp.
v. Brown, 162 F.3d 1334, 1337 (11th Cir. 1998).
III. ANALYSIS
On appeal, SEPH contends that the district court erred in
holding that FUFTA’s catch-all provision does not permit: (1) an
award of money damages against a transferor; (2) an award of pu-
nitive damages; and (3) an award of attorney’s fees. SEPH further
contends that the district court erred in granting summary judg-
ment in favor of Neverve on its equitable lien claim. We address
these issues in turn.
A. SEPH’s Claims Under FUFTA
Because SEPH’s claims arise under Florida law, we apply
Florida’s substantive law. Molinos Valle Del Cibao, C. por A. v.
Lama, 633 F.3d 1330, 1348 (11th Cir. 2011) (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938)). FUFTA is such a substantive
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law. See Freeman v. First Union Nat’l, 329 F.3d 1231, 1233–34
(11th Cir. 2003). “We decide novel questions of state law ‘the way
it appears the state’s highest court would.’” Id. at 1232 (quoting
Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1290 (11th
Cir. 2001)). Because we are interpreting Florida law, we look first
for case precedent from Florida’s highest court—the Florida Su-
preme Court. Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746
F.3d 1008, 1021 (11th Cir. 2014). “Where that court has not spoken,
however, we must predict how the highest court would decide this
case.” Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018). In
making this prediction, “we are ‘bound to adhere to the decisions
of the state’s intermediate appellate courts absent some persuasive
indication that the state’s highest court would decide the issue oth-
erwise.’” Winn-Dixie, 746 F.3d at 1021 (quoting Provau v. State
Farm Mut. Auto. Ins. Co., 772 F.2d 817, 820 (11th Cir. 1985)); ac-
cord Chepstow Ltd. v. Hunt, 381 F.3d 1077, 1086 (11th Cir. 2004)
(requiring “a strong indication that the state supreme court would
decide the matter differently”). To decide whether such an indica-
tion exists, “all other data may be considered to the extent they in-
dicate how the Florida Supreme Court might rule on an issue.”
Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1133 (11th Cir.
2010).
Among such relevant data in a statutory interpretation case,
of course, includes the text of the statute itself. Under Florida law,
a court must “give effect to the legislative intent of the statute.”
Robbins v. Garrison Prop. & Cas. Ins. Co., 809 F.3d 583, 586 (11th
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Cir. 2015) (quoting Belanger v. Salvation Army, 556 F.3d 1153, 1155
(11th Cir. 2009)). But, as emphasized by the Florida Supreme
Court, to discern such legislative intent, a court looks “to the actual
language used in the statute.” Freeman, 865 So. 2d at 1276 (quoting
BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 289 (Fla.
2003)). Thus, “[w]hen the statute is clear and unambiguous, [Flor-
ida] courts will not look behind [its] plain language for legislative
intent.” Robbins, 809 F.3d at 586 (some alterations in original)
(quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla.
2005)).
To that end, the Florida Supreme Court has articulated Flor-
ida law regarding statutory interpretation as follows:
In interpreting statutory language, we of course
“begin with the language of the statute.” As we re-
cently explained, we “adhere to the ‘supremacy-of-
text principle’: ‘The words of a governing text are of
paramount concern, and what they convey, in their
context, is what the text means.’” We thus strive to
determine the text’s objective meaning through “the
application of the text to given facts on the basis of
how a reasonable reader, fully competent in the lan-
guage, would have understood the text at the time it
was issued.”
Page v. Deutsche Bank Tr. Co. Ams., 308 So. 3d 953, 958 (Fla. 2020)
(alterations adopted) (citations omitted) (first quoting Lieupo v. Si-
mon’s Trucking, Inc., 286 So. 3d 143, 145 (Fla. 2019); then quoting
Advisory Op. to Governor re Implementation of Amend. 4, the
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Voting Restoration Amend., 288 So. 3d 1070, 1078 (Fla. 2020); and
then quoting Antonin Scalia & Bryan A. Gardner, Reading Law:
The Interpretation of Legal Texts 33 (2012)). And the Florida Su-
preme Court has recently held that, because “[t]he plainness or am-
biguity of statutory language is determined by reference to the lan-
guage itself, the specific context in which the language is used, and
the broader context of the statute as a whole,” a court is to use “the
traditional canons of statutory interpretation” to “aid the interpre-
tive process from beginning to end.” Conage v. United States, 346
So.3d 594, 598 (Fla. 2022). Moreover, Florida law does not require
“interpreters to make a threshold determination of whether a term
has a ‘plain’ or ‘clear’ meaning in isolation, without considering the
statutory context and without the aid of whatever canons might
shed light on the interpretive issues in dispute.” Id.We turn to the relevant statutory provisions of FUFTA,
which are modeled after the Uniform Fraudulent Transfer Act
(“UFTA”). See Amjad Munim, M.D., P.A. v. Azar, 648 So. 2d 145,
152 (Fla. Dist. Ct. App. 1994). Florida Statute § 726.105(1), in rele-
vant part, states:
A transfer made . . . by a debtor is fraudulent as to a
creditor[] . . . if the debtor made the transfer . . . :
(a) With actual intent to hinder, delay, or defraud any
creditor of the debtor; or
(b) Without receiving a reasonably equivalent value
in exchange for the transfer . . . , and the debtor:
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1. Was engaged or was about to engage in a business
or a transaction for which the remaining assets of the
debtor were unreasonably small in relation to the
business or transaction; or
2. Intended to incur, or believed or reasonably should
have believed that he or she would incur, debts be-
yond his or her ability to pay as they became due.
Florida Statute § 726.108 provides the following creditors’
remedies under FUFTA:
(1) In an action for relief against a transfer or obliga-
tion under [§§] 726.101-726.112, a creditor, subject to
the limitations in [§] 726.109 may obtain:
(a) Avoidance of the transfer or obligation to the ex-
tent necessary to satisfy the creditor’s claim;
(b) An attachment or other provisional remedy
against the asset transferred or other property of the
transferee in accordance with applicable law;
(c) Subject to applicable principles of equity and in ac-
cordance with applicable rules of civil procedure:
1. An injunction against further disposition by the
debtor or a transferee, or both, of the asset transferred
or of other property;
2. Appointment of a receiver to take charge of the as-
set transferred or of other property of the transferee;
or
3. Any other relief the circumstances may require.
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(2) If a creditor has obtained a judgment on a claim
against the debtor, the creditor, if the court so orders,
may levy execution on the asset transferred or its pro-
ceeds.
(Emphasis added).
And Florida Statute § 726.109, which establishes certain lim-
itations to the remedies in section 726.108(1)(a), provides in rele-
vant part:
(2) Except as otherwise provided in this section, to the
extent a transfer is voidable in an action by a creditor
under [§] 726.108(1)(a), the creditor may recover
judgment for the value of the asset transferred, as ad-
justed under subsection (3), or the amount necessary
to satisfy the creditor’s claim, whichever is less. The
judgment may be entered against:
(a) The first transferee of the asset or the person for
whose benefit the transfer was made; or
(b) Any subsequent transferee other than a good faith
transferee who took for value or from any subsequent
transferee.
Id. § 726.109(2). Thus, “FUFTA provides generally that a creditor
may avoid a debtor’s fraudulent transfer to the extent necessary to
satisfy the creditor’s claim.” Isaiah v. JPMorgan Chase Bank, 960
F.3d 1296, 1302 (11th Cir. 2020).
With these statutory provisions in mind, we now turn to
SEPH’s claims.
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1. Money Judgment Against a Transferor
SEPH contends that FUFTA permits a creditor to recover a
monetary judgment against a transferor through the statute’s
“catch-all” provision in section 726.108(1)(c)3., which provides, in
relevant part, that a creditor may obtain “[a]ny other relief the cir-
cumstance may require.” Of course, SEPH already holds a mone-
tary judgment against Neverve, which is what created the creditor-
debtor relationship between the parties in the first place and gives
rise to SEPH’s claims under FUFTA. SEPH thus argues that
FUFTA authorizes it to obtain a second judgment against Neverve
for Neverve’s violation of FUFTA. In support of this argument,
SEPH cites two decisions from Florida’s intermediate appellate
courts holding that FUFTA’s catch-all provision allows a creditor
to seek an award of money damages against a transferor. See Han-
sard Constr. Corp. v. Rite Aid of Fla., Inc., 783 So. 2d 307 (Fla. Dist.
Ct. App. 2001); McCalla v. E.C. Kenyon Constr. Co., 183 So. 3d
1192 (Fla. Dist. Ct. App. 2016). But we conclude that the plain lan-
guage of the statute and the relevant Florida case law on FUFTA
amount to a “strong indication” that the Florida Supreme Court
would not find an award of money damages against the transferor
permissible under section 726.108, including its catch-all provision.
See Chepstow, 381 F.3d at 1086.
Beginning with section 726.108, the statute provides certain
remedies to a creditor bringing a claim under FUFTA. First, the
creditor can seek avoidance of the fraudulent transfer. Id.§ 726.108(1)(a). Second, the creditor can seek an attachment
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against the transferred asset (or other property of the transferee).
Id. § 726.108(1)(b). And third, the creditor can seek the following
remedies “[s]ubject to applicable principles of equity”: (1) an in-
junction against further disposition of the asset by either the debtor
or transferee; (2) appointment of a receiver with respect to the asset
(or other property of the transferee); or (3) “[a]ny other relief the
circumstances may require.” Id. § 726.108(1)(c) (emphasis added).
The only part of FUFTA that expressly addresses monetary
judgments and that is relevant here is section 726.109, which estab-
lishes certain limitations on the remedies provided for in section
726.108. Section 726.109(2) provides that, when a transfer is void-
able by a creditor under section 726.108(1)(a), the creditor may re-
cover a money judgment that may be entered against either (1)
“[t]he first transferee of the asset or the person for whose benefit
the transfer was made” or (2) “[a]ny subsequent transferee other
than a good faith transferee who took for value or from any subse-
quent transferee.”
“Under the principle of statutory construction, expressio
unius est exclusio alterius, the mention of one thing implies the ex-
clusion of another.” Young v. Progressive Se. Ins. Co., 753 So. 2d
80, 85 (Fla. 2000) (quoting Moonlit Water Apartments Inc. v.
Cauley, 666 So. 2d 898, 900 (Fla. 1996)); accord United States v.
Castro, 837 F.2d 441, 442 (11th Cir. 1988). Thus, the Florida legis-
lature’s “express inclusion of several specific remedies in [a] statute
represents an implicit exclusion of remedies not listed.” See Bishop
v. Osborn Transp., Inc., 838 F.2d 1173, 1174 (11th Cir. 1998)
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(declining to find that punitive damages were available under the
Employment Retiring Income Security Act). Critically here, sec-
tion 726.109(2) does not authorize a money judgment to be entered
against the transferor or debtor when seeking to avoid a transfer
under section 726.108(1)(a). Rather, the statute authorizes mone-
tary judgments only against transferees.
By contrast, the only remedies against a transferor or debtor
expressly authorized by section 726.108(1) are avoidance of the
transfer (which the district court found was unavailable here be-
cause it lacked personal jurisdiction over Welch and WLF) and in-
junctive relief to prevent a debtor from further dissipating the
transferred asset. Id. §§ 726.108(1)(a), 726.108(1)(c)1. Additionally,
section 726.108(2) specifically addresses the situation where “a
creditor has obtained a judgment on a claim against the debtor” 6;
the statute permits the creditor, subject to court approval, to “levy
execution on the asset transferred or its proceeds.” Thus, section
726.108’s specific authorization of only certain forms of relief
against the transferor or debtor indicates that the creditor cannot
obtain those other statutory remedies that are solely authorized
against the transferee. Cf. Young, 753 So. 2d at 85 (“By failing to
permit self-insured motorist policy exclusions in the list of author-
ized exclusions, the Legislature has further indicated its intent in
6Under FUFTA, a “[c]laim” is a “right to payment, whether or not the right is
reduced to judgment.” Fla. Stat. § 726.102(4).
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[the statute] not to permit self-insured motorist policy exclu-
sions.”).
We also conclude that the catch-all provision in section
726.108(1)(c)3. does not encompass money judgments against the
transferor for several reasons. First, the other two remedies ex-
pressly provided for by section 726.108(1)(c) are equitable reme-
dies—an injunction and the appointment of a receiver—and the
catch-all provision follows these two remedies. Florida courts ap-
ply the principle of statutory construction of ejusdem generis,
which “provides that where general words or phrases follow an
enumeration of specific words or phrases, ‘the general words are
construed as applying to the same kind or class as those that are
specifically mentioned.’” In re Advisory Op. to Att’y Gen. re Use
of Marijuana for Certain Med. Conditions, 132 So. 3d 786, 801 (Fla.
2014) (quoting Fayad v. Clarendon Nat’l Ins. Co., 899 So. 2d 1082,
1088–89 (Fla. 2005)). Thus, we construe the “general words” of the
catch-all provision as applying only to equitable remedies.
Second, our analysis of the statute’s plain text finds support
in Florida case law. Although FUFTA allows for certain limited
remedies against transferors and third-party beneficiaries of fraud-
ulent transfers, Fla. Stat. § 726.108(1)(a), (1)(c)1., (2), actions under
section 726.108 generally “are brought against a recipient or trans-
feree of assets or property, and not a transferor.” Edwards v. Air-
line Support Grp., Inc., 138 So. 3d 1209, 1211 (Fla. Dist. Ct. App.
2014) (emphasis added).
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Moreover, in Freeman v. First Union National Bank, 865 So.
2d 1272 (Fla. 2004), the Florida Supreme Court addressed the “nar-
row focus” of section 726.108(1)(c)3. In Freeman, the Florida Su-
preme Court held that “FUFTA was not intended to serve as a ve-
hicle by which a creditor may bring a suit against a non-transferee
party . . . for monetary damages arising from the non-transferee
party’s alleged aiding-abetting of a fraudulent money transfer.” 865
So. 2d at 1277. In reaching that conclusion, the court explained that
there was “no language in FUFTA that suggests an intent to create
an independent tort for damages,” and that the catch-all provision
was intended “to facilitate the use of the other remedies provided
in the statute, rather than creating new and independent causes of
action such as aider-abettor liability.” Id. at 1276–77 (emphasis
added). The court thus declined to find such a cause of action in
FUFTA’s catch-all provision in section 726.108(1)(c)3. because con-
cluding otherwise would “expand the FUFTA beyond its facial ap-
plication and in a manner that is outside the purpose and plain lan-
guage of the statute.” Id. at 1277. This was because “FUFTA was
intended to codify an existing but imprecise system whereby trans-
fers that were intended to defraud creditors could be set aside.” Id.
at 1276. And the Florida Supreme Court emphasized the “narrow
focus of the FUFTA and its limitations.” Id. at 1277.
Interpreting this case law with the plain language of the stat-
ute, we do not believe the Florida Supreme Court would find that
section 726.108(1) contemplates a remedy for a creditor to obtain a
money judgment against the transferor. Indeed, if we concluded
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21-11736 Opinion of the Court 19
otherwise, we would be creating a new cause of action under
FUFTA against the transferor, which the court cautioned against in
Freeman. We decline to, in essence, create such a new remedy
under FUFTA.
On the other hand, SEPH argues that we are bound to fol-
low two Florida district court of appeal decisions—Hansard and
McCalla—that held FUFTA’s catch-all provision permits claims for
money damages against the transferor of a fraudulent transfer. We
disagree. In Hansard, the Florida Fourth District Court of Appeal
stated that “a plaintiff may recover money damages against the
transferor under the so-called catchall provision.” 783 So. 2d at 309(emphasis in original). Hansard, however, was decided before the
Florida Supreme Court’s decision in Freeman and did not engage
fully with FUFTA’s statutory text, contrary to how the Florida Su-
preme Court construes statutory language. See Robbins, 809 F.3d
at 586. Then, in McCalla, the Florida First District Court of Appeal,
relying solely on the pre-Freeman decision of Hansard, reached the
same conclusion, stating that FUFTA authorizes awards of money
damages “against both fraudulent transferor and transferee, jointly
and severally.” 183 So. 3d at 1194. But, similar to Hansard, the
court in McCalla did not conduct an in-depth statutory analysis as
to section 726.108—the court simply quoted the statute—nor did
the case discuss the principles set forth in Freeman.
For the reasons we have explained, the text of FUFTA, cou-
pled with the reasoning in Friedman and Freeman, constitutes a
“persuasive indication” that the Florida Supreme Court would
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20 Opinion of the Court 21-11736
decide the question of whether monetary damages are available
against transferors under FUFTA’s catch-all provision contrary to
the Hansard and McCalla decisions. Winn-Dixie, 746 F.3d at 1021.
Accordingly, we conclude that the district court did not err in
granting summary judgment on this claim.
2. Punitive Damages
We next address whether FUFTA authorizes the separate re-
covery of punitive damages against a transferor under the statute’s
catch-all provision. The district court concluded that FUFTA did
not allow for recovery of punitive damages based on the Florida
Supreme Court’s decision in Freeman. SEPH contends that this
was error and that punitive damages are available under FUFTA’s
catch-all provision. The Florida Supreme Court has not addressed
this issue, nor has any Florida intermediate appellate court. There-
fore, we must decide the issue the way the Florida Supreme Court
would. Ernie Haire, 260 F.3d at 1290.
The Florida Supreme Court has stated that “a plaintiff’s right
to a claim for punitive damages is subject to the plenary authority
of the legislature.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d
1352, 1358 (Fla. 1994). And turning to the plain language of the
statute, see Levy v. Levy, 326 So. 3d 678, 681 (Fla. 2021); Freeman,
865 So. 2d at 1276, section 726.108 does not contain any language
authorizing punitive damages as a remedy available to a creditor
under FUFTA.
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21-11736 Opinion of the Court 21
As we have discussed above, section 726.108(1)(c)3., when
read in context of subsection (c)’s listed remedies, contemplates
only equitable remedies. Florida courts generally adhere to the
view that “equity will not award punitive damages unless author-
ized by statute.” See, e.g., Lanman Lithotech, Inc. v. Gurwitz, 478
So. 2d 425, 427 (Fla. Dist. Ct. App. 1985); see also Bishop, 838 F.2d
at 1174 (“Punitive damages are just that, damages, and are not or-
dinarily incorporated by the term ‘equitable relief.’”); Walker v.
Ford Motor Co., 684 F.2d 1355, 1364 (11th Cir. 1982) (explaining
that “punitive damages are legal not equitable remedies”). Addi-
tionally, the only expressly listed remedies available to a creditor
against a transferor or debtor in section 726.108 are (1) an injunc-
tion against further disposition of the transferred asset or (2) to
“levy execution on the asset transferred or its proceeds.”
We also note that it appears that punitive damages are una-
vailable to creditors with regards to those money judgments that
FUFTA expressly authorizes. Florida Statute § 726.102(4) defines
“claim” as “a right to payment, whether or not the right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or un-
secured.” In turn, when a creditor is seeking avoidance of a fraud-
ulent transfer under section 726.108(1)(a), section 726.109(2) au-
thorizes a money judgment against a transferee but limits that
judgment to “the value of the asset transferred, as adjusted under
subsection (3), or the amount necessary to satisfy the creditor’s
claim, whichever is less.” (emphasis added).
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22 Opinion of the Court 21-11736
Thus, reviewing the relevant FUFTA provisions alone, it ap-
pears that a creditor cannot obtain punitive damages against a
transferor in pursuing a claim under FUFTA. As explained before,
applying the ejusdem generis principle of statutory construction,
the “general” words of the catch-all provision in section
726.108(c)3. follows a list of specific equitable remedies, and we
construe the catch-all provisions as applying only to equitable rem-
edies. And punitive damages are not considered “equitable relief”
under Florida law. Furthermore, section 726.108 does not other-
wise authorize an award of punitive damages as a remedy against
the transferor. SEPH, however, raises section 726.111, which pro-
vides that “[u]nless displaced by the provisions of [FUFTA], the
principles of law and equity, including the law merchant and the
law relating to principal and agent, estoppel, laches, fraud, misrep-
resentation, duress, coercion, mistake, insolvency, or other validat-
ing or invalidating cause, supplement those provisions.” SEPH
then raises several authorities to argue that “[i]f a debtor commits
intentional misconduct by intentionally committing fraudulent
transfers, then, consistent with common law, punitive damages
should be available.”
For example, SEPH points to section 768.72(2), titled “Plead-
ing in civil actions; claim for punitive damages,” which provides
that a defendant can be held liable “for punitive damages only if the
trier of fact, based on clear and convincing evidence, finds that the
defendant was personally guilty of intentional misconduct or gross
negligence.” Florida Statute § 768.71 in turn states that section
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21-11736 Opinion of the Court 23
768.72 “applies to any action for damages, whether in tort or in
contract” but that “[i]f a provision of this part”—e.g., section
768.72—“is in conflict with any other provision of the Florida Stat-
utes, such other provision shall apply.”
Section 768.72, however, is not particularly helpful in our
analysis. First, SEPH cites no case where section 768.72 has been
applied to claims brought under FUFTA, although it does cite two
cases in which the Florida Supreme Court stated that punitive dam-
ages are appropriate where torts are committed with fraud. See
First Interstate Dev. Corp. v. Ablanedo, 511 So. 2d 536, 539 (Fla.
1987) (“[P]unitive damages are appropriate for any tortious con-
duct accomplished through fraud . . . .”); Winn & Lovett Grocery
Co. v. Archer, 171 So. 214, 221 (Fla. 1936) (stating that punitive
damages “are given solely as a punishment where torts are com-
mitted with fraud”). Second, we have held that section 768.72 is
procedural, not substantive, and its pleading requirements are in-
applicable to federal diversity cases. Cohen v. Office Depot, Inc.,
184 F.3d 1292, 1295–99 (11th Cir. 1999), vacated in part on other
grounds, 204 F.3d 1069 (11th Cir. 2000). Although not addressing
the precise issue before us in this case, our decision in Cohen sup-
ports the conclusion that section 768.72 does not create a substan-
tive right to punitive damages and cannot, standing on its own,
provide the basis to conclude that a creditor can seek punitive dam-
ages against a transferor under FUFTA.
SEPH also points to our decision in Alliant Tax Credit 31,
Inc v. Murphy, 924 F.3d 1134 (11th Cir. 2019), in which this Court
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24 Opinion of the Court 21-11736
held that punitive damages are authorized under Georgia’s UFTA.
Id. at 1149. In Alliant, we recognized that, under a separate Geor-
gia statute, “[a] court may award punitive damages ‘only in such
tort actions in which it is proven by clear and convincing evidence
that the defendant’s actions showed . . . fraud.’” Id. (quoting
O.C.G.A. § 51-12-5.1(b)). We also noted that Georgia courts had
repeatedly stated that “punitive damages are available in fraudu-
lent-transfer actions,” both before and after the enactment of Geor-
gia’s UFTA. See id. at 1149–50 (citing Georgia cases). Finally, we
recognized that “[o]ne policy of punitive damages is deterrence,”
as “[w]ithout punitive damages, nothing other than costs would
deter a debtor from attempting to fraudulently transfer his assets.”
Id. at 1150. We acknowledge the similarities between FUFTA and
Georgia’s UFTA. Compare Fla. Stat. § 726.108, with O.C.G.A.
§ 18-2-77. But unlike in Georgia, there is no Florida case law stating
that punitive damages are available in fraudulent-transfer actions
under FUFTA. To the contrary, the most analogous Florida case
law on the issue—Freeman—points in the opposite direction.
Although not cited by SEPH, in Ault v. Lohr, 538 So. 2d 454(Fla. 1989), the Florida Supreme Court held that “an express finding
of a breach of duty should be the critical factor in an award of pu-
nitive damages” and that, as such, “a finding of liability alone will
support an award of punitive damages ‘even in the absence of fi-
nancial loss for which compensatory damages would be appropri-
ate.’” Id. at 456 (quoting Lassiter v. Int’l Union of Operating Eng’rs,
349 So. 2d 622, 626 (Fla. 1976)). Subsequently, in Engle v. Liggett
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21-11736 Opinion of the Court 25
Group, Inc., 945 So. 2d 1246 (Fla. 2006), the court clarified that the
required finding of liability is “more than a breach of duty,” e.g.,
causation and reliance. See id. at 1262–63. But see Morgan Stanley
& Co. v. Coleman (Parent) Holdings Inc., 955 So. 2d 1124, 1132
(Fla. Dist. Ct. App. 2007) (holding, post-Engle, that “[a]ctual dam-
ages and the measure thereof are essential as a matter of law in es-
tablishing a claim of fraud” (alteration in original) (quoting Nat’l
Equip. Rental, Ltd. v. Little It. Rest. & Delicatessen, Inc., 362 So.
2d 338, 339 (Fla. Dist. Ct. App. 1978))). Furthermore, in applying
Ault to a case involving a fraud claim under Florida law, we ex-
plained that an award of punitive damages was supported by Flor-
ida law where the jury made an express finding that the defendants
had defrauded the plaintiff. See Palm Beach Atl. Coll., Inc. v. First
United Fund, Ltd., 928 F.2d 1538, 1547 (11th Cir. 1991). However,
we note that “a claim for punitive damages is not a separate, free-
standing cause of action . . . , but is rather a remedy that can be
sought based on any properly pled cause of action.” Soffer v. R.J.
Reynolds Tobacco Co., 187 So. 3d 1219, 1229 (Fla. 2016) (emphasis
added).
Here, SEPH raised one actual fraud and two constructive
fraud claims under FUFTA against Neverve. To prevail on a fraud-
ulent transfer claim under FUFTA, “a creditor must demonstrate
(1) there was a creditor to be defrauded, (2) a debtor intending
fraud, and (3) a conveyance—i.e., a ‘transfer’—of property which
could have been applicable to the payment of the debt due.” Isaiah,
960 F.3d at 1302; accord § 726.105(1)(a). And for a constructive
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26 Opinion of the Court 21-11736
fraud claim under FUFTA, the creditor must show that the transfer
was made without receiving “reasonably equivalent value in ex-
change” and that the debtor either (1) was engaged in (or about to
engage in) “a transaction for which the remaining assets of the
debtor were unreasonably small in relation to the . . . transaction”
or “[i]ntended to incur, or believed or reasonably should have be-
lieved that he or she would incur, debts beyond his or her ability to
pay as they became due.” Fla. Stat. § 726.105(1)(b).
Without FUFTA’s specific remedy provision in section
726.108, it would appear that SEPH could obtain an award of puni-
tive damages against Neverve if the factfinder found Neverve liable
for actual or constructive fraud under section 726.105(1). See Ault,
538 So. 2d at 456; Engle, 945 So. 2d at 1263; Palm Beach Atl., 928
F.2d at 1547; see also Fla. Stat. § 726.111. But FUFTA contains a
separate provision specifically enumerating a creditor’s remedies
against transferors, and as previously explained, we interpret sec-
tion 726.108(1)(c)3.’s catch-all provision—the provision which
SEPH relies on to claim it can seek punitive damages against
Neverve—to contemplate only equitable remedies, which punitive
damages are not. See Bishop, 838 F.2d at 1174.
Therefore, because the Florida Supreme Court has declined
to expand FUFTA beyond its “purpose and plain language,” and
has instead urged a “narrow focus” when interpreting FUFTA, see
Freeman, 865 So. 2d at 1277, we conclude that the Florida Supreme
Court would not find that FUFTA allows a creditor to obtain the
remedy of punitive damages against a transferor under FUFTA’s
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21-11736 Opinion of the Court 27
catch-all provision.7 Accordingly, we affirm the district court’s
grant of summary judgment as to this claim.
3. Attorney’s Fees
We next address whether a creditor, such as SEPH, may re-
cover attorney’s fees under FUFTA—another issue of first impres-
sion for this Court. The district court concluded that FUFTA did
not permit recovery of attorney’s fees, noting that another federal
district court in Florida had reached a similar conclusion. SEPH
contends that this was error, asserting that FUFTA’s catch-all pro-
vision, section 726.108(1)(c)3., and section 726.111’s supplementary
provisions permit a creditor to recover attorney’s fees under
FUFTA. Again, because neither the Florida Supreme Court nor
any Florida intermediate appellate court has addressed whether
FUFTA allows recovery for attorney’s fees, we must decide the is-
sue the way the Florida Supreme Court would. Ernie Haire, 260
F.3d at 1290.
The Florida Supreme Court has stated that attorney’s fees
incurred in defending or prosecuting a claim “are not recoverable
in the absence of a statute or contractual agreement authorizing
7 As both SEPH and the amicus recognize, there is a divide among the States
as to whether their versions of the UFTA, including the catch-all provision,
allow a creditor to recover punitive damages. Based on our analysis above
and the Florida Supreme Court’s narrow interpretation of FUFTA in Freeman,
we believe that court, if it were to consider out-of-state case law on the UFTA,
would likely find persuasive the decisions finding that punitive damages are
not recoverable under the UFTA.
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28 Opinion of the Court 21-11736
their recovery.” Price v. Tyler, 890 So. 2d 246, 250 (Fla. 2004)
(quoting Bidon v. Dep’t of Pro. Regul., 596 So. 2d 450, 452 (Fla.
1992)). In other words, the general rule under Florida law is that
each party “bears its own attorneys’ fees unless a contract or statute
provides otherwise.” Id. (quoting Pepper’s Steel & Alloys, Inc. v.
United States, 850 So. 2d 462, 465 (Fla. 2003)). And “statutory au-
thorization for attorney fees is to be strictly construed.” Sarkis v.
Allstate Ins. Co., 863 So. 2d 210, 223 (Fla. 2003).
Turning to FUFTA, section 726.108 does not contain an ex-
press fee-shifting provision. And given our interpretation of
FUFTA’s catch-all provision as only contemplating equitable rem-
edies, as well as the Florida Supreme Court’s narrow interpretation
of FUFTA, see Freeman, 865 So. 2d at 1277, and its strict construc-
tion of statutory authorization for attorney’s fees under Florida
law, see Sarkis, 863 So. 2d at 223, we conclude that the Florida Su-
preme Court would find that FUFTA does not permit the recovery
of attorney’s fees by a creditor. While SEPH points to non-Florida
case law interpreting the UFTA as allowing for the recovery of at-
torney’s fees, we do not believe the Florida Supreme Court would
find those cases persuasive given its interpretation of FUFTA and,
more broadly, the Florida Supreme Court’s adherence to the strict
construction of statutory authorization for attorney’s fees. 8
8 In any event, as amicus notes, there is a divide among state courts as to
whether their states’ versions of the UFTA contemplate recovery of attorney’s
fees. For example, Colorado courts have found that attorney’s fees are
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21-11736 Opinion of the Court 29
Accordingly, the district court did not err in granting sum-
mary judgment as to this claim.
B. SEPH’s Equitable Lien Claim
Finally, we turn to SEPH’s equitable lien claim. The district
court granted summary judgment in favor of Neverve on this
claim. Noting that it was undisputed Neverve was not in current
possession of the BP proceeds, the district court determined that
Neverve lacked the authority to impose an equitable lien on those
proceeds, even if Neverve had established the elements necessary
to obtain such a lien.
SEPH argues that the district court erred because FUFTA
allows for an injunction against a debtor that prevents the debtor
from further disposing of an asset—here, the BP proceeds. See Fla.
Stat. § 726.108(1)(c)1. We reject this argument. As an initial mat-
ter, unlike its claims for actual and constructive fraud, SEPH
waived any argument that it was entitled to equitable relief under
FUFTA—an argument it asserts for the first time on appeal. See
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004) (“This Court has ‘repeatedly held that “an issue not raised in
the district court and raised for the first time in an appeal will not
be considered by this court.”’” (quoting Walker v. Jones, 10 F.3d
1569, 1572 (11th Cir. 1994))). Moreover, Florida law’s “established
rule for imposition of an equitable lien is that the property in
unavailable under Colorado’s version of the UFTA. See Morris v. Askeland
Enters., Inc., 17 P.3d 830, 833 (Colo. App. 2000).
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30 Opinion of the Court 21-11736
litigation must be in the possession of the defendant.” Richard Ber-
tram & Co. v. Barrett, 155 So. 2d 409, 412 (Fla. Dist. Ct. App. 1963).
And it is undisputed that Welch and WLF—not Neverve—are in
possession of the BP proceeds. Therefore, the district court did not
err in granting summary judgment on SEPH’s equitable lien claim.
IV. CONCLUSION
While we do not condone the alleged conduct by Neverve,
Welch, and WLF in this case, the relief SEPH seeks against
Neverve is not permitted under FUFTA. Nor does Neverve cur-
rently possess the assets on which SEPH seeks an equitable lien.
Thus, we affirm the district court’s order granting summary judg-
ment in favor of Neverve on SEPH’s claims.
AFFIRMED.