183 So. 3d 1192
Fla. Dist. Ct. App.2016Background
- McCalla and wife sued Kenyon Construction Co. for contract/warranty breaches and DTUPA; they won a judgment for $627,657.48 against Kenyon.
- Kenyon allegedly transferred assets to Herring and Young before judgment, leaving McCallas unable to collect.
- McCallas asserted fraudulent transfers under Florida Statutes 726.105–726.108 to reach value of the judgment.
- Trial court held that 726.108 authorizes only equitable relief, not monetary damages, and allowed certain setoffs.
- Court of Appeal de novo review held 726.108 permits money damages; addressed offsets including Amerisure settlement and malpractice settlement.
- Court reversed and remanded, holding the setoff against malpractice settlement improper and explaining party-intent governs releases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §726.108 authorize money damages? | McCalla argued §726.108(1)(c)(3) allows monetary relief against transferor or transferee. | Kenyon contends §726.108 limits relief to injunction/receivership, not money damages. | Yes; §726.108 authorizes monetary relief. |
| Is setoff permitted against a fraudulent transfer judgment for settlements with nonjoint tortfeasors? | McCalla claims settlement funds from other defendants may offset the judgment. | Kenyon asserts any settlement should reduce the total recovery. | Setoffs against nonjointly liable settlees are not permitted; carve-out applies only to joint and several liability contexts. |
| Are Greene and law firms joint and severally liable with Kenyon for setoff purposes? | Damages in malpractice action may overlap but are not co-extensive; settlement allocations matter. | Settlements should extinguish corresponding liability; all claims against settling parties should offset. | Not jointly and severally liable; setoff against malpractice settlement improper. |
| Did the settlement allocation in the Amerisure action affect the fraudulent transfer judgment? | Some offsets from Amerisure credit should reduce the judgment payable by Kenyon. | Offset allocation to Herring/Young was appropriate; McCallas’ Amerisure settlement credit was properly applied. | Amerisure offset to Herring/Young affirmed; inappropriate to extend to malpractice settlement. |
Key Cases Cited
- Hansard Constr. Corp. v. Rite Aid of Fla., Inc., 783 So. 2d 307 (Fla. 4th DCA 2001) (money damages available under §726.108(1)(c)(3))
- Yusem v. S. Fla. Water Mgmt. Dist., 770 So. 2d 746 (Fla. 4th DCA 2000) (fraudulent conveyance as creditor's remedy)
- Moody v. Lawnwood Med. Ctr., Inc., 125 So. 3d 246 (Fla. 4th DCA 2013) (allocation of settlement in multi-defendant context)
- D’Angelo v. Fitzmaurice, 863 So. 2d 311 (Fla. 2003) (setoffs require multiple defendants jointly and severally liable)
- Gouty v. Schnepel, 795 So. 2d 959 (Fla. 2001) (windfall considerations in setoffs; joint liability framework)
- Wells v. Tallahassee Mem. Regional Med. Ctr., Inc., 659 So. 2d 249 (Fla. 1995) (settlement dollars extinguish a settling tortfeasor's liability only)
- Nauman v. Eason, 572 So. 2d 982 (Fla. 1st DCA 1990) (contemporaneous intent governs settlements; allocation matters)
- Stephen Bodzo Realty, Inc. v. Willits Int’l Corp., 428 So. 2d 225 (Fla. 1983) (intent of releases controls; releasing one may not release all)
- Osheroff v. Rauch Weaver Millsaps & Co., 882 So. 2d 503 (Fla. 4th DCA 2004) (damages may overlap across theories but are not co-extensive)
- Stephen Bodzo Realty, Inc. v. Willits Int’l Corp., 428 So.2d 225 (Fla. 1983) (release intent and joint liability)