237 So. 3d 1149
Fla. Dist. Ct. App.2018Background
- Poker Run sued Gorrin on personal guaranties and obtained a final judgment (May 26, 2009) in excess of $19 million (later amended and affirmed on appeal).
- On August 8–13, 2009, after judgment, Gorrin formed the Gorrin Family Trust and transferred his 95% membership interest in Lacross Marina, LLC (Lacross) to the Trust.
- Poker Run sought proceedings supplementary and moved for summary judgment (May 2015), arguing the transfer was presumptively fraudulent under Florida proceedings-supplementary and fraudulent-transfer statutes.
- Poker Run offered an affidavit and public records showing the timing of suit, judgment, formation of the Trust, and that Gorrin remained listed as managing member.
- Gorrin submitted an affidavit claiming the transfer was estate planning for his children (no intent to defraud) and relied on deposition testimony of the other 5% owner/manager, Beilmann, to show Gorrin did not manage Lacross.
- The trial court struck Gorrin’s affidavit as a sham, credited Poker Run, granted summary judgment finding the transfer fraudulent, and froze Lacross’s assets; the appellate court reversed and remanded.
Issues
| Issue | Poker Run's Argument | Gorrin's Argument | Held |
|---|---|---|---|
| Whether transfer is presumptively fraudulent under §56.29 (proceedings supplementary) | Transfer within ~1 year of service creates an unrebutted presumption of fraud; burden shifts to Gorrin to prove innocence | Transfer was for estate planning, not to hinder creditors; evidence raises genuine issues of intent | Reversed — genuine issues of material fact exist; summary judgment improper |
| Whether transfer is fraudulent under §726.105 (Fraudulent Transfer Act) based on badges of fraud | Multiple badges present (to insider, retention of control, concealment, suit pending, timing), creating prima facie fraud and shifting burden | Affidavit and testimony rebut badges; intent to defraud not established as a matter of law | Reversed — badges do not eliminate factual disputes about intent; trial required |
| Whether trial court properly struck Gorrin's affidavit as a sham (credibility) | Poker Run argued affidavit contradicted documentary and deposition evidence and was unreliable | Gorrin argued affidavit created a triable issue; credibility disputes should be for the factfinder | Reversed — credibility and conflicting testimony must be resolved by trier of fact, not on summary judgment |
| Remedy: whether freezing Lacross assets and broader relief were permitted vs. charging order exclusive remedy under LLC law | Trial court froze assets and preserved status quo to prevent dissipation | Gorrin argued charging order (and foreclosure procedure) under §605.0503 is the exclusive remedy for LLC membership interests; broader freeze exceeded statutory remedies | Reversed in part — freezing Lacross’s assets exceeded the scope of remedies available under Florida LLC law; charging order is the exclusive remedy absent single-member LLC exception |
Key Cases Cited
- Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) (summary judgment standard)
- Florida Bar v. Greene, 926 So. 2d 1195 (Fla. 2006) (purpose and limits of summary judgment)
- Moradiellos v. Gerelco Traffic Controls, Inc., 176 So. 3d 329 (Fla. 3d DCA 2015) (appellate review and inferences at summary judgment)
- Mejia v. Ruiz, 985 So. 2d 1109 (Fla. 2008) (use of badges of fraud to infer intent under fraudulent transfer law)
- Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45 (Fla. 2001) (discussing fraudulent transfer intent and badges of fraud)
- Stephens v. Kies Oil Co., Inc., 386 So. 2d 1289 (Fla. 3d DCA 1980) (badges of fraud create a rebuttable presumption)
- Automobile Sales, Inc. v. Federated Mut. Implement & Hardware Ins. Co., 256 So. 2d 386 (Fla. 3d DCA 1971) (fraud determination ordinarily inappropriate on summary judgment)
- Rosen v. Zoberg, 680 So. 2d 1050 (Fla. 3d DCA 1996) (reversing summary judgment on fraudulent transfer due to factual disputes)
- Abukasis v. MTM Finest, Ltd., 199 So. 3d 421 (Fla. 3d DCA 2016) (charging order or foreclosure are exclusive remedies against a member’s LLC interest)
- Olmstead v. F.T.C., 44 So. 3d 76 (Fla. 2010) (prompted statutory clarification of remedies against LLC interests)
- Amjad Munim, M.D., P.A. v. Azar, 648 So. 2d 145 (Fla. 4th DCA 1994) (affirming summary judgment where transfers were essentially to the same sole shareholder/entity)