WILLIAM WARREN MCCRARY, APPELLANT,
v.
AUGUST L. BOBENHAUSEN, APPELLEE
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McCrary purchased a half-interest in income-producing property from the Bouchers on January 28, 1976, and recorded the warranty deed the following day. A creditor of the Bouchers subsequently sued to set aside the conveyance as fraudulent under Florida's fraudulent conveyance statute, and the trial court granted summary judgment for the creditor. The appellate court reversed, holding that summary judgment was improper where the record contained conflicting material evidence regarding whether McCrary was a bona fide purchaser for value.
The court held that the summary judgment was improperly and prematurely entered because there existed conflicting material evidence in the record that precluded summary judgment. The court rejected the creditor's reliance on fraudulent conveyance principles without addressing the bona fide purchaser issue, noting that the burden of proving fraud by clear and convincing evidence rests with the party alleging fraud.
[1] A conveyance of property by a debtor is not automatically deemed fraudulent simply because a lawsuit is pending against the debtor at the time of the conveyance.
[2] The burden of proving fraud rests on the party alleging it, and the presumption is against the existence of fraud.
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Join FLexlaw to unlock all legal intelligence“Not every conveyance of property by one against whom a suit is pending is deemed fraudulent.”
Establishes that a pending lawsuit against a grantor does not automatically render a conveyance fraudulent
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Join FLexlaw to unlock all legal intelligenceWilliam Warren McCrary purchased a one-half interest in income-producing property from Charles and Teresa Boucher on January 28, 1976, and the warrant…
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PER CURIAM.
Appellant McCrary purchased, on January 28, 1976, a one-half interest in an income producing property from Charles Boucher and Teresa Boucher, his wife. The warranty deed was recorded on January 29, 1976. At the time of that transaction a law suit was pending by appellee Bobenhausen against the Bouchers. McCrary is not in a.T'y manner related to the Bouchers but is a close social acquaintance and was aware of the pending law suit. On April 29, 1976 Bobenhausen recorded a final judgment in the amount of $80,000.00 against the Bouch-ers. He then filed suit in Circuit Court seeking to set aside the warranty deed from the Bouchers to McCrary, relying upon the fraudulent conveyance statute, F.S. 726.01. Bobenhausen then moved for a summary judgment which was granted, that judgment being the subject of this appeal. There is evidence in the record, by way of affidavit, reflecting that McCrary was a bona fide purchaser for value, having paid a good and valuable consideration for the one-half interest in the property. Not every conveyance of property by one against whom a suit is pending is deemed fraudulent. As was stated in Headley et al. v. Pelham, 366 So. 2d 60 (Fla. 1st DCA 1978):
“* * * The burden is upon one alleging fraud to prove it, the presumption being against the existence of fraud. Scott v. Dansby, 334 So. 2d 331 (Fla. 1 DCA 1976). Such proof must be by clear and convincing evidence. Middleton v. Plantation Homes, 71 So. 2d 503 (Fla. 1954). Whether fraud is present in a particular transaction is to be determined by the particular facts surrounding the conveyance. Stelle v. Dennis, 104 Fla. 384, 140 So. 194 (1932). * * *”
Appellee relies upon Jackson v. Citizens’ Bank & Trust Co., 53 Fla. 265, 44 So. 516 (1907), Whetstone v. Coslick, 117 Fla. 203, 157 So. 666 (1934), and Money v. Powell, 139 So. 2d 702 (Fla. 2nd DCA 1962). Although the principles of law announced in those cases may well lend comfort to appellee were we here considering an appeal from a final judgment after trial, there is nothing in those cases to support a summary judgment entered on conflicting material evidence. The principles applicable to entry of summary judgments has been heretofore repeatedly announced by this court and no useful purpose will be accomplished by repetition here. (See, for example, Connell v. Sledge, 306 So. 2d 194 (Fla. 1st DCA 1975).)
We hold that the summary judgment here appealed was prematurely and improvidently entered.
REVERSED AND REMANDED.
McCORD, C. J., and BOYER, J., concur. MILLS, J., dissents.
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Wieczoreck v. H & H Builders, Inc., 450 So. 2d 867 (Fla. 5th DCA 1984)…he concurring opinion in Barber v. Hatch, 380 So. 2d 536 at 537 (Fla. 5th DCA 1980) (a preponderance or greater weight of the evidence standard) with Canal Authority v. Ocala Mfg. Ice & Packing Co., 332 So. 2d 321 (Fla.1976); McCrary v. Bobenhausen, 366 So. 2d 77 (Fla. 1st DCA 1978); Headley v. Pelham, 366 So. 2d 60 (Fla. 1st DCA 1978) (clear and convincing evidence standard). We hold that the preponderance of the evidence or a greater weight standard constitutes the correct and current burden of proof in a…
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H. C. Kirk et ux. v. Howard Jay Edinger et ux., 380 So. 2d 1336 (Fla. 5th DCA 1980)…whom a suit is pending can be deemed fraudulent. Whether fraud is present in a particular transaction is to be determined by the particular facts surrounding the conveyance. Stelle v. Dennis, 104 Fla. 384, 140 So. 194 (1932); McCrary v. Bobenhausen, 366 So. 2d 77 (Fla. 1st DCA 1979). We must also consider that the findings of the trial judge come to us with a presumption of correctness and will not be disturbed absent a showing that there was no competent evidence to sustain them. Turner v. Lorber, 360 So. 2…
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Stephens v. Kies OIL Co., Inc., 386 So. 2d 1289 (Fla. 3d DCA 1980)…So. 2d 386 (Fla.3d DCA 1972). Because of this question as to Stephens’ intent to defraud Kies, the pre [*1291] sumption against the existence of fraud has not been conclusively met and entry of summary judgment was premature. McCrary v. Bobenhausen, 366 So. 2d 77 (Fla. 1st DCA 1977). The summary final judgment is reversed and remanded for further proceedings.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grady Scott Connell v. Sledge, 306 So. 2d 194 (Fla. 1st DCA 1975)
- Jackson v. The Citizens Bank & Tr. Co., 53 Fla. 265 (Fla. 1907)
- Stelle v. Minna H. Dennis, 104 Fla. 384 (Fla. 1932)
- Money v. Coy C. Powell and Kathleen Powell, 139 So. 2d 702 (Fla. 2d DCA 1962)
- Middleton v. Plantation Homes, Inc., 71 So. 2d 503 (Fla. 1954)
- Whetstone v. Coslick, 117 Fla. 203 (Fla. 1934)
- Headley v. Pelham, 366 So. 2d 60 (Fla. 1st DCA 1978)
- Jimmie O. Scott (formerly Jimmie O. Gibson) v. Grace H. Dansby (formerly Grace Hopson Gibson), 334 So. 2d 331 (Fla. 1st DCA 1976)