LINDA BUCHANAN, APPELLANT,
v.
ROBERT W. SULLIVAN, JR., AND JOSEPH LANDIS, INDIVIDUALLY AND ON BEHALF OF A CLASS OF JUDGMENT CREDITORS, APPELLEES

Fla. 4th DCA | 1993-06-23
No. 92-3319
ANSTEAD and DELL, JJ., concur.
620 So. 2d 1301 Florida District Court of Appeal, Fourth District (1993) Positive Treatment
Cited by 8 cases

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Synopsis

The appellate court affirmed the trial court's finding that a father fraudulently transferred property to his daughter to avoid a judgment creditor but reversed the award of sale proceeds to the creditor, holding that the fraudulent conveyance did not sever the joint tenancy with right of survivorship.


Holding

The appellate court held that a fraudulent conveyance, even when voided, does not sever a joint tenancy with the right of survivorship, and thus the surviving joint tenant (the daughter) takes the entire property upon the death of the other joint tenant (the father).


Headnotes

[1] A temporary injunction will be reversed if the evidence presented to the trial court does not support the injunction.

[2] Evidence not presented to the trial court cannot be considered on appeal when reviewing the grant of an injunction.

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Facts & Procedural History

A father transferred property to his daughter, later creating a joint tenancy with right of survivorship. After a judgment was entered against the fat…

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Opinion of the Court
FARMER, Judge.

FARMER, Judge.

Judgment creditors armed with a final judgment from Massachusetts brought a creditor’s bill in Florida against the wife of the judgment debtor, seeking to subject certain corporate securities to execution under their judgment. They claimed that a securities account in her name with a brokerage firm in Florida contained stocks that had been owned by him but which he had transferred to her (or in her name) through other brokers in a chain of post judgment transactions. All of these transfers, they asserted, were in violation of an order of the Massachusetts court that subjected the stocks to the lien of their judgment and similarly enjoined him from effecting any transfer of them. When she moved in the creditor’s bill proceedings for an order allowing her to continue to trade in the stocks pending a final disposition, the trial court instead enjoined the broker from allowing any activity in the account except as may be necessary for medical care for her. She appeals.

The fly in the ointment is that there was absolutely no evidence actually presented to the judge establishing all of the above.1 Instead, the creditors acquired their evidence only after the hearing and supplied it to us here in a supplemental appendix with their brief. Had this evidence been before the trial judge, we should have no difficulty affirming his temporary injunction. As it is thus not part of the record on which the court granted the injunction, however, we have no choice but to reverse the injunction.

Because the subject of a bond is likely to arise again upon remand, we call the attention of the court and the parties to sections 48.23, 56.29(6)(a) and 726.108, Florida Statutes (1991). The February 11, 1990, post-judgment order of the Massachusetts judge, if genuine and continuing in effect, has apparently made the property in question subject to the lien in favor Of the judgment creditors. There seems little doubt to us that Florida would have to give full faith and credit to the order. Full faith and credit for the Massachusetts judgment may suggest that no bond can be required in Florida because none appears to have been required there.

While we thus reverse the present temporary injunction, we do so without prejudice. If after remand the judgment creditors should file and serve a proper notice of lis pendens and seek to renew the motion for the temporary injunction, the court shall consider:

(1) whether any bond may be imposed consistent with the requirement of full faith and credit;

(2) whether an injunction is proper when a notice of lis pendens has been filed;

(3) if an injunction is proper, whether it is necessary under section 48.23(2) and (3), Florida Statutes (1991), for the creditor to furnish a bond.

REVERSED AND REMANDED WITH DIRECTIONS.

ANSTEAD and DELL, JJ., concur. . At the hearing, the creditors told the judge that the necessary documentation was on its way from Massachusetts and New York. The judge should have either continued the hearing or denied the creditors' ore tenus motion, without prejudice to renew it when the necessary evidence was available.


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Citator

Cited By

  • Amjad Munim, M.D., P.A. v. George Azar, M.D., 648 So. 2d 145 (Fla. 4th DCA 1994)
    …, the burden is on the transferee to prove the transfer was not fraudulent. Treated Timber Products, Inc. v. S & A Assoc., 488 So. 2d 159 (Fla. 1st DCA 1986). Section 56.29(6) is applicable to post-final judgment transfers. See Buchanan v. Sullivan, 620 So. 2d 1301 (Fla. 4th DCA 1993). While recognizing that summary judgments are rarely countenanced in fraud cases, the uneontradicted facts in this case point to only one logical conclusion—that the transfer was fraudulent. A creditor may prove a fraudulent con…
  • Georges M. Delbrouck v. Eberling, 177 So. 3d 66 (Fla. 4th DCA 2015)
    …ith the appellant that section 733.607 does not eliminate the need to take evidence where a colorable factual issue exists over the right to possession of property, even if titled in the name of the decedent.3 See id.; see also Buchanan v. Sullivan, 620 So. 2d 1301, 1302 (Fla. 4th DCA 1993) (reversing temporary injunction because no evidence had been pre [*70] sented to the judge); Kountze v. Kountze, 20 So. 3d 428, 434 (Fla. 2d DCA 2009) (reversing, due to deficiency in pleading and proof, an order obtained b…
  • Royal Caribbean Cruises, Ltd. v. Rigby, 96 So. 3d 1146 (Fla. 3d DCA 2012)
    …te.13 Just months earlier, the trial court correctly declined to make Royal Caribbe [*1153] an financially responsible for both maintenance. and cure without proof, and ordered the issue be set for an evidentiary hearing.14 See Buchanan v. Sullivan, 620 So. 2d 1301 (Fla. 4th DCA 1993) (reversing an injunction granted without evidence); Zuckerman v. Prof'l Writers of Fla., Inc., 398 So. 2d 870 (Fla. 4th DCA 1981). Here, Rigby’s entitlement to further maintenance and cure was in dispute, and should have been tr…

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