# Third District Court of Appeal

State of Florida

Opinion filed January 31, 2018

. Not final until disposition of timely filed motion for rehearing.

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No. 3D16-1426

Lower Tribunal No. 08-36794

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### Alvaro Gorrin Jr.

, Appellant,

vs.



### Poker Run Acquisitions, Inc.

,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Jennifer Bailey

, Judge.

Law Offices Mendez & Mendez, P.A.

, and Sergio L. Mendez and Daniel J.

Mendez, for appellant.

Carlton Fields Jorden Burt, P.A.

, and Jose A. Loredo and Steven M.

Blickensderfer, for appellee.

Before LOGUE, SCALES and LINDSEY, JJ.

LINDSEY, J.This case involves proceedings supplementary between a creditor and a

debtor following the entry of a final judgment for breach of personal guaranties

securing a commercial debt. The Debtor, Alvaro Gorrin, Jr. (“Gorrin”), appeals

the final summary judgment entered on June 16, 2015, granting the Creditor’s,

Poker Run Acquisitions, Inc.’s (“Poker Run”), motion for summary judgment and

the order denying rehearing entered on May 19, 2016. Because genuine issues of

material fact remain in dispute, we reverse.

FACTUAL AND PROCEDURAL HISTORY

This case originates out of a lawsuit which sought to collect on guaranties

executed by Gorrin as part of a loan, originally made by Ocean Bank, for the

purpose of financing two condominium conversion projects. Poker Run purchased

the loan package from Ocean Bank. In 2008, Poker Run filed suit on the

guaranties, out of which these proceedings supplementary arose. On May 26,

2009, the trial court granted Poker Run final summary judgment against Gorrin for

breach of the personal guaranties, awarding Poker Run over $19 million. At that

time, Gorrin held a 95% interest in Lacross Marina LLC (“Lacross”). 1 On August

8, 2009, Gorrin created the Gorrin Family Trust (“the Trust”), wherein he named

his mother and brother as trustees and his wife and children as beneficiaries, and

1 Throughout the record, both Poker Run and Gorrin, use the terms Lacross

Marina, LLC and Lacross Marina intermittently and interchangeably. Thus, for

purposes of this appeal, we refer to both as “Lacross.”

2transferred to the trust his 95% ownership interest in Lacross. It is this transfer that

brings this case back to this Court for yet the fourth time. 2

In January of 2014, Poker Run resumed discovery in aid of execution and

proceedings supplementary seeking to undo the August 8, 2009 transfer of

Gorrin’s ownership interest in Lacross. On May 5, 2015, Poker Run moved for

summary judgment contending there were no genuine issues of material fact and

that an unrebutted presumption was created that the transfer was fraudulent by

operation of sections 56.29(6)(a) 3 and 726.105(1)(a), (2), Florida Statutes (2015).

In support, Poker Run submitted an affidavit by its President, R. Ford

MacConnell (“MacConnell”). In his affidavit, MacConnell stated that suit was

filed on June 28, 2008 and summary judgment was entered against Gorrin on May

26, 2009. MacConnell further stated that on August 8, 2009, the Trust was

formed; that Gorrin owned a 95% interest in Lacross; and that Gorrin transferred

that interest to the Trust on August 13, 2009. He also stated the Public Records

revealed that Gorrin remained the managing member of Lacross and referenced a

2 Subsequent to the trial court’s entry of final summary judgment in favor of Poker

run in May of 2009, three appeals have been taken to this court. Eventually an

amended final judgment was entered, and affirmed on appeal, awarding Poker Run

the sum of $30,948,103.23. Gorrin v. Poker Run Acquisitions, Inc.

, 77 So. 3d 739

(Fla. 3d DCA 2011); Gorrin v. Poker Run Acquisitions, Inc.

, 137 So. 3d 1102 (Fla.

3d DCA 2014); Gorrin v. Poker Run Acquisitions, Inc.

, 163 So. 3d 1207 (Fla. 3d

DCA 2015).

3 Section 56.29(6)(a) was the version in effect in 2015. That same subsection was

renumbered as subsection 56.29(3)(a) in 2016. However, subsections 56.29(3)(a)

and 56.29(6)(3) do not materially differ.

3printout from the Florida Secretary of State Division of Corporations that was

attached as an exhibit. 4

In response, Gorrin contended there remained genuine issues of material fact

with regard to whether he transferred his interest in Lacross to the Trust with the

actual intent to hinder, delay, or defraud creditors. In support, Gorrin submitted his

own affidavit and the deposition transcript of Ricardo Beilmann (“Beilmann”), the

owner of the remaining 5% interest in Lacross

. 5 In his affidavit, Gorrin stated that

he retained the services of an attorney to set up the Trust for the benefit of his

children for estate planning purposes pursuant to a promise he had made to his

wife. Gorrin also stated he was not aware that he had any legal restriction from

doing so at the time of the transfer, he did not make this transfer to delay, hinder or

defraud any creditor, and he never sought to conceal the transfer.

Further, Gorrin stated he has never managed Lacross, that it has been

primarily managed by Beilmann, and he has never worked at the business nor

operated it. In addition to his affidavit, Gorrin relied on the deposition testimony

of Beilmann wherein Beilmann testified that he was the manager of Lacross and

4 Poker Run also submitted the deposition transcript of Maria Gonzalez de Gorrin

taken on March 6, 2014, but then told the trial court at the summary judgment

hearing on June 9, 2015 that it need not be considered.

5 Also, a t the summary judgment hearing, the trial court directed Gorrin to file the

original Articles of Incorporation and Operating Agreement for Lacross Marina,

LLC (the “LLC Documents”). However, at the time of entry of the order on

summary judgment, the trial court had before it only the amended LLC Documents

that were created and executed at the time of the transfer at issue.

4that his responsibilities included fueling boats, making bank deposits, writing

checks making a monthly budget, deciding whether to spend money on the marina

and other financial decisions.

However, in its June 16, 2015 order granting final summary judgment, the

trial court found Beilmann’s deposition testimony unreliable, as he was unable to

answer other specific questions about the company’s finances and corporate

structure. The trial court further found that Gorrin’s statement in his affidavit that

the transfer was made for estate planning purposes “fails to establish innocence of

motive because by transferring the asset as a matter of estate planning it shields the

asset from collection by creditors.”

In addition to rejecting Gorrin’s estate planning explanation as the reason for

the transfer, the trial court also found Gorrin’s statement

– that he has never

managed Lacross

– to be contradicted by Gorrin’s own documents and Beilmann’s

deposition. Alternatively, the trial court’s order found that if Gorrin’s affidavit is

valid, the transfer of his 95% interest to the Trust was void, as the consent of the

managing member was required by Lacross’s Operating Agreement. Likewise, the

trial court reasoned, if Gorrin was the managing member and the transfer was

valid, then his affidavit filed in opposition to summary judgment is false. Based on

these findings, the trial court struck Gorrin’s affidavit as a sham.

5In consideration of the foregoing, the trial court granted final summary

judgment finding there were no genuine issues of material fact with regard to

whether Gorrin’s transfer of his 95% interest in Lacross was fraudulent under

Florida law

. The trial court also granted a charging lien in favor of Poker Run

against Gorrin’s interest in Lacross, ordered that the status quo be preserved as to

all assets of Lacross, ordered that no distributions be made to Gorrin or the Trust,

and required the surrender of all of Gorrin’s economic interests in Lacross.

In addition, the trial court reserved jurisdiction to order the sheriff to levy

upon a determination that Lacross had no managing member at the time of the

order and is subject to dissolution. Gorrin moved for rehearing and the trial court

entered an order on May 19, 2016 granting in part and denying in part the motion.

This order amended the final summary judgement by striking the provision that

stated that upon request of Poker Run, the court will determine whether Lacross is

a shell with no actual governing members, in which case it may be subject to

dissolution. This appeal follows.

STANDARD OF REVIEW

“Summary judgment is proper if there is no genuine issue of material fact

and if the moving party is entitled to a judgment as a matter of law.” Volusia Cty.

v. Aberdeen at Ormond Beach, L.P.

, 760 So. 2d 126, 130 (Fla. 2000). It “is

designed to test the sufficiency of the evidence to determine if there is sufficient

6evidence at issue to justify a trial or formal hearing on the issues raised in the

pleadings.” Florida Bar v. Greene

, 926 So. 2d 1195, 1200 (Fla. 2006). Because

summary judgment tests the sufficiency of the evidence to justify a trial, it “is

proper only if, taking the evidence and inferences in the light most favorable to the

non-moving party, and assuming the jury would resolve all such factual disputes

and inferences favorably to the non-moving party, the non-moving party still could

not prevail at trial as a matter of law.” Moradiellos v. Gerelco Traffic Controls,

Inc.

, 176 So. 3d 329, 334-35 (Fla. 3d DCA 2015).

“But a motion for summary judgment is not a trial by affidavit or deposition.

Summary judgment is not intended to weigh and resolve genuine issues of material

fact, but only identify whether such issues exist. If there is disputed evidence on a

material issue of fact, summary judgment must be denied and the issue submitted

to the trier of fact.” Perez-Gurri Corp. v. McLeod

, 42 Fla. L. Weekly D2487 (Fla.

3d DCA Nov. 22, 2017). “At both the trial and appellate level, all evidence and

inferences from the evidence must be taken in the light most favorable to the nonmoving party.” Moradiellos

, 176 So. 3d at 334. This Court reviews de novo a trial

court's ruling on a motion for summary judgment. Aberdeen at Ormond Beach,

L.P.

, 760 So. 2d at 130.

7ANALYSIS

In support of the fraudulent transfer claim, Poker Run relies on two separate

statutory theories of recovery, raised with particularity, in its motion for summary

judgment. The first theory is based on a presumption of fraud under the

Proceedings Supplementary Statute. Section 56.29(6)(a) provides:

When, within 1 year before the service of process on him

or her, defendant has had title to, or paid the purchase

price of, any personal property to which the defendant’s

spouse, any relative, or any person on confidential terms

with defendant claims title and right of possession at the

time of examination, the defendant has the burden of

proof to establish that such transfer or gift from him or

her was not made to delay, hinder, or defraud creditors.

§ 56.29(6)(a). P oker Run’s second theory is based on a presumption of fraud

under section 726.105(1)(a) of the Fraudulent Transfer Act which provides :

A transfer made or obligation incurred by a debtor is

fraudulent as to a creditor, whether the creditor’s claim

arose before or after the transfer was made or the

obligation was incurred, if the debtor made the transfer or

incurred the obligation: With actual intent to hinder,

delay, or defraud any creditor of the debtor.

§ 716.105(1)(a) (emphasis added).

“ Proof of fraud requires proof of intent. Obviously, in these situations, the

parties will not readily admit to being instruments of fraud. Therefore, ‘because of

the difficulty of proving actual intent to defraud creditors, section 726.105(2)

provides that fraudulent intent may be presumed from evidence of badges of

8fraud.’” Mejia v. Ruiz

, 985 So. 2d 1109, 1113 (quoting Beal Bank SSB v. Almand

& Assocs.

, 780 So. 2d 45, 60 (Fla. 2001)). The language of section 726.105(2)

provides as follows:

In determining actual intent under paragraph (1)(a),

consideration may be given, among other factors, to

whether:

(a) The transfer or obligation was to an insider.

(b) The debtor retained possession or control of the

property transferred after the transfer.

(c) The transfer or obligation was disclosed or

concealed.

(d) Before the transfer was made or obligation was

incurred, the debtor had been sued or threatened with

suit.

. . . (g) The debtor removed or concealed assets.

. . . (j) The transfer occurred shortly before or shortly after

a substantial debt was incurred.

§ 726.105(2).

In its motion for summary judgment, Poker Run asserted that Gorrin’s

actions met all the above factors as: a) Gorrin transferred the assets for his family’s

benefit ; b) Gorrin retained his manager status after the transfer; c) the transfer was

concealed using the Trust as a vehicle ; d) Gorrin was sued one year and two

months before the transfer; g) Gorrin used the Trust to disguise and conceal assets ;

and j) the transfer occurred both before and after Gorrin incurred a substantial debt.

Poker Run further asserted it established a prima facie case of a fraudulent transfer

and that the burden of proof shifted to Gorrin to prove the transfer was not

9fraudulent. Stephens v. Kies Oil Co., Inc.

, 386 So. 2d 1289, 1290 (Fla. 3d DCA

1980) (citation omitted) (“These badges of fraud create a prima facie case and raise

a rebuttable presumption that the sale was void.”).

“The proof required to show that a transfer is fraudulent is the

preponderance of the evidence standard.” Mejia

, 985 So. 2d at 1113 (citation

omitted); see also Wieczoreck v. H & H Builders, Inc.

, 475 So. 2d 227, 228 (Fla.

1985). “Ordinarily, the issue of fraud is not a proper subject of a summary

judgment. Fraud is a subtle thing, requiring a full explanation of the facts and

circumstances of the alleged wrong to determine if they collectively constitute a

fraud.” Automobile Sales, Inc. v. Federated Mut. Implement & Hardware Ins. Co.

,

256 So. 2d 386, 386 (Fla. 3d DCA 1972) (citations omitted) (reversing the granting

of summary judgment).

Summary judgment is rarely granted in fraudulent transfer cases, as the

determination of intent often presents a genuine issue of material fact. See Rosen

v. Zoberg

, 680 So. 2d 1050, 1051 (Fla. 3d DCA 1996) (reversing summary

judgment because genuine issues of material fact remain unresolved as to whether

the defendants acted with fraudulent intent), overruled on other grounds by

Friedman v. Heart Inst. of Port St. Lucie, Inc.

, 863 So. 2d 189 (Fla. 2003); Yaralli

v. Am. Reprographics Co., LLC

, 165 So. 3d 785, 789 (Fla. 4th DCA 2015)

(reversing the granting of summary judgment on the fraudulent transfer count); cf.

10Amjad Munim, M.D., P.A. v. Azar

, 648 So. 2d 145, 153 (Fla. 4th DCA 1994)

(summary judgment affirmed where the sole shareholder of a judgment debtor

simply transferred the assets of one P.A., in which he was the sole shareholder, to

another P.A., in which he was the sole shareholder, without consideration and

within days of the entry of a substantial judgment against the judgment debtor).

“While a single badge of fraud may amount only to a suspicious

circumstance, a combination of badges will justify a finding of fraud.” Mejia

, 985

So. 2d at 1113 (citation omitted). This consideration must be balanced against the

principle that “[s]ummary judgment is available in fraud cases only in

extraordinary circumstances.” Stephens

, 386 So. 2d at 1290 (citing Automobile

Sales, Inc.

, 256 So. 2d 386 (finding that the entry of summary judgment was

premature when debtor’s evidence showing motivation to sell his business tended

to rebut the presumption of fraud creating an issue to be resolved by the trier of

fact).

Here, the trial court found that Gorrin’s affidavit was a fraud and struck it as

a sham based on the deposition testimony of Beilmann and the LLC Documents.

However, on a motion for summary judgment, it is well-established that the trial

court may not adjudge the credibility of witnesses or weigh the evidence.

Hernandez v. United Auto. Ins. Co.

, 730 So. 2d 344, 345 (Fla. 3d DCA 1999). If

believed by the trier of fact, Gorrin’s evidence that the transfer was made for estate

11planning purposes, pursuant to a promise that he had made to his wife and without

the intent to defraud any creditor, could rebut the presumption of fraud. Because

the summary judgment evidence presents a genuine issue of material fact

–

whether Gorrin’s transfer of his 95% ownership interest in Lacross to the Trust was

fraudulently made with the intent to protect Gorrin’s assets from execution

– the

trial court erred in granting summary judgment. Also, to the extent that there exist

conflicts in Beilmann’s deposition testimony, the resolution of those conflicts,

likewise, should be left for the trier of fact. 6

Alternatively, Gorrin asserts that in the event the final summary judgment

against Gorrin is upheld, a charging order against Gorrin’s membership interest in

Lacross is Poker Run’s sole and exclusive remedy as Lacross is a multiple member

LLC. See § 605.0503, Fla. Stat. (2015). 7 Relying on Olmstead v. F.T.C.

, 44 So.

6 In addition to accepting the statutory theories of recovery raised by Poker Run,

the trial court found that the transfer was void under the LLC Documents.

However, this theory of recovery could not form the basis for summary judgment

in favor of Poker Run because it was not raised by Poker Run in its motion. See

Williams v. Bank of America Corp.

, 927 So. 2d 1091, 1093 (Fla. 4th DCA 2006)

(reversing the entry of summary judgment on a ground not raised with

particularity, as required by Florida Rule of Civil Procedure 1.510(c), in the

motion).

7 Section 605.0503(1) provides: “On application to a court of competent

jurisdiction by a judgement creditor of a member or a transferee, the court may

enter a charging order against the transferable interest of the member or transferee

for payment of the unsatisfied amount of the judgment with interest. Except as

provided in subsection (5) [applicable to single member LLCs], a charging order

constitutes a lien upon a judgment debtor’s transferable interest and requires the

limited liability company to pay over to the judgment creditor a distribution that

would otherwise be paid to the judgment debtor.”

123d 76 (Fla. 2010), Gorrin contends that the lower court’s ruling which maintains

the status quo as to all assets of Lacross is effectively a permanent injunction

against Lacross and beyond that allowed by section 605.0503. We agree.

In Abukasis v. MTM Finest, Ltd.

, 199 So. 3d 421 (Fla. 3d DCA 2016),

Eliahu Abukasis appealed a post-judgment order, entered pursuant to sections

605.0503(7)(b), (c) and 726.108(1)(c)(3), Florida Statutes, transferring his

membership interest in an LLC toward the satisfaction of a money judgment held

against him by MTM Finest, Ltd. This Court reversed the trial court’s order

“finding no authority for an order directly transferring an interest in a property to a

judgment creditor in partial or full satisfaction of a money judgment.” Abukasis

,

199 So. 3d at 422. In so doing, this Court cited to Regions Bank v. Hyman

, which

explained that amendments to former section 605.0503, previously numbered

608.433, were brought on by Olmstead

, 44 So. 3d 76, “to clarify the exclusive

remedies available to a judgment creditor as to a judgement debtor’s interest in an

LLC: a charging order or a charging order followed by a foreclosure sale.”

Regions Bank v. Hyman

, 2015 U.S. Dist. LEXIS 55011, at *7 (M.D. Fla. Apr. 27,

2015); see Abukasis

, 199 So. 3d at 423. This Court further stated that “[t]he

attempted application of section 725.108, Florida Statutes, the fraudulent transfer

statute, is similarly flawed.” Abukasis

, 199 So. 3d at 423. Therefore, the trial

13court’s order freezing the assets of Lacross exceeded the scope of that allowed

under section 605.0503.

CONCLUSION

Because there are genuine issues of material fact as to whether Gorrin’s

transfer of his 95% interest in Lacross to the Trust was fraudulent and because the

freezing of the assets of Lacross exceeded the scope of available remedies under

Florida law, we reverse the final summary judgment granted in favor of Poker Run

and against Gorrin and remand for further proceedings consistent herewith.

REVERSED AND REMANDED.

14