[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-15592

________________________

D.C. No. 1:12-cv-02473-CAP

KEY EQUIPMENT FINANCE, INC.,

KEYBANK NATIONAL ASSOCIATION,

Plaintiffs-Appellees,

versus

GEORGE D. OVEREND, 

CAROL C. OVEREND,

as Trustee of the Carol C. Overend Revocable Trust,

Defendants-Appellants.

 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(November 28, 2016)

Before ED CARNES, Chief Judge, ANDERSON, Circuit Judge, and 

CHAPPELL,* District Judge.

__________ 

*Honorable Sheri Polster Chappell, United States District Judge for the Middle District of 

Florida, sitting by designation.

Case: 15-15592 Date Filed: 11/28/2016 Page: 1 of 14 
2

PER CURIAM:

Plaintiff-appellee KeyBank, N.A. (“KeyBank”)1 commenced this action 

against defendant-appellants George Overend and his wife, Carol Overend, in her 

capacity as trustee of the Carol C. Overend Revocable Trust (collectively 

“Overend”). KeyBank brought claims for breach of contract, attorney’s fees, and 

fraudulent conveyance of Overend’s interest in his home to his wife in her capacity 

as trustee. The operative facts of this appeal concern Overend’s personal guarantee 

of business loans, made by KeyBank, to finance the construction of a nowbankrupt medical imaging center (Citrus Tower) in which he and a partner were 

joint investors.

After full briefing, the district court granted partial summary judgment to 

KeyBank on the issue of Overend’s liability for breach of contract and attorney’s 

fees. The court then bifurcated the remainder of the proceedings, first holding a 

bench trial to determine damages for the breach of contract. Following the bench 

trial, the court conducted a jury trial to determine whether Overend’s transfer—of a 

one-half undivided interest in his home to his wife, as trustee of a revocable trust—

was voidable as a fraudulent conveyance under Georgia law. The conveyance was 

 1 The amended complaint was originally filed by Key Equipment Finance, Inc., which 

was then absorbed into KeyBank through merger. The district court granted a motion to 

substitute KeyBank as plaintiff in place of Key Equipment Finance.

Case: 15-15592 Date Filed: 11/28/2016 Page: 2 of 14 
3

made after Overend had incurred all of the relevant obligations, after he had signed 

multiple forbearance agreements as a result of defaulting on those obligations, and 

after Citrus Tower had petitioned for Chapter 11 bankruptcy protection.

2

The jury ultimately found for KeyBank on the fraudulent conveyance claim.

On appeal, Overend argues that the district court’s jury instruction misstated the 

applicable Georgia law and impermissibly placed the burden of proof on him, 

rather than on KeyBank as the party challenging the transfer. Having rejected each

of Overend’s other challenges on appeal, supra note 2, our opinion considers only 

this final assignment of error.

We review “jury instructions for abuse of discretion . . . as to the style and 

wording employed” and “de novo to determine whether they misstate the law or 

mislead the jury.” Gowski v. Peake, 683 F.3d 1299, 1310 (11th. Cir. 2012). 

Reversal is warranted only “if we are left with a substantial and ineradicable doubt 

 2 Overend raises a number of challenges to the district court’s decision to grant partial 

summary judgment, its determination of damages at the bench trial, and its conduct during 

opening arguments of the jury trial. For the reasons explored at oral argument, we summarily 

reject these arguments on appeal. Thus we reject Overend’s argument that Wyoming law should 

have been applied under Georgia choice-of-law provisions, thereby rendering moot his argument 

that Wyoming law—unlike Georgia law—would have recognized a cause of action for 

KeyBank’s gross negligence in disbursing the progress payments under the provisions of the 

financing documents. We also reject summarily Overend’s challenge to the district court’s 

findings at the bench trial with respect to the calculation of damages resulting from the breach of 

contract. Finally, we reject without hesitation Overend’s argument that the district court 

committed reversible error by making certain statements during opening arguments in the jury 

trial. 

Case: 15-15592 Date Filed: 11/28/2016 Page: 3 of 14 
4

as to whether the jury was properly guided in its deliberations.” Bateman v. 

Mnemonics, Inc., 79 F.3d 1532, 1543 (11th Cir. 1996).

Longstanding Georgia law provides that “when a transaction between a 

husband and wife is attacked for fraud by the creditors of either, the onus shall be 

on the husband and wife to show that the transaction was fair.” O.C.G.A. § 19-3-10

(2016). Georgia courts, interpreting this provision, have long held that “[t]he 

burden is on the husband and the wife to show that the transaction as a whole was 

free from fraud[, a]nd it is for the jury to say whether the husband and the wife 

carried their burden in this regard.” Bonner v. Smith, 247 Ga. App. 419, 420–21, 

543 S.E.2d 457, 460 (2000) (quoting Dearing v. A.R. III, Inc., 266 Ga. 301, 302, 

466 S.E.2d 565, 566 (1996)). 

In 2002, Georgia adopted the Uniform Fraudulent Transfer Act3 (“UFTA”) 

which, among other things, created a new cause of action for fraudulent 

conveyances. Importantly, the UFTA provides that “[u]nless displaced by the 

 3 We will refer, unless otherwise noted, to the operative provisions of the UFTA as they 

existed at the time the complaint was filed. We are aware that the UFTA has since been amended 

and, among other changes, is now called the Uniform Voidable Transactions Act. See 2015 Ga. 

Laws 996, § 4A (effective July 1, 2015). Some of the changes resulting from this amendment are 

arguably procedural, see Polito v. Holland, 258 Ga. 54, 55, 365 S.E.2d 273, 274 (1988) 

(“Procedural law is that law which prescribes the methods of enforcement of rights, duties, and 

obligations.”), and could ordinarily be given retroactive effect under applicable Georgia law, see

id., 365 S.E.2d at 273 (“[W]here a statute governs only procedure of the courts, including the 

rules of evidence, it is to be given retroactive effect absent an expressed contrary intention.”). 

Here, however, the Georgia General Assembly clearly expressed a contrary intention—providing 

that “[t]he amendments made by [the relevant sections] shall: (1) Apply to a transfer made or 

obligation incurred on or after July 1, 2015; [and] (2) Not apply to a transfer made or obligation 

incurred before July 1, 2015.” 2015 Ga. Laws 996, § 4A.

Case: 15-15592 Date Filed: 11/28/2016 Page: 4 of 14 
5

provisions of this article, the principles of law and equity, including the law

merchant and the law relating to principal and agent, estoppel, laches, fraud, 

misrepresentation, duress, coercion, mistake, insolvency, or other validating or 

invalidating cause, supplement its provisions.” O.C.G.A. § 18-2-82 (2016). Neither 

the UFTA nor any other subsequent act has expressly repealed section 19-3-10. 

There are three ways to establish a fraudulent transfer within the framework 

of the UFTA. The only one relevant to this appeal (on which the jury found for 

KeyBank) is by a finding that the transfer was made “[w]ith actual intent to hinder, 

delay, or defraud any creditor of the debtor.” O.C.G.A. § 18-2-74(a)(1) (2016). The 

UFTA contains a non-exhaustive list of eleven factors, which the district court 

provided to the jury, to aid in determining intent. However UFTA did not, until 

the recent non-retroactive 2015 amendments, explicitly establish a burden of proof 

or allocate it to a specific party. 

Against that legal backdrop, the district court provided the following charge 

to the jury to aid in its deliberations:

Now, in this case it’s the responsibility of KeyBank to prove 

every essential part of its claims by a preponderance of the evidence. 

This is sometimes called the burden of proof or the burden of 

persuasion. 

A preponderance of evidence simply means an amount of 

evidence that is enough to persuade you that Key’s claim is more 

likely true than not true. 

. . .

Case: 15-15592 Date Filed: 11/28/2016 Page: 5 of 14 
6

When a creditor attacks a conveyance from a husband to a wife, 

slight circumstances may be sufficient to establish the existence of 

fraud. The burden is on the husband and wife to show that the 

conveyance as a whole is free from fraud.

. . .

In determining whether Mr. Overend transferred his property 

with actual intent to delay, hinder, or defraud his creditors, you may 

consider the following factors . . . .

One, whether the transfer or obligation was to an insider. And 

any relative of Mr. Overend is considered an insider if they are related 

within the third Levitical degree, which is nephews or closer.

Whether Mr.—second, whether Mr. Overend retained 

possession or control of the property, transferred—that is, the property 

transferred after the transfer, whether he retained possession or 

control.

Three, whether Mr. Overend disclosed or concealed the 

transfer.

Four, whether, because the transfer was made, Mr. Overend had 

been sued or threatened with suit.

Five, whether the transfer was substantially all of Mr. 

Overend’s assets.

Six, whether Mr. Overend absconded.

Seven, whether he removed or concealed the assets.

Eight, whether the value of the consideration received by Mr. 

Overend was reasonably equivalent to the value of the asset 

transferred.

Nine, whether Mr. Overend was insolvent or became insolvent 

shortly after the transfer was made.

Case: 15-15592 Date Filed: 11/28/2016 Page: 6 of 14 
7

And, ten, whether the transfer occurred shortly before or shortly 

after a substantial debt was incurred.4

The jury received this instruction and, after deliberating for just over an

hour, the court recessed for the evening. The next morning, the jury submitted a 

written question to the court, which, in relevant part, asked “with whom does the 

burden of proof lie?” After discussing the appropriate response to that question

with counsel for both KeyBank and Overend outside the presence of the jury, the 

district court provided the following answer:

In this case, it’s the responsibility of KeyBank to prove every 

essential element of its claims by a preponderance of the evidence. 

And that’s sometimes called the burden of proof or burden of 

persuasion. A preponderance of the evidence simply means an amount 

of evidence that is enough to persuade you that KeyBank’s claim is 

more likely true than not true. If the proof fails to establish any 

essential part of a claim or a contention by a preponderance of the 

evidence, then you should find against KeyBank.

. . .

When a creditor attacks the conveyance from a husband to a 

wife, slight circumstances may be sufficient to establish the existence 

of a fraud. The burden is on the husband and wife to show that the 

conveyance as a whole is free from fraud.

Go back to the jury room and continue deliberations.

After receiving that “clarification” the jury deliberated for just over an hour and 

thirty minutes before finding that Overend’s conveyance to his wife, as trustee, 

 4 The UFTA actually provides eleven factors for consideration. See O.C.G.A. § 18-2-

74(b) (2016). Based on discussions during the charge conference, the district court omitted the 

eleventh.

Case: 15-15592 Date Filed: 11/28/2016 Page: 7 of 14 
8

was fraudulent. Overend timely appealed, arguing that the inclusion of the burdenshifting provision drawn from section 19-3-10 was in error.

As an initial matter, we have considerable doubt as to whether Overend 

fairly raised before the district court the argument that he finally articulated with 

any precision at all for the first time in his reply brief to this Court. Specifically, 

we are skeptical that the district court was squarely confronted with an argument 

presented on appeal, the most forceful elaboration of which comes for the first time 

in Overend’s reply brief. Overend did argue in the district court, and again in his 

initial brief on appeal, that the UFTA was all-inclusive and thus that section 19-3-

10 was old law that was displaced by the UFTA. However, his best effort to put 

this issue in front of the district court came not during the extensive discussions of 

the appropriate jury charge but, rather, during the court’s consideration of 

KeyBank’s motion for judgment as a matter of law. At that point Overend argued 

“that UFTA essentially repealed this . . . statute [section 19-3-10]” and, 

alternatively, that “[t]he UFTA covers all of this. It’s inclusive.” While this 

exchange could arguably have put the district court on notice of the general nature 

of his challenges to the jury instruction, Overend subsequently missed at least two 

clear opportunities to object to the inclusion of the burden-shifting instruction

drawn from section 19-3-10. During the initial charge conference his only explicit 

objection to the inclusion of such an instruction was that the transfer at issue here 

Case: 15-15592 Date Filed: 11/28/2016 Page: 8 of 14 
9

was between a husband and a trust, rather than between a husband and wife and 

that, therefore, the instruction was inappropriate.5 Likewise, when the court asked 

for input from counsel as to how to respond to the question from the jury 

concerning the burden of proof, Overend merely renewed his objection in blanket 

terms and never articulated the arguments he makes on appeal.6

Moreover, and significantly, Overend did not clearly articulate his most 

forceful argument until his reply brief to this Court. There, he suggests for the first 

time (albeit even then in a single paragraph and without clarity) that the UFTA is 

inconsistent with section 19-3-10 and that it was therefore impliedly repealed by 

the adoption of the Uniform Act. The full elaboration of Overend’s implicit repeal 

argument is that the UFTA is inconsistent with section 19-3-10 because the latter 

attributes burden-shifting significance to the fact that the transfer is to a spouse. By 

contrast, the UFTA makes the fact that the transfer is to an insider (including a 

spouse) merely one of eleven non-exclusive factors that the fact finder is instructed 

to consider in determining whether the transfer was made with the intent to hinder, 

 5 We note that Overend has raised a challenge on this basis once again on appeal. Like 

the district court, we have no trouble concluding that, if it survived the passage of the UFTA, 

section 19-3-10 undoubtedly applies to the transfer at issue here. The trust to which he made the 

transfer was freely revocable by his wife and, accordingly, we reject this argument.

6 Overend also argues that the statutes cannot be reconciled because section 19-3-10 requires the 

spouses to prove that the transaction was “fair,” but UFTA doesn’t discuss fairness. Rather 

section 19-3-10 uses the word “fair” in the context of a suit by a creditor against a debtor over a 

transfer of property. Fair in that context means “fair to the creditor.” And a transaction is surely 

fair to the creditor if it survives scrutiny under UFTA.

Case: 15-15592 Date Filed: 11/28/2016 Page: 9 of 14 
10

delay, or defraud creditors. However, because of the lack of timeliness and clarity 

with which Overend chose to raise this issue, it is unclear whether the arguments 

urged to this Court were ever fairly presented to the district court.

However, even assuming that the argument was properly preserved, we do 

not believe that Georgia courts would conclude that there was an implicit repeal of 

section 19-3-10 or that it was “displaced” by the terms of the UFTA. Under 

Georgia law, “[r]epeals by implication are not favored.” Chatham Cty. v. Hussey, 

267 Ga. 895, 895, 485 S.E.2d 753, 754 (1997). Implied repeals of a previously

enacted statute “never occur unless (1) the later act clearly contradicts the former 

act and their differences cannot be reconciled or (2) the most recent enactment 

appears to cover the whole law on the subject and substitutes for every prior 

general, local, and special law relating to that subject matter.” Id. The task of a 

reviewing court is to determine whether it is possible to construe the acts in pari 

materia or whether “they are so clearly and indubitably contradictory . . . they can 

not reasonably stand together.” Rutter v. Rutter, 294 Ga. 1, 3, 749 S.E.2d 657, 

658–59 (2013) (quoting Sutton v. Garmon, 245 Ga. 685, 687, 266 S.E.2d 497, 

498–99 (1980)).

As an initial matter, nothing in the UFTA clearly contradicts the provisions 

of section 19-3-10. We conclude that a Georgia court would read them in pari 

Case: 15-15592 Date Filed: 11/28/2016 Page: 10 of 14 
11

materia. Not until its non-retroactive7 amendment in 2015 did Georgia’s UFTA 

contain any provision concerning the burden of proof. Thus, the version of the 

Uniform Act in effect at all times relevant to this appeal did not clearly contradict 

section 19-3-10’s allocation of the burden of proof in the context of spousal 

transfers. Moreover, we believe that Georgia courts would reconcile the provisions 

of the two statutes. The special context of a spousal transfer might well have been 

intended to require greater scrutiny than allegedly fraudulent transfers in other 

contexts, even to insiders other than a spouse. After all, it is a well-settled rule of 

statutory construction that “a specific statute will prevail over a general statute, 

absent any indication of a contrary legislative intent.” State v. Nankervis, 295 Ga. 

406, 409, 761 S.E.2d 1, 4 (Ga. 2014) (quotation marks omitted). So even if the 

general rule under UFTA is that the plaintiff bears the burden of proving that a 

transaction is voidable by a preponderance of the evidence, we believe Georgia 

courts would conclude that section 19-3-10’s specific rule displaces that general 

rule in the context of spousal transfers. Additionally, the other ten factors that 

Georgia’s UFTA sets out at section 18-2-74(b) – factors that are to be considered 

in determining whether a challenged transfer was made with actual intent to hinder, 

delay, or defraud creditors – can readily be considered in conjunction with the

 7 See supra note 3. 

Case: 15-15592 Date Filed: 11/28/2016 Page: 11 of 14 
12

burden of proof provided for by section 19-3-10 in the context of a spousal 

transfer.

As to Overend’s contention that Georgia’s UFTA is “comprehensive” or 

“inclusive” such that we should find an implied repeal because the statutory 

framework appears to cover the whole law on the subject, we are unpersuaded. 

Quite the opposite, the express terms of the UFTA provide that existing “principles 

of law and equity . . . supplement its provisions.” O.C.G.A. § 18-2-82 (2016) 

(emphasis added). Moreover, a recent addition to the Code section under which 

this cause of action arises, section 18-2-74, undermines Overend’s argument that 

the UFTA is comprehensive and implicitly repeals older statutes involving 

fraudulent transfer claims. In the same 2015 legislation that added the burden of 

proof provision to the UFTA, the Georgia General Assembly added section 18-2-

74(c), which expressly provides for the assignment of a fraudulent transfer claim to

a successor or assignee of the original creditor. This provision was added precisely 

to avoid the application of an older Georgia statute, section 44-12-24, which 

provides that a cause of action for personal torts, including fraud on the assignor, 

cannot be assigned. The Georgia Assembly apparently did not believe that the 

comprehensive nature of the UFTA constituted an implicit rejection of the older 

statute’s application to claims arising under the new Uniform Act. Rather, the 

General Assembly in 2015 deemed it necessary to enact a provision expressly 

Case: 15-15592 Date Filed: 11/28/2016 Page: 12 of 14 
13

prohibiting application of section 44-12-24 in the context of fraudulent transfer 

claims. Indeed, the Georgia courts have so held. See RES-GA Hightower, LLC v. 

Golshani, 334 Ga. App. 176, 778 S.E.2d 805 (2015). 

Golshani involved a suit brought by an assignee of the original creditor 

seeking to set aside as fraudulent a 2009 conveyance. The sole issue under 

consideration was whether the cases holding that section 44-12-24 makes causes of 

action challenging fraudulent transfers non-assignable had been superseded by the 

UFTA. The Georgia court noted that section 44-12-24 had been enacted before the 

UFTA’s passage in 2002. Relying upon the express provision that existing 

“principles of law and equity . . . supplement” the provisions of the UFTA, the 

court held that the Uniform Act did not displace the prior law making such causes 

of action non-assignable. Id. at 179, 778 S.E.2d at 808. Indeed, the court noted the 

2015 amendment to the UFTA—including the addition of section 18-2-74(c) 

permitting the assignment of a fraudulent transfer claim to a successor or assignee 

of the original creditor—was expressly applicable only to transfers made on or 

after July 1, 2015. The court held: “We must presume that the legislative addition 

of the language to the statute was intended to make some change in the existing 

law.” Id. at 181, 778 S.E.2d at 809. Specifically, the court reasoned:

Given . . . the addition of previously non-existent language in the 

statute [i.e. section 18-2-74(c)] we must presume that the 2015 

amendments were intended to change the law, and since the 

amendments specifically allowed assignees and successors to pursue 

Case: 15-15592 Date Filed: 11/28/2016 Page: 13 of 14 
14

fraudulent transfer claims, it follows that under the previous version 

of the UFTA, such assignments were not allowed.

Id.; accord Merrill Ranch Props., LLC v. Austell, 336 Ga. App. 722, 732–33, 784 

S.E.2d 125, 133 (2016). Thus, the Georgia courts have at least implicitly rejected 

Overend’s argument that the UFTA is sufficiently comprehensive such that 

previous statutes involving fraudulent transfer claims were implicitly repealed.

Accordingly, where the differences, if any, between two legislative 

enactments are readily reconciled and where the later enactment was not designed 

to occupy the field of fraudulent transfers, we will not find an implicit repeal of 

section 19-3-10 in contravention of established Georgia law. For these reasons we 

cannot conclude that the district court committed reversible error with respect to 

the challenged jury instruction. The judgment of the district court is affirmed in all 

respects.

AFFIRMED.

Case: 15-15592 Date Filed: 11/28/2016 Page: 14 of 14