[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT 22, 2008
No. 07-15596
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 06-00562 CV-T-27-TGW
BRIAN DOWLING,
Plaintiff-Appellee,
versus
MICHAEL E. DAVIS,
EMILY SEIBEL,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 22, 2008)
Before ANDERSON, BARKETT and COX, Circuit Judges.
PER CURIAM:
Michael E. Davis and Emily Seibel appeal, presenting two issues. First, they
contend that the district court erred in entering a money judgment against Seibel.
Second, they contend that they are at risk for duplicative liability because it is unclear
whether payments on the prior judgments against Davis should be credited to the
judgment against Seibel in this case. We address each issue in turn.
A. THE MONEY JUDGMENT
The first issue on appeal is whether Florida law permits a money judgment
against a transferee under the circumstances of this case. Section 726.109(2)(a) of
the Florida Statutes provides in relevant part as follows:
(2) Except as otherwise provided in this section, to the extent a transfer
is voidable in an action by a creditor under § 726.108(1)(2), the creditor
may recover judgment for the value of the asset transferred . . . , or the
amount necessary to satisfy the creditor’s claim, whichever is less. The
judgment may be entered against:
(a) The first transferree of the asset . . .
Fla. Stat. Ann. § 726.109(2)(a) (West 2000) (emphasis added). Defendants argue that
the condition precedent)“to the extent a transfer is voidable . . .”)was not satisfied
in this case, and thus the judgment against transferee Seibel is precluded. Defendants
argue that the condition was not satisfied because the funds in the tenancy by the
entirety were used three days later to purchase a constitutionally protected homestead.
We reject Defendants’ argument. The flaw in Defendants’ argument is that the
condition precedent in the statute is that the transfer be voidable, not that the
transferred funds must have been actually avoided. Under the plain meaning of the
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Florida statute, it is clear that the issue is whether the transfer into the tenancy by the
entirety was “voidable”)i.e., whether it could have been avoided at that time. As the
district court explained in this case, the transfer of funds into the tenancy by the
entirety was voidable as a fraudulent transfer.1 We note that the initial transfer into
the tenancy by the entirety is a different transfer than the transfer of funds out of that
account to purchase the homestead three days later. The mere fact that the latter
transfer was not actually avoided, and could not be because of Florida's constitutional
homestead exemption, says nothing about whether the transfer into the tenancy by the
entirety was voidable. Furthermore, it is not relevant that there was no actual
avoidance before the bulk of the funds were transferred to purchase the homestead.
For the foregoing reasons, we hold that the condition precedent in the
statute)“to the extent a transfer is voidable”)is satisfied. Accordingly, pursuant to
the plain meaning of the language of the statute, a money judgment against Defendant
in “the amount necessary to satisfy the creditor’s claim” is permissible.
B. DUPLICATIVE LIABILITY
We conclude that Defendants’ contentions about duplicative liability have
merit. And, at oral argument Dowling voiced no objection to the judgment here being
1
Defendants make only limited factual arguments challenging the district court’s conclusion
that the transfer into the tenancy by the entirety was a voidable fraudulent transfer, and we reject
those arguments as being without merit.
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amended to say that payments made on the prior judgments against Davis that are at
issue)the final judgments of May 1, 2002, and October 29, 2002)should be credited
against the judgment entered against Seibel in this case.
C. CONCLUSION
The judgment entered in this case is affirmed, but we remand to the district
court with instructions to amend the final judgment by inserting at the end of section
1 on page 3 of the Order and Final Judgment the following sentence:
All payments made on the aforementioned final judgments against Davis
of May 1, 2002, and October 29, 2002, (whether previously made or
made hereafter) shall be a credit against this judgment against Defendant
Emily Seibel.
AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS TO AMEND
THE JUDGMENT.
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