FTBB, Inc. v. Bing Charles W. Kearney, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 11, 2019
• Docket: 18-11942
• Status: Unpublished

Opinion

Case: 18-11942 Date Filed: 03/11/2019 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11942 Non-Argument Calendar ________________________

D.C. Docket No. 8:09-cv-01841-EAK-MAP

REGIONS BANK, an Alabama state chartered bank, as successor in interest to AmSouth Bank, Plaintiff, FTBB, LLC, Plaintiff - Appellee,

versus

G3 TAMPA, LLC, a Florida limited liability company, Defendant, BING CHARLES W. KEARNEY, JR., BRIAN SEEGER, TRACY J. HARRIS, JR. SECOND SUCCESSOR LARRY S. HYMAN, assignee for G3 Tampa, LLC, a Florida limited liability company, BK FAMILY INVESTMENT PARTNERSHIP I, LTD, et al., Defendants - Appellants, TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA, Intervenor - Appellee. Case: 18-11942 Date Filed: 03/11/2019 Page: 2 of 10

____________________________

Appeal from the United States District Court For the Middle District of Florida ____________________________

(March 11, 2019)

Before MARTIN, JILL PRYOR, and BRANCH, Circuit Judges.

PER CURIAM:

Bing Kearney appeals the post-judgment decision of the district court that

his bank account is subject to garnishment by his creditors because he and his wife

hold it as a joint tenancy rather than a tenancy by the entireties. Having reviewed

the evidence about the opening of the account and the Florida law governing joint

ownership of bank accounts, we affirm.

* * *

This appeal arises out of federal litigation over the financing of a Gulfstream

jet. Regions Bank sued Kearney and other guarantors of the debt in 2009 to collect

more than $5 million they owed. After a bench trial in 2012, the district court

entered a $3.4 million judgment against Kearney, which this Court affirmed.

Regions Bank v. Kearney, 597 F. App’x 1012, 1015 (11th Cir. 2014).

In an effort to collect on that judgment, Regions served USAmeriBank with

a writ of garnishment on several Florida bank accounts that Kearney held there.

2 Case: 18-11942 Date Filed: 03/11/2019 Page: 3 of 10

The account that is the subject of this appeal (hereinafter “the 0056 account”)

contained $625,305 and was jointly held by Kearney and his wife. Kearney moved

to dissolve the writ of garnishment on the grounds that the funds were held as a

tenancy by the entireties and therefore could not be attached by a creditor of one

spouse.1 In 2013, after an evidentiary hearing at which Kearney and other

witnesses testified about Kearney’s intent to open the 0056 account as a tenancy by

the entireties, the magistrate judge issued a report and recommendation that agreed

with Kearney’s characterization of the account. The district court rejected the

recommendation of the magistrate judge in 2015, finding that the clear and

unambiguous evidence of the account’s signature card established that it was

opened as a joint tenancy without the need to consider any additional evidence, and

denying Kearney’s motion to dissolve the writ of garnishment. Regions Bank v.

Hyman, 91 F. Supp. 3d 1234, 1255–57 (M.D. Fla. 2015).

1 Tenancy by the entireties is a form of joint ownership of property that is unique to married couples. Property held by spouses as a tenancy by the entireties is indivisible, because each spouse is possessed of the whole. Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 52–53 (Fla. 2001). Other forms of joint ownership are tenancy in common and joint tenancy with right of survivorship. Id. at 53. The distinction matters to Kearney because joint tenants are considered to each possess their own equal share of the whole when they both are alive. Id. Thus, “a creditor of one of the joint tenants may attach the joint tenant’s portion of the property to recover that joint tenant’s individual debt.” Id. By contrast, “when property is held as a tenancy by the entireties, only the creditors of both the husband and wife, jointly, may attach the tenancy by the entireties property; the property is not divisible on behalf of one spouse alone, and therefore it cannot be reached to satisfy the obligation of only one spouse.” Id. 3 Case: 18-11942 Date Filed: 03/11/2019 Page: 4 of 10

Kearney then entered into mediations with Regions, and Regions agreed to

sell its $3.4 million judgment against Kearney to FTBB, LLC, a shelf corporation

formed by Kearney, for $2.625 million. Kearney Constr. Co., LLC v. Travelers Cas.

& Sur. Co. of Am., 712 F. App’x 907, 909 (11th Cir. 2017). FTBB was substituted

for Regions as a party to the judgment and garnishment, but it did not collect from

Kearney’s USAmeriBank accounts. Id. at 910.

Next, the 0056 account was garnished by Travelers Casualty & Surety

Company of America (“Travelers”) in an attempt to collect on a separate $3.7

million judgment it had won against Kearney in 2011. Id. at 909. Kearney and

FTBB objected to that writ of garnishment and moved to dissolve it, arguing that

FTBB had a priority claim to the funds. Id. at 910. Travelers alleged that the

assignment from Regions to FTBB was a fraudulent transfer and asked the court to

void the assignment or to subordinate FTBB’s claim to Travelers’. Id. That district

court agreed with Travelers and granted it a priority claim on the funds. Id. at 910–

11. On appeal, this Court affirmed the finding that the transfer to FTBB was

fraudulent and approved the remedy fashioned by the district court. Id. at 912–13.

In the present action, the district court had stayed its proceedings pending

the resolution of the Travelers action. In 2018, after our mandate issued, it entered

an order granting Travelers priority over the funds in the 0056 account. Kearney

4 Case: 18-11942 Date Filed: 03/11/2019 Page: 5 of 10

now appeals that 2018 order and the order from 2015 denying Kearney’s motion to

dissolve the writ of garnishment.

On appeal in this Court, Travelers filed a motion to intervene and to dismiss

the appeal from the 2015 judgment as untimely. Kearney responded with a motion

to strike. Our Court denied the motion to strike and allowed Travelers to intervene;

Travelers has filed the sole appellee’s brief in this appeal. We denied the motion to

dismiss, reasoning that the 2015 judgment was not a separately final and

appealable order because it did not completely resolve all of the issues in the

garnishment proceedings. Order, Sept. 12, 2018, ECF No. 51 at 2–3. Both the 2015

and 2018 orders of the district court pertaining to the 0056 account are thus before

us on appeal.

Kearney’s main argument is that the district court incorrectly concluded that

the 0056 account was held as a joint tenancy rather than as a tenancy by the

entireties. The parties dispute the standard of review that applies to this question.

The threshold issue is the decision of the district court that the account signature

card was unambiguous, and whether a contract is ambiguous is a question of law.

Strama v. Union Fid. Life Ins. Co., 793 So. 2d 1129, 1132 (Fla. 1st Dist. Ct. App.

2001). We are thus entitled to review that question de novo. Frulla v. CRA

Holdings, Inc., 543 F.3d 1247, 1252 (11th Cir. 2008). Were we to agree with 5 Case: 18-11942 Date Filed: 03/11/2019 Page: 6 of 10

Kearney that the card is ambiguous, we would then review the factual findings of

the district court for clear error and its evidentiary rulings for abuse of discretion.

See Sitomer v. Orlan, 660 So. 2d 1111, 1115 (Fla. 4th Dist. Ct. App. 1995)

(“Whether the parties created a tenancy by the entireties in a bank account . . . is a

question of fact.”); United States v. Magluta, 418 F.3d 1166, 1177 (11th Cir. 2005)

(“We review the district court’s evidentiary rulings for an abuse of discretion . . .

and we may overturn findings of fact only if clearly erroneous”).

Florida law mandates a presumption in favor of ownership of bank accounts

by spouses as tenancies by the entireties. “Any deposit or account made in the

name of two persons who are husband and wife shall be considered a tenancy by

the entirety unless otherwise specified in writing.” Fla. Stat. § 655.79(1); accord

Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 58 (Fla. 2001) (“if the

signature card of the account does not expressly disclaim the tenancy by the

entireties form of ownership, a presumption arises that a bank account titled in the

names of both spouses is held as a tenancy by the entireties”). Kearney maintains

that he always intended to open the account as a tenancy by the entireties, on the

advice of his lawyers, in order to protect from garnishment the funds he would

deposit there.

Standing between Kearney and this presumption, however, is the signature

card he signed when he opened the 0056 account. Under Florida law, that card can 6 Case: 18-11942 Date Filed: 03/11/2019 Page: 7 of 10

be the dispositive piece of evidence; absent evidence of fraud, the signature card’s

express disclaimer of a tenancy by the entireties ends the inquiry into what the

owner intended. Beal Bank, 780 So. 2d at 61. What Kearney’s signature card says

is undisputed by the parties. In the section titled “OWNERSHIP OF ACCOUNT -

CONSUMER PURPOSE (Select one and initial),” the box for “Multiple-Party

Account” is checked and initialed, while the box immediately below it for

“Multiple-Party Account - Tenancy by the Entireties” is not.

Kearney argues, and the magistrate judge agreed, that this designation was

ambiguous. He asserts that the layout of this section of the card is confusing and

that one could reasonably believe that the checked box belonged to “Tenancy by

the Entireties” below it. We disagree. Reviewing the signature card for ourselves,

7 Case: 18-11942 Date Filed: 03/11/2019 Page: 8 of 10

we find it unambiguous. It clearly offered the option of a tenancy by the entireties

and Kearney clearly selected something else, a joint tenancy with rights of

survivorship. 2

Florida’s Supreme Court precedent is also clear: an express disclaimer of a

tenancy by the entireties can arise when “the financial institution affirmatively

provides the depositors with the option on the signature card to select a tenancy by

the entireties among other options, and the depositors expressly select another form

of ownership option.” Beal Bank, 780 So. 2d at 60. Kearney’s signature card thus

expressly disclaimed a tenancy by the entireties and otherwise specified in writing

a different form of ownership. Wexler v. Rich, 80 So. 3d 1097, 1099–100 (Fla. 4th

Dist. Ct. App. 2012) (finding thus when account owner checked “Multiple Party

Account” rather than “Multiple-Party Account—Tenancy by the Entireties”); cf.

Beal Bank, 780 So. 2d at 60 (a designation of a joint tenancy with right of

survivorship, without more, is not a disclaimer of tenancy by the entireties).

2 Kearney testified before the magistrate judge that he first attempted to open the 0056 account as a tenancy by the entireties held by himself, his wife, and his son, going so far as to have all three of them sign the signature card. When USAmeriBank told him this was impossible, the bank produced a new signature card that was partially filled out, with “Multi-Party Account” checked. He and his wife initialed next to the X on the “Multi-Party Account” line without really looking: “I didn’t have my glasses on, so I just signed where she put the X.” [R. doc. 363 at 54] Although, as we next discuss, we will not consider this extrinsic evidence of intent, we note that Florida law imposes a duty to learn the contents of a contract before signing it and so presumes that a signing party has done so. See Wexler v. Rich, 80 So. 3d 1097, 1100–01 (Fla. 4th Dist. Ct. App. 2012). 8 Case: 18-11942 Date Filed: 03/11/2019 Page: 9 of 10

Accordingly, Kearney is not entitled to Florida’s presumption in favor of

ownership as a tenancy by the entireties.

Neither is he entitled to have us consider extrinsic evidence of his intent to

open the account as a tenancy by the entireties. As we have noted, under Florida

law, the inquiry into the owner’s intent ends with an express designation on the

signature card. Beal Bank, 780 So. 2d at 60. Kearney’s remaining arguments all

involve the district court’s discretion to consider evidence beyond the signature

card, and they therefore fail. He argues that the confusing card layout creates a

“latent ambiguity” requiring the consideration of parol evidence, but the contract

itself is not the kind of “extraneous circumstance” or “collateral matter” that can

create a latent ambiguity under Florida law. C.f., e.g., Mac-Gray Servs., Inc. v.

Savannah Assocs. of Sarasota, LLC, 915 So. 2d 657, 659–60 (Fla. 2d Dist. Ct.

App. 2005) (fact of intervening lease renewal rendered lease addendum latently

ambiguous); Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So. 2d 544, 547

(Fla. 1st Dist. Ct. App. 1973) (history of past dealings under guaranty rendered

guaranty latently ambiguous). The district court could not have abused its

discretion to hear extrinsic evidence because it had none. It was required to stop its

inquiry after examining the signature card. Kearney’s arguments that the bank

improperly failed to offer him the option of a tenancy by the entireties and that he

9 Case: 18-11942 Date Filed: 03/11/2019 Page: 10 of 10

told bank employees he wanted a tenancy by the entireties are barred by the clear

evidence of the signature card.

We also affirm that the district court was not required to hold its own

evidentiary hearing before rejecting the findings of the magistrate judge because

the magistrate judge did not make any credibility findings. Cf. United States v.

Powell, 628 F.3d 1254, 1256–57 (11th Cir. 2010) (a district court abuses its

discretion when it rejects credibility findings of the magistrate judge without

conducting its own live hearing).

AFFIRMED.