NEW CHIEF JUDGE-ELECT
Congratulations to Judge Suarez on his election to chief judge-elect! Coincidentally, the two opinions below were both authored by him.
INADVERTENT DISCLOSURE OF PRIVILEGED DOCUMENTS
Constr. Sys. of Am. v. Travelers Cas. & Sur. Co. of Am., 2013 Fla. App. LEXIS 12329 (Fla. 3d DCA August 7, 2013) involved a petition for certiorari in a seven-year-old suit where counsel inadvertently received privileged documents. A motion to compel return of the documents and a motion to disqualify the law firm were referred to a special magistrate.
The special magistrate issued a report and recommendation finding the documents constituted fact work product. However, he concluded the privilege had been waived and recommended denial of both motions. The trial court rejected the recommendation and granted the motions, concluding that no waiver had occurred and the possibility counsel had gained an unfair informational advantage from the disclosure required disqualification.
The opinion reviews the five-factor analysis established in prior cases: (1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosures; and (5) whether the overriding interests of justice would be served by relieving a party of its error.
Upon reviewing the magistrate’s report and the trial court’s order on the motion to compel, the trial court did not exceed its authority by accepting the facts as found by the magistrate but correctly determining the magistrate misconceived the legal effect of the evidence. Therefore, order compelling return of the documents was left unscathed, but the order disqualifying counsel was quashed because the trial court made extensive findings and credibility determinations based on testimony presented to the magistrate. “This was error. Upon determining the privilege was not waived, the trial court should have remanded the matter to the magistrate for further findings.”
WRIT OF ATTACHMENT
G.E. v. Chuly Int'l, 2013 Fla. App. LEXIS 12334 (Fla. 3d DCA August 7, 2013) reversed an order denying GE’s motion for pre-judgment writ of attachment against Chuly’s property. GE had sued Millennium and a guarantor, but while the action was pending, the guarantor gave a $1.74 million loan to Chuly, a company owned by the guarantor’s then girlfriend. This loan was subsequently forgiven. When GE discovered this, it filed a verified motion for a prejudgment writ of attachment against Chuly for the amount of the Chuly loan and was willing to post a bond in excess of the amount it sought from Chuly. After an evidentiary hearing, the circuit court summarily denied GE's motion for prejudgment writ of attachment or garnishment.
In an action for relief against an allegedly fraudulent transfer sought pursuant to Chapter 726, Florida Statutes, a creditor may seek an attachment against the transferred asset. § 726.108(1)(b), Fla. Stat. (2013). Because the determination of actual fraudulent intent can be difficult, courts look to certain “badges of fraud” to determine whether the transfer was made with the intent to defraud creditors. Those “badges of fraud” are set forth in section 726.105, Florida Statutes (2013).
“At the hearing on GE’s motion for garnishment or attachment, GE presented competent, substantial evidence to support issuance of the writ. GE was not required at that time to prove by a preponderance of the evidence that the loan forgiveness was, actually, a fraudulent transfer. GE merely had to raise a rebuttable presumption of fraudulent intent by asserting the existence of certain badges of fraud, thereby creating a prima facie case for fraudulent transfer to be determined later in the litigation between the parties. GE's complaint clearly alleges several of these badges of fraud, and adequately stated a cause of action for fraudulent transfer.”
The record revealed that the transfer was made to an insider without adequate consideration; the transfer was concealed and it was made shortly before or shortly after a substantial debt was incurred. Chuly did not present sufficient evidence to rebut the initial presumption of fraudulent transfer. Further, GE asserted it would provide a bond in the amount of $3,200,000.00, more than twice the amount of the debt sought against Chuly. See § 76.12, Fla. Stat. (2013).