Daniel J. Stermer v. Old Republic National Title Insurance Company

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10850

____________________

In Re: ATIF, Inc.,

Debtor.

DANIEL J. STERMER,

Plaintiff-Appellant,

versus

OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY,

OLD REPUBLIC NATIONAL TITLE HOLDING COMPANY,

OLD REPUBLIC TITLE COMPANIES, INC.,

ATTORNEYS TITLE FUND SERVICES, LLC,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:21-cv-00950-JLB,

Bkcy No. 2:17-bk-01712-FMD

____________________

Before ROSENBAUM, NEWSOM, and ABUDU, Circuit Judges.

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2 Opinion of the Court 23-10850

ABUDU, Circuit Judge:

Creditor Trustee, Daniel Stermer, appeals the district court’s

judgment in favor of Defendants Old Republic National Title In-

surance Company (“OR Title”), Old Republic National Title Hold-

ing Company (“OR Holding”), Old Republic Title Companies, Inc.

(“OR Companies”) (collectively, the “OR Defendants”), and Attor-

neys’ Title Fund Services, LLC (“ATFS”) in a bankruptcy proceed-

ing involving ATIF, Inc. (the “Debtor”). This appeal and the pro-

ceedings below concern the transfer of the Debtor’s assets within

15 months of filing for bankruptcy. The Creditor Trustee, suing

under 11 U.S.C. § 548(a)(1) of the Bankruptcy Code and Chapter

726 of the Florida Statutes, sought to avoid the transfer of those

assets. He further sought to have ATFS declared as an alter ego for

OR Holding and OR Companies and to hold OR Holding and OR

Companies liable as the Debtor’s “successor in interest."

The case primarily centers around the validity of a “Master

Agreement” between OR Title, the Debtor, and related parties

with respect to whether intangible assets were transferred at their

reasonable equivalent value. Following a bench trial, the bank-

ruptcy court held that the Debtor transferred those assets at their

reasonably equivalent value and, therefore, none of the Debtor’s

creditors were harmed.

On appeal, the Creditor Trustee challenges the bankruptcy

court’s exclusion of his expert’s opinion which valued the trans-

ferred assets at a much higher amount than the bankruptcy court

determined, and its rejection of the successor liability and alter ego

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23-10850 Opinion of the Court 3

claims. After a thorough review of the record and the parties’

briefs, and with the benefit of oral argument, we affirm the district

court’s order.

I. BACKGROUND

A. Joint Venture Agreement

The Debtor is a Florida-based title insurer regulated by the

Florida Office of Insurance Regulation (“FL-OIR”). The Debtor

provided services such as issuing title insurance policies through

licensed attorney-agents, underwriting, training agents, helping

with title-related issues, and maintaining a title plant—a compila-

tion of title information and records in Florida to search and exam-

ine title to real property. In 2008, the Debtor suffered a massive

financial hit due to defalcations 1 by its attorney-agents, a decline in

the value of its stock market investments, and the reduction of in-

come from title insurance policies.

To save the Debtor from financially disintegrating, the

Debtor and OR Holding entered into a joint venture agreement

and formed the limited liability company ATFS in 2009. Each party

owned a 50 percent interest in ATFS. OR Holding contributed $10

million in cash to ATFS. The Debtor contributed its workforce,

agent network, and title plant, which ATFS maintained. Pursuant

to the 2009 joint venture agreement, the Debtor and OR Holding

entered into an operating agreement for ATFS. After the

1 Defalcation most commonly refers to a fiduciary’s inability to produce en-

trusted funds or property. See Quaif v. Johnson, 4 F.3d 950, 955 (11th Cir. 1993).

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4 Opinion of the Court 23-10850

agreement, the two entities operated from the same location be-

cause ATFS leased the Debtor’s office space. ATFS performed cer-

tain of the Debtor’s former functions on behalf of OR Title, alt-

hough it ceased to issue new title policies. The Debtor continued

to administer its existing title policies.

ATFS maintained and updated the title plant by conducting

searches of real property records on the title plant for OR Title,

which began issuing new title policies in the Debtor’s stead. In re-

turn, ATFS received a percentage of the revenue from title policies

that OR Title issued. Although ATFS maintained the title plant, it

delivered a copy of the updated title plant to the Debtor every six

months.

After executing the joint venture agreement, the Debtor re-

tained substantially all its assets. The Debtor reported to the FL-

OIR that, three months after entering into the joint venture agree-

ment, it retained approximately $240 million in assets. Despite re-

ceiving income from the title plant and a percentage of the revenue

from OR Title’s policy premiums, ATFS experienced operating

losses totaling $30 million over 27 months. OR Holding funded

ATFS with approximately $20 million in loans to keep it afloat. The

Debtor contributed by licensing its trade names and marks, includ-

ing “The Fund”—the name under which it did business—to ATFS

at no cost.

B. The Amended Joint Venture Agreement

In 2011, the Debtor, OR Defendants, and ATFS amended

the joint venture agreement to alter the ownership interests of the

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Debtor and OR Holding in ATFS. Under the amended agreement,

an independent board of governors—comprising three governors

designated by OR Holding, two designated by the Debtor, and the

Chief Executive Officer of ATFS—controlled ATFS’s business op-

erations. The agreement also converted the Debtor’s financial in-

terest in ATFS to a governance-only interest. It provided the

Debtor the option of converting its governance-only interest into a

financial interest by purchasing half of OR Holding’s rights. To ex-

ercise the conversion option, the Debtor had to repay at least half

of the loans that it had received from OR Holding. The agreement

also provided OR Holding with a call-option to divest the Debtor’s

interest in ATFS.

The Debtor transferred its trade names and marks, including

its “The Fund” trade name to its parent, Attorneys’ Title Insurance

Fund (“ATIF Trust” or the “Trust”), and publicly recorded the

transfer. It did so “to protect and insulate its [IP]” from OR Hold-

ing during the amended joint venture agreement negotiations. No-

tably, the Debtor remained solvent at the time of the transfer.

The amended agreement also altered ATFS’s ability to earn

income and its rights to the title plant. Rather than receiving a per-

centage of the premiums from the policies that OR Title issued,

ATFS received reimbursement for its expenses, capped at 50 per-

cent of the net premiums. The amended agreement provided the

Debtor with a conditional right to the title plant. The Debtor’s

right to receive a copy of the title plant was conditioned on ATFS’s

dissolution, OR Holding’s exercise of its call-option, or the

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6 Opinion of the Court 23-10850

Debtor’s exercise of the conversion option. The FL-OIR and the

Debtor’s board of directors approved the amended joint venture

agreement, which became effective in October 2011.

C. Master Agreement Transactions

In fall 2015, the Debtor suffered another financial crisis. The

Debtor’s statutory surplus—the value of its assets over its liabili-

ties—declined again, and the FL-OIR notified the Debtor that it

would refer it to the Florida Department of Financial Services to

place it in a receivership. The Debtor sought help from OR Title

regarding its financial challenges and requested that the insurer re-

insure its title policy liabilities. After conducting its own due dili-

gence, OR Title agreed to reinsure the Debtor’s title policy liabili-

ties. During the same period, SOBC Corp., an unaffiliated entity,

offered to purchase all of the Debtor’s stock for $1.00 and the cost

of closing the deal.

After considering the three options before it—receivership,

SOBC’s offer, and OR Title’s reinsurance proposal, the Debtor’s

board voted to proceed with OR Title’s reinsurance proposal. FL-

OIR only approved of the proposal after OR Title agreed to assume

more of the Debtor’s reinsurance liabilities. To implement OR Ti-

tle’s proposal, the Debtor, the Trust, OR Title, OR Holding, Old

Republic International Corporation,2 and ATFS entered into a Mas-

ter Agreement. OR Title assumed all the Debtor’s policy and

2 Old Republic International is a publicly traded company, which directly or

indirectly holds all rights, titles, and interest in OR Holding, OR Title, and OR

Companies.

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reinsurance liabilities, and the Debtor gave up its contingent rights

to the title plant, pursuant to the Master Agreement. The Trust

also transferred the trade names and marks, including “The Fund,”

to OR Title. In exchange, the Debtor transferred assets valued at

approximately $47.5 million to OR Title.

The parties executed the Master Agreement on December

12, 2015. The FL-OIR requested that OR Title assume additional

policy-related liabilities, namely the Debtor’s reinsurance obliga-

tions, which the parties incorporated into the Master Agreement.

Once the parties finalized the Master Agreement, the Debtor re-

sumed administering the claims that it retained under the Agree-

ment. During the same period, OR Title administered and paid

claims on the Debtor’s policy liabilities that it had assumed.

In January 2016, OR Holding exercised its call-option to di-

vest the Debtor’s ownership interest in ATFS to the Trust for no

consideration. OR Holding became the sole shareholder with fi-

nancial interests; all of ATFS’s employees became OR Title’s em-

ployees; and ATFS began leasing its office space from OR Title in-

stead of the Debtor. Consequently, OR Defendants began operat-

ing ATFS and its title policy business as “The Fund.”

D. The Debtor’s Chapter 11 Bankruptcy Case

On March 2, 2017, the Debtor voluntarily filed for Chapter

11 bankruptcy. The bankruptcy court confirmed a reorganization

plan for the Debtor and appointed Daniel Stermer as the Creditor

Trustee. In October 2018, the Creditor Trustee initiated an adver-

sary proceeding against OR Defendants and ATFS, alleging that

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under the Master Agreement, OR Defendants did not pay the rea-

sonably equivalent value in exchange for the Debtor’s cash and in-

vestments, intellectual property, and real estate. The Creditor

Trustee also brought claims against OR Holding and OR Compa-

nies 3 under the theory of successor liability, seeking a declaratory

judgment that ATFS was the alter ego of those entities.

i. Parties’ Cross-Motions for Summary Judgment

OR Defendants and ATFS moved for summary judgment on

the Creditor Trustee’s claims. The Creditor Trustee then moved

for partial summary judgment, arguing that undisputed facts

showed that the Debtor fraudulently transferred its assets to OR

Defendants in violation of the Bankruptcy Code and that ATFS—

merely the Debtor’s reincarnation—should be liable to the

Debtor’s creditors. The bankruptcy court bifurcated the proceed-

ings to first conduct a limited trial on whether the Debtor received

reasonably equivalent value for the assets that it transferred to OR

Defendants pursuant to the Master Agreement. The parties stipu-

lated that the value of the Debtor’s tangible assets was approxi-

mately $47.5 million. Therefore, the only remaining issues at trial

were: (1) the value of the intangible assets that the Debtor trans-

ferred, including rights to the title plant and its “The Fund” trade

name, workforce, patents, software, and technology; and (2) the

3 The parties’ “Joint Pre-trial Stipulation” identifies OR Companies as being

“created in 2016 as a mid-stream company for all of OR Holding’s title insur-

ance service related businesses but not its title insurers. Since its inception . .

. , OR Companies [has been] owned by OR Holding.”

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value that the Debtor received under the Master Agreement from

OR Title’s assumption of the Debtor’s title policy and reinsurance

liabilities.

ii. Evidentiary Rulings

Prior to trial, the Creditor Trustee retained Allen Pfeiffer to

opine on the value of the Debtor’s intangible assets. Pfeiffer sub-

mitted a written expert report. To value the Debtor’s intangible

assets, Pfeiffer used the “premium over tangible equity” approach.

Under that method, Pfeiffer based his estimates of the Debtor’s rev-

enue on the issuance of new title policies even though, pursuant to

the joint venture agreement, the Debtor was no longer issuing such

new policies. He then applied a “premium over tangible equity”

multiple to estimate the value of the Debtor’s intangible assets.

He opined that the value of the Debtor’s intangible assets

totaled $80 million. He further opined that the value of the title

plant was approximately $30 million. Pfeiffer’s report also asserted

that the Debtor could become a title insurer again by exercising its

option to exit the joint venture, but to exercise this option, the

Debtor would first have to raise $21 million to repay ATFS and OR

Defendants pursuant to the amended joint venture agreement.

OR Defendants moved to exclude Pfeiffer’s testimony and

report as unreliable and too speculative. According to OR Defend-

ants, Pfeiffer’s report surmised the Debtor could raise substantial

equity capital to exercise its $21 million option to reemerge despite

the Debtor’s admissions that it had no such ability at the time.

They also argued that Pfeiffer’s suggestion that reemergence funds

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could come through insolvency proceedings was also conjectural

because the Debtor could not initiate insolvency proceedings of its

own volition. The bankruptcy court partially granted OR Defend-

ants’ motion to exclude Pfeiffer’s testimony. It struck the portions

of Pfeiffer’s report that discussed the value of the Debtor’s option

to exit the joint venture and reemerge as a title insurer, finding that

Pfeiffer’s opinion on this matter was speculative. The court also

precluded Pfeiffer from testifying at trial about the value of the

reemergence option but ruled that Pfeiffer could testify at trial

about the value of the title plant and the Debtor’s intangible assets.

It explained that the value of the title plant and intangible assets

were not premised on the same flawed methodology as the

reemergence option. The court further ruled that OR Defendants

and ATFS could proffer rebuttal expert testimony at trial to help

“the [c]ourt’s consideration of whether Pfeiffer’s opinion satisfies

the Daubert standards.”

iii. Trial on Reasonably Equivalent Value

After ruling on the expert testimony issues, the bankruptcy

court conducted a six-day trial on the first issue of whether the

Debtor received the reasonably equivalent value of the intangible

assets it transferred to the OR Defendants. 4 Pfeiffer, for his part,

4 Following the bankruptcy court’s evidentiary rulings, the Creditor Trustee

moved to amend the complaint pursuant to Fed. R. Civ. P. 15(b) to also allege

a fraudulent mediate transfer of intellectual property from the Debtor to the

Trust. See Watts v. MTC Dev., LLC (In re Palisades at W. Paces Imaging Ctr., LLC),

501 B.R. 896, 916-17 (Bankr. N.D. Ga. 2013) (identifying a “mediate transferee”

as the subsequent recipient of property following an initial transfer between a

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maintained that the value of the intangible assets transferred

amounted to $80 million, but he acknowledged that his calcula-

tions were not based on any textbooks or treatises that supported

the “premium over tangible equity” method he employed.

OR Defendants and ATFS proffered a rebuttal expert, Ste-

ven Hazel. Hazel testified that Pfeiffer’s valuation of the Debtor’s

intangible assets was flawed because it was not based on reliable

transferor and transferee). The bankruptcy court denied the motion as futile

because (1) the property transfer happened outside the relevant scope of time,

and (2) there was no fraudulent transfer. The district court agreed.

Although the Creditor Trustee challenges the denial of his motion on appeal,

the brief devotes little space to the issue, and the bankruptcy court’s assess-

ment was correct. The Master Agreement between OR Defendants and the

Debtor was, as we will explain, for a reasonably equivalent value, meaning it

was not fraudulent. Also, the statute of limitations under the Bankruptcy

Code and Florida law barred the Creditor Trustee’s fraudulent transfer claim.

The Creditor Trustee could not rely on the FDIC’s six-year statute of limita-

tions for fraudulent transfers (i.e., the FDIC “extender” statute) because that

statute of limitations applies only to claims that arose before the FDIC was

appointed as receiver. See Resol. Tr. Corp. v. Artley, 28 F.3d 1099, 1101 (11th

Cir. 1994) (quoting F.D.I.C. v. Dawson, 4 F.3d 1303, 1309 (5th Cir. 1993) (ex-

plaining that 12 U.S.C. § 1821(d)(14) cannot “revive stale state law claims ac-

quired by the FDIC . . . . [T]he [bankruptcy] court must first determine

whether the claims being brought” by the party seeking to invoke the extender

statute of limitations “were viable under the applicable state statute of limita-

tions at the time the [FDIC] was appointed receiver. If the state statute has

not yet run, the [six-year] period provided by 12 U.S.C. § 1821(d)(14)(A) then

begins to run.”)). At the time that the FDIC was appointed as receiver over

Washington Mutual Bank, which is one of the Debtor’s creditors who sought

damages resulting from the Debtor’s alleged fraud, the mediate transfer claim

had not accrued, rendering the extender statute of limitations inapplicable.

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principles nor was his methodology widely accepted in the valua-

tion and appraisal industry. One of Hazel’s main critiques was that

Pfeiffer provided a collective valuation for all the intangible assets

rather than breaking down the value of each individual intangible

asset.

Following trial, the court ruled that the Creditor Trustee

failed to satisfy his burden of proof to establish that the Debtor re-

ceived less than reasonably equivalent value for the Master Agree-

ment transaction. The court first recognized the undisputed fact

that the Debtor transferred tangible assets valued at $47.5 million

in exchange for OR Title’s assumption of the Debtor’s title insur-

ance policy liabilities, which had a value between $45 million and

$57.2 million. Next, the court determined that the Master Agree-

ment stripped the Debtor of assets which Pfeiffer’s $80 million val-

uation nevertheless included, thus making his overall estimate

overinclusive and flawed. If, as the court concluded, Pfeiffer had

only valued those assets the Debtor actually possessed as of the

date of the Master Agreement, the total would be a lot less. The

court further determined that, at the time the Debtor transferred

its title plant rights under the Master Agreement, it held merely a

conditional interest or right to the title plant. Therefore, the court

reasoned, the Creditor Trustee failed to account for the diminished

value of the Debtor’s right to the title plant as of the date the Master

Agreement took effect.

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The court further found Pfeiffer’s opinion ipse dixit 5 because

he failed to establish that his testimony and opinions were based on

reliable principles and valuation methodologies. Accordingly, the

court did not give any weight to his testimony and opinion. The

court reasoned that, although Pfeiffer initially appeared to possess

specialized knowledge, his testimony revealed that he did not pos-

sess any certifications or other credentials as an appraiser or valua-

tion expert, and he did not “rely on textbooks” when valuing the

assets subject to the Master Agreement. The court concluded that

Pfeiffer’s experience was limited to estimating the value of title

companies with a title plant, not just the value of a title plant alone.

Ultimately, the court found that the Debtor had received

reasonably equivalent value in exchange for its tangible assets. In

making its determination, the court focused on the parties’ stipula-

tion that the value of the Debtor’s tangible assets was approxi-

mately $47 million, that the value of OR Title’s assumption of title

insurance liabilities was between $45 and $57 million, and circuit

precedent. 6 Thus, the bankruptcy court found that OR Title’s

5 Ipse dixit refers to something that has been “asserted but not proved.” Ipse

Dixit, BLACK’S LAW DICTIONARY (11th ed. 2019); see also Gen. Elec. Co. v. Joiner,

522 U.S. 136, 146 (1997) (explaining that “nothing in . . . the Federal Rules of

Evidence requires a district court to admit opinion evidence that is connected

to existing data only by the ipse dixit of the expert. A court may conclude that

there is simply too great an analytical gap between the data and the opinion

proffered.”).

6 The bankruptcy court cited Crumpton v. Stephens (In re Northlake Foods, Inc.),

715 F.3d 1251, 1257 (11th Cir. 2013), in which we recognized that “[t]he

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14 Opinion of the Court 23-10850

reinsurance of the Debtor’s title policy liabilities in return for the

Debtor’s tangible assets constituted an exchange of reasonably

equivalent value.

iv. Summary Judgment Order

Next, the bankruptcy court addressed: (1) whether the

Debtor made the Master Agreement transfers to OR Defendants

with the actual intent to hinder, delay, or defraud its creditors; (2)

whether ATFS qualified as the Debtor’s successor in interest under

the Creditor Trustee’s “de facto merger” and “mere continuation”

theories such that it should be responsible for the Debtor’s liabili-

ties; and (3) whether ATFS served as OR Holding’s or OR Compa-

nies’ alter ego.

The court found that the Creditor Trustee could not recover

the Debtor’s transfers to ATFS under the Master Agreement be-

cause the Creditor Trustee failed to prove that the Debtor entered

into the transaction with a fraudulent intent. The court found that:

(1) the Master Agreement transfers constituted substantially all the

Debtor’s assets; (2) the Debtor faced the threat of suit prior to mak-

ing the transfers; and (3) the Debtor was insolvent or became insol-

vent because of the transfers. However, it ultimately concluded

that the transfers were made for the legitimate, independent pur-

pose of reinsuring the Debtor’s title policy liabilities. The court

relied, in part, on the FL-OIR’s decision to approve the Master

concept of reasonably equivalent value does not require a dollar-for-dollar

transaction.”

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Agreement because it was “in the best interest of [the Debtor’s]

policyholders . . . .” Although the court recognized that some of

the facts in the case could suggest the Debtor’s intentions were

fraudulent, the documented benefits to policyholders were more

likely the overriding purpose behind the transfers, outweighing

any facts implying otherwise.

As to the successor liability claim, the bankruptcy court

found that ATFS did not qualify as the Debtor’s successor in inter-

est because the Debtor and ATFS did not share the same assets or

continuity of ownership given that the Trust owned the Debtor,

whereas the Debtor and OR Defendants owned ATFS. The court

further highlighted that the Debtor did not dissolve after ATFS’s

formation under the 2009 joint venture agreement, and ATFS did

not assume the Debtor’s title policy liabilities or general operating

liabilities under the 2009 joint venture agreement. The bankruptcy

court also rejected the Creditor Trustee’s alter ego claim. Alt-

hough it determined that a general issue of material fact existed as

to whether OR Holding’s control over a majority of seats on

ATFS’s board of governors, amounted to control over ATFS, the

court ruled that the remaining elements of an alter ego claim were

not satisfied.

v. District Court Judgment

The Creditor Trustee appealed the bankruptcy court’s deci-

sion, essentially raising the same arguments he presented below.

The district court agreed with the bankruptcy court’s factual find-

ings and legal conclusions, and affirmed its decision. According to

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16 Opinion of the Court 23-10850

the district court, the bankruptcy court did not err in excluding

Pfeiffer’s testimony given his opinions were based on unreliable

principles and methodologies. Evidence from trial also supported

the lower court’s finding that the parties transacted the Master

Agreement for reasonably equivalent value. The district court

ruled that the Master Agreement was not a fraudulent transaction,

in part because the parties disclosed the Agreement to the FL-OIR,

which reviewed and approved the transaction. The court. thus,

concluded that the record did not support the Creditor Trustee’s

claim that the parties entered into the agreement for the purpose

of avoiding the receivership.

As to the successor liability and alter ego claims, the district

court adopted the bankruptcy court’s findings of fact in concluding

that ATFS did not qualify as the Debtor’s successor in interest. In

particular, it reasoned that the Trust’s governance-only interest in

ATFS was insufficient to establish common ownership. Similarly,

the court ruled ATFS did not qualify as any of OR Defendants’ alter

ego because the mere fact that they shared a joint bank account did

not evince that ATFS was organized to mislead the Debtor’s cred-

itors or to perpetuate fraud. Accordingly, the court concluded that

the bankruptcy court did not err in finding that ATFS was not cre-

ated or used for a fraudulent or improper purpose.

The Creditor Trustee initiated the present appeal.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the evidence,

viewed in the light most favorable to the nonmoving party, presents

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23-10850 Opinion of the Court 17

no genuine issue of material fact and compels judgment as a matter

of law. Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317,

322–23 (1986). The Federal Rules of Bankruptcy Procedure incor-

porate by reference the summary judgment standard from the

rules of civil procedure and apply that same standard in adversary

proceedings. See Fed. R. Bankr. P. 7056.

This Court sits as a second court of review of a bankruptcy

court’s decisions, independently examining the bankruptcy court’s

factual and legal determinations and applying the same standards

of review as the district court. IBT Int’l, Inc. v. Northern (In re Int’l

Admin. Servs., Inc.), 408 F.3d 689, 698 (11th Cir. 2005) (citation omit-

ted). This Court reviews de novo conclusions of law drawn by both

the district court and the bankruptcy court and reviews the bank-

ruptcy court’s factual findings for clear error. See OHI Asset (VA)

Martinsville SNF, LLC v. Wagner (In re Wagner), 115 F.4th 1296, 1303

(11th Cir. 2024). Neither this Court nor the district court “may

make independent factual findings.” Law Sols. of Chi. LLC v. Corbett,

971 F.3d 1299, 1304 (11th Cir. 2020) (quoting Englander v. Mills (In re

Englander), 95 F.3d 1028, 1030 (11th Cir. 1996)). Whether a trial

court “applied the correct burden of proof is a question of law sub-

ject to plenary review.” Abbot v. Perez, 585 U.S. 579, 607 (2018).

However, a factual finding “based on the application of an incorrect

burden of proof . . . cannot stand.” Id.

We review a trial judge’s rulings regarding the admissibility

of expert testimony and the reliability of that testimony for abuse

of discretion. United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir.

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18 Opinion of the Court 23-10850

2004) (en banc). A trial court abuses its discretion if it misapplies

the law, fails to follow required procedure, bases its decision on

clearly erroneous facts, or clearly errs in judgment. United States v.

Brown, 415 F.3d 1257, 1266 (11th Cir. 2005). We accord considerable

deference to trial judges as to how they determine if an expert is

reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). The

abuse of discretion standard is a constant, which does not relent

just because a decision on an expert’s testimony is outcome deter-

minative. Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296,

1305 (11th Cir. 2014). Therefore, unless we find the trial judge’s

decision to admit an expert witness is manifestly erroneous, we will

defer to it. Id.; see Brown, 415 F.3d at 1266 (“A court of appeals ap-

plying ‘abuse-of-discretion’ review to [expert testimony] rulings

may not categorically distinguish between rulings allowing expert

testimony and rulings disallowing it.” (quoting Gen. Elec. Co. v.

Joiner, 522 U.S. 136,141–42 (1997).

III. DISCUSSION

A. The Bankruptcy Court Did Not Err in Excluding, Sua Sponte, the

Creditor Trustee’s Valuation Expert and His Opinion Post-Trial

Expert testimony must conform to the standards of Federal

Rule of Evidence 702. Under Rule 702, expert testimony is admis-

sible if: (1) the expert is sufficiently qualified to testify on the rele-

vant subject matter; (2) the expert’s methodology is reliable accord-

ing to the standards articulated in Daubert; and (3) the expert’s tes-

timony will be helpful to the factfinder in understanding the perti-

nent issues at trial. Chapman, 766 F.3d at 1304; see Daubert v. Merrell

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23-10850 Opinion of the Court 19

Dow Pharms., Inc., 509 U.S. 579, 589–94 (1993) (setting forth factors

to guide trial judges in assessing the reliability of an expert’s meth-

odology). In applying these three requirements, trial courts act as

the gatekeepers of expert testimony. Sorrels v. NCL (Bahamas) Ltd.,

796 F.3d 1275, 1281 (11th Cir. 2015). Their objective is to ensure

the factfinder considers technical matters based on reliable expert

testimony. Id.

To assess the reliability of an expert’s testimony, courts con-

sider whether the expert’s theory: (1) has been tested; (2) has been

subject to peer review and publication; (3) has a tendency to err;

and (4) has reached “general acceptance” in the relevant field. Alli-

son v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) (cit-

ing Daubert, 509 U.S. at 593–94). An expert may base his or her

testimony on professional studies or personal experience, but the

testimony must still satisfy the Daubert standard to be admissible.

Maiz v. Virani, 253 F.3d 641, 665, 669 (11th Cir. 2001). The party

proffering the expert bears the burden of establishing that the ex-

pert’s testimony is reliable and, therefore, admissible. Knepfle v. J-

Tech Corp., 48 F.4th 1282, 1294 (11th Cir. 2022). Even so, the ad-

mission of expert testimony is within the trial judge’s sound discre-

tion. Id.

The bankruptcy court properly excluded Pfeiffer’s testi-

mony pursuant to Federal Rule of Evidence 702 and Daubert. For

his testimony to be admissible, Pfeiffer needed a reliable method-

ology in determining the value of the Debtor’s intangible assets.

Contrary to the Creditor Trustee’s assertion that the bankruptcy

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20 Opinion of the Court 23-10850

court’s reliance on textbooks and treatises is misplaced and an in-

sufficient basis to exclude Pfeiffer’s testimony, 7 the bankruptcy

court provided a well-reasoned explanation as to why it did not

credit his testimony. In addition to finding that Pfeiffer failed to

support his use of the “premium over tangible equity” multiple

with references to accepted valuation textbooks and treatises, the

bankruptcy court explained that Pfeiffer failed to value the

Debtor’s intangible assets separately. The bankruptcy court rea-

soned that in assessing the value of the intangible assets as a whole,

Pfeiffer improperly included intangible assets that the Debtor no

longer possessed once the parties entered into the Master Agree-

ment, making it virtually impossible for the court to determine

what portion of his $80 million estimate accurately reflected the

Debtor’s actual intangible assets. See Knepfle, 48 F.4th at 1294 (ex-

plaining that a court need not admit opinion evidence if the testi-

mony does not have a justified relationship to the pertinent facts).

The bankruptcy court further explained that Pfeiffer’s testi-

mony failed to value the Debtor’s rights or interest in the title plant

7 The Creditor Trustee relies on Triant v. Am. Med. Sys. Inc., No. CV-12-00450-

PHX-DGC, 2020 WL 4049844, at *13 (D. Ariz. July 20, 2020), to argue that

Rule 702 does not require that expert reports quote textbooks and treatises. In

Triant, the district court found that, although an expert’s report did not cite

any articles or publications, the expert could still testify at trial because of the

expert’s qualifications and experience. Id. As the district court recognized,

Triant is distinguishable from the present case. Unlike the Triant expert, who

held certifications in the relevant field, Pfeiffer testified that he did not hold

any certifications or designations as a valuation expert or as an appraiser, and

he had never separately valued a title plant. See id. at *2.

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23-10850 Opinion of the Court 21

as of the execution of the Master Agreement. Thus, rather than

merely relying on Pfeiffer’s failure to reference textbooks and trea-

tises, the bankruptcy court thoroughly explained the flaws in

Pfeiffer’s methodology. See Fed. R. Evid. 702(c); Daubert, 509 U.S.

at 593–94. Accordingly, the bankruptcy court did not abuse its dis-

cretion in affording Pfeiffer’s testimony little to no weight because

his testimony did not conform to reliability standards under the

Federal Rules of Evidence and Daubert.

Moreover, the bankruptcy court notified the parties that it

would revisit the issue whether Pfeiffer’s testimony satisfied the

Daubert standard post-trial. Prior to trial, the bankruptcy court al-

lowed OR Defendants and ATFS to proffer Hazel as a rebuttal ex-

pert on the grounds that “Hazel’s rebuttal testimony will be very

helpful to the [c]ourt’s consideration of whether Pfeiffer’s opinion

satisfies the Daubert standards.” In the bankruptcy court’s written

findings of fact, conclusions of law, and memorandum opinion re-

garding reasonably equivalent value, the bankruptcy court

weighed Hazel’s testimony against Pfeiffer’s, explaining how Ha-

zel’s testimony revealed the fallacies in Pfeiffer’s opinion. Thus,

the bankruptcy court did consider Pfeiffer’s testimony and decided

to give it little to no weight only after finding that it failed to satisfy

the applicable reliability standards. The bankruptcy court properly

exercised its discretion to allow Pfeiffer’s testimony, assess his tes-

timony at trial, and subsequently exclude it as unreliable. See

Brown, 415 F.3d at 1265 (explaining that under the abuse of discre-

tion standard, trial courts enjoy a significant range of choices on

evidentiary issues so long as their choices “do[] not constitute clear

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22 Opinion of the Court 23-10850

error of judgment” (quoting United States v. Kelly, 888 F.2d 732, 745

(11th Cir. 1989))). Therefore, we affirm the ruling as to the weight

and reliability of Pfeiffer’s testimony.

B. The Bankruptcy Court Did Not Err in Finding the Creditor Trus-

tee Failed to Demonstrate that the Debtor Fraudulently Trans-

ferred Its Assets

The Bankruptcy Code allows a trustee to “avoid any trans-

fer . . . of an interest of [a] debtor in property, or any obliga-

tion . . . incurred by the debtor,” if the debtor “made such transfer

or incurred such obligation with actual intent to hinder, delay, or

defraud” its creditors. 11 U.S.C. § 548(a)(1)(A). The Creditor Trus-

tee argues that the bankruptcy court erred in ruling that he had not

established the Debtor’s fraudulent intent or met his burden of

proof concerning whether the Debtor received less than reasona-

bly equivalent value in exchange for its assets. We disagree.

Because fraudulent intent remains difficult to prove by di-

rect evidence, courts may look to circumstantial evidence to rea-

sonably infer if fraud occurred. Dionne v. Keating (In re XYZ Options,

Inc.), 154 F.3d 1262, 1271 (11th Cir. 1998). Fraudulent transfer

claims brought under the Bankruptcy Code and state law may be

analyzed at the same time because they are often similar in their

procedure and substantive law. Kapila v. SunTrust Mortg. (In re

Pearlman), 515 B.R. 887, 894 (Bankr. M.D. Fla. 2014).

Florida courts consider the following eleven factors, or

“badges of fraud,” to determine whether a debtor made a transfer

with the actual intent to hinder, delay or defraud a creditor:

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23-10850 Opinion of the Court 23

a. The transfer or obligation was to an insider.

b. The debtor retained possession or control

of the property transferred after the trans-

fer.

c. The transfer or obligation was disclosed

or concealed.

d. Prior to the transfer, the debtor had been

sued or threatened with suit.

e. The transfer was of substantially all the

debtor’s assets.

f. The debtor absconded.

g. The debtor removed or concealed assets.

h. The value of the consideration received by

the debtor was reasonably equivalent to the

value of the asset transferred.

i. The debtor was insolvent or became insol-

vent shortly after the transfer was made.

j. The transfer occurred shortly before or

shortly after the debtor incurred a substan-

tial debt.

k. The debtor transferred the essential assets

of the business to a lienor who transferred

the assets to an insider of the debtor.

Fla. Stat. § 726.105(2); Levine v. Weissing (In re Levine), 134 F.3d 1046,

1053 (11th Cir. 1998).

The badges of fraud are not exclusive, and courts may con-

sider other evidence to determine a debtor’s intent. In re Jennings,

332 B.R. 465, 469 (Bankr. M.D. Fla. 2005). Courts must weigh the

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24 Opinion of the Court 23-10850

facts surrounding the exchange and assess any intent to delay or

hinder a creditor in full context rather than in a vacuum. Id. Fur-

ther, a plaintiff need not prove every badge of fraud to prevail on

his claim. See Off. Comm. of Unsecured Creditors of Toy King Distribs.

v. Liberty Sav. Bank (In re Toy King Distribs., Inc.), 256 B.R. 1, 128

(Bankr. M.D. Fla. 2000) (noting the “confluence of several” badges

is sufficient for “conclusive evidence of an actual intent to defraud”

(quoting Max Sugarman Funeral Home, Inc. v. A.D.B. Investors, 926

F.2d 1248, 1254–55 (1st Cir. 1991))). Therefore, even when the stat-

utory factors for fraud are present, courts need not necessarily pre-

sume actual intent “where a debtor had legitimate or independent

reasons or purposes for making the transfer.” Stewart v. Stewart (In

re Stewart), 280 B.R. 268, 283 (Bankr. M.D. Fla. 2001) (citation omit-

ted).

The Creditor Trustee maintains that he established fraudu-

lent intent by showing, to the court’s satisfaction, that: (1) the Mas-

ter Agreement transferred substantially all the Debtor’s assets;

(2) the Debtor had been sued or threatened with suit before the

Master Agreement transaction; and (3) the Debtor was insolvent or

became insolvent because of the Master Agreement. Those badges

of fraud alone, he argues, were sufficient to conclude the transfer

was unlawful. The Creditor Trustee also argues that he showed

concealment, that OR Title was an insider, and that the Debtor did

not receive reasonably equivalent value for the transferred assets.

We review the contested badges of fraud in turn.

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23-10850 Opinion of the Court 25

i. Creditor Trustee failed to establish that the Debtor’s trans-

fer of assets was concealed.

One indica of fraudulent intent is when a debtor conceals its

transfer of assets. Fla. Stat. § 726 105(2)(c). The Creditor Trustee

contends that the parties camouflaged the Master Agreement

transaction because, although they disclosed the Master Agree-

ment to the FL-OIR, they did so under a trade secret designation to

prevent public disclosure to the Debtor’s creditors.

The parties indeed submitted the initial Master Agreement

to FL-OIR with trade secret protections, but then they filed the final

Master Agreement with far fewer such protections. The evidence

shows that the FL-OIR heavily scrutinized the Master Agreement

before approving it. In fact, the FL-OIR rejected the parties’ initial

proposal and conditioned its approval on OR’s assumption of addi-

tional reinsurance liabilities beyond the parties’ initial proposal.

The parties then revised the Master Agreement to satisfy the FL-

OIR’s requests, leading to its ultimate approval of the Master

Agreement transaction. Additionally, the deeds for the real prop-

erty that the Debtor transferred to OR Title pursuant to the Master

Agreement were publicly recorded. See Crews v. Carwile (In re Da-

vis), 138 B.R. 106, 109 (Bankr. M.D. Fla. 1992) (finding that the

debtor’s transfer of revisionary interests in a mortgage was not

concealed because it appeared in the public records). Thus, noth-

ing in the record demonstrates that the Debtor concealed the Mas-

ter Agreement transaction from its creditors or the public.

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26 Opinion of the Court 23-10850

ii. The Creditor Trustee failed to establish that OR Title was

an insider.

Insider status, another badge of fraud, is one of the most se-

rious indications of fraud. Indeed, a court may find that an insol-

vent debtor’s transfer to an insider constituted a fraudulent transfer

even if no other badges of fraud exist. See In re Toy King Distribs.,

Inc., 256 B.R. at 128–29. A corporation may qualify as an insider of

another corporation by statute or if the two entities share a close

relationship. Gen. Trading Inc. v. Yale Materials Handling Corp., 119

F.3d 1485, 1499 (11th Cir. 1997). An example of a close relationship

between corporations is when both corporations are under the

control of the same officers and directors. In re Toy King Distribs.,

256 B.R. at 128.

The Creditor Trustee contends that OR Title qualifies as an

insider. In support of this proposition, he relies upon In re Florida

Fund of Coral Gables, an unpublished opinion in which we recog-

nized that “[t]he cases which have considered whether insider sta-

tus exists generally have focused on two factors in making that de-

termination: (1) the closeness of the relationship between the

transferee and the debtor; and (2) whether the transactions be-

tween the transferee and the debtor were conducted at arm’s

length.” See Mia. Police Relief & Pension Fund v. Tabas (In re Fla. Fund

of Coral Gables, Ltd.), 144 F. App’x 72, 75 (11th Cir. 2005) (quoting

Browning Ints. v. Allison (In re Holloway), 955 F.2d 1008, 1011 (5th Cir.

1992)). The transferee in In re Florida Fund of Coral Gables received

the disputed transfers by coercing the debtor’s principal—a long-

time associate of the transferee—into making payments after the

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23-10850 Opinion of the Court 27

transferee discovered that the debtor was engaged in a Ponzi

scheme. Id. at 73–74.

Such a relationship does not exist between the Debtor and

OR Title. The Debtor and OR Title have always had separate own-

ership. The Trust controlled the Debtor, whereas OR Holding con-

trolled OR Title. In addition, both the Debtor and OR Title were

represented by separate counsel during the Master Agreement ne-

gotiations. The Debtor considered the SOBC’s offer in conjunction

with OR Title’s proposal, and the Debtor’s independent board of

directors chose to enter into the Master Agreement. Thus, nothing

in the record shows that the OR Defendants coerced the Debtor

into entering the Master Agreement. Rather, the evidence demon-

strates that the Debtor and OR Defendants had a well-documented

business relationship and conducted the Master Agreement trans-

action at arms’ length.

iii. The Creditor Trustee failed to meet his burden of proof re-

garding the Debtor’s exchange for reasonably equivalent

value.

A third badge of fraud is the debtor’s failure to receive rea-

sonably equivalent value in exchange for transferring an asset. The

concept of reasonably equivalent value in § 726.105(2)(h) does not

require an exact dollar amount in exchange for property. Crumpton

v. Stephens (In re Northlake Foods, Inc.), 715 F.3d 1251, 1257 (11th Cir.

2013). Instead, courts may review the totality of the circumstances

in determining whether a debtor received reasonably equivalent

value in exchange for a transfer it made or an obligation it incurred.

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28 Opinion of the Court 23-10850

Off. Comm. of Unsecured Creditors v. State of Florida (In re Tower Env’t,

Inc.), 260 B.R. 213, 225 (Bankr. M.D. Fla. 1998). The party challeng-

ing the transfer has the burden of proving reasonably equivalent

value, Nordberg v. Arab Banking Corp. (In re Chase & Sanborn Corp.),

904 F.2d 588, 593–94 (11th Cir. 1990), and the party must establish

that the transfer was fraudulent by a preponderance of the evi-

dence. O’Halloran v. Harris Corp. (In re Teltronics), 540 B.R. 481, 485

(Bankr. M.D. Fla. 2015).

The parties do not dispute that the Debtor held a contingent

right in the title plant conditioned upon the occurrence of certain

events that had not occurred as of the Master Agreement transac-

tion date. The Debtor could not have transferred absolute rights

to the title plant to OR Title when it held only a contingent right.

See Chase & Sanborn Corp., 904 F.2d at 593–94 (explaining that “[i]t

is well established . . . that a contingent liability cannot be valued

at its potential face amount; rather, it is necessary to discount it by

the probability that the contingency will occur and the liability be-

come real” (internal citation and quotation marks omitted)). Even

so, the Creditor Trustee introduced evidence of the overall value

of the title plant and failed to present evidence regarding the value

of the Debtor’s contingent right to the title plant. Thus, because

the Creditor Trustee failed to present evidence on the Debtor’s

contingent right to the title plant, he failed to meet his burden of

proof on its value. See, e.g., Pettie v. Ringo (In re White), 559 B.R.

787, 802 (Bankr. N.D. Ga. 2016) (finding that “the chance of [the

d]ebtor receiving title to the [property] was remote” and, thus, the

trustee failed to carry his burden to prove that the debtor

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23-10850 Opinion of the Court 29

transferred a contingent interest in the property for less than rea-

sonably equivalent value); In re Teltronics, 540 B.R. at 485–87 (find-

ing that the trustee failed to establish the value of the debtor’s

waiver of right to block a patent portfolio sale where the trustee

presented evidence of the value of the patent portfolio as a whole,

which the debtor did not own).

Further, the Creditor Trustee’s evidence of the value of the

Debtor’s intangible assets had material flaws. For example, the

Creditor Trustee’s valuation included assets that the Debtor no

longer owned at the time of the Master Agreement. For instance,

the $80 million valuation included workforce that the Debtor trans-

ferred to ATFS in 2009 pursuant to the joint venture agreement.

Additionally, the $80 million valuation of the Debtor’s assets in-

cluded the title plant and the trademarks. However, the Debtor

transferred the trademarks to the Trust, and the Trust—not the

Debtor—transferred those assets to OR Title. Further, the $80 mil-

lion valuation did not account for the Debtor’s discounted right to

the title plant.

Ultimately, we are left with the tangible assets that OR Title

and the Debtor exchanged. The parties stipulated that the value of

the tangible assets that the Debtor transferred to OR Title was ap-

proximately $47.5 million. In exchange for the Debtor’s assets, OR

Title assumed the Debtor’s title insurance liabilities which the

bankruptcy court valued within a range of $45 million to $57.2 mil-

lion. Thus, the Creditor Trustee failed to meet his burden of prov-

ing that the assets that the Debtor transferred to OR Title were

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30 Opinion of the Court 23-10850

worth more than the liabilities that OR Title assumed in exchange

for the assets. See In re Northlake Foods, Inc., 715 F.3d at 1255.

iv. The Debtor transferred its assets to OR Title for a legiti-

mate purpose.

Lastly, we may not presume a debtor had actual intent to

defraud its creditors when it had “legitimate or independent” rea-

sons for transferring assets. See In re Stewart, 280 B.R. at 283. The

Debtor transferred its assets pursuant to the Master Agreement for

the legitimate purpose of reinsuring its title policy insurance liabil-

ities. After scrutinizing the Master Agreement, the FL-OIR deter-

mined that it was in the best interest of the Debtor’s policyholders

and approved it.

Thus, based on the record before it and the totality of the

circumstances, the bankruptcy court did not err in finding that the

Creditor Trustee did not prove the Debtor acted with actual intent

to defraud its creditors. Accordingly, the record does not support

a finding that the Master Agreement transaction constituted a

fraudulent transfer.8

8 Prior to trial, the bankruptcy court issued a discovery order, finding that the

Creditor Trustee had established a prima facie case for fraudulent intent. The

discovery order compelled OR Defendants’ counsel during the Master Agree-

ment negotiations to produce privileged communications and documents un-

der the crime-fraud exception to attorney-client privilege. On appeal, the

Creditor Trustee argues that the bankruptcy court’s crime-fraud ruling is ir-

reconcilable with its summary judgment order finding that he failed to satisfy

his burden of proving that the Master Agreement constituted a fraudulent

transfer. The Creditor Trustee’s argument is unpersuasive because the

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23-10850 Opinion of the Court 31

C. The Bankruptcy Court Did Not Err in Granting Summary Judg-

ment in OR Defendants’ and ATFS’s Favor on the Creditor Trus-

tee’s Successor Liability and Alter Ego Claims

i. Successor Liability Claim

Under Florida law, a successor corporation does not assume

its predecessor’s liabilities unless (1) the successor assumes the ob-

ligations of its predecessor, (2) the transaction is a de facto merger,

(3) the successor merely continues its predecessor’s business, or (4)

its transactions are intended to defraud and avoid its predecessor’s

liabilities. Bernard v. Kee Mfg. Co., 409 So. 2d 1047, 1049 (Fla. 1982).

The Creditor Trustee argues that summary judgment on his

successor liability claim was inappropriate, whether analyzed as a

de facto merger or under a mere continuation theory. A de facto

merger is when one entity absorbs another without adhering to the

statutory requirements for a merger. Lab’y Corp. of Am. v. Pro. Re-

covery Network, 813 So. 2d 266, 270 (Fla. Dist. Ct. App. 2002). A

party seeking to establish that a de facto merger occurred must

show that (1) the two corporations share the same management,

personnel, assets, and physical location; (2) there is continuity of

ownership; (3) the predecessor corporation was dissolved; and

parties’ presentation of evidence during the trial demonstrated that the Debtor

transferred its assets for reasonably equivalent value. See Mejia v. Ruiz, 985

So.2d 1109, 1113 (Fla. Dist. Ct. App. 2008) (“The existence of badges of fraud

create a prima facie case and raise a rebuttable presumption that the transac-

tion is void.” (citation omitted)). During the trial and on summary judgment,

OR Defendants sufficiently rebutted the presumption that the Master Agree-

ment constituted a fraudulent transfer.

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32 Opinion of the Court 23-10850

(4) the successor corporation assumed the predecessor corpora-

tion’s liabilities. Amjad Munim, M.D., P.A. v. Azar, 648 So. 2d 145,

153–54 (Fla. Dist. Ct. App. 1994). The elements do not have to exist

at the same time for a de facto merger to occur. See id. at 154.

Under the mere continuation theory, the successor corpora-

tion is merely the predecessor corporation continued under a dif-

ferent name. Bud Antle, Inc. v. E. Foods, Inc., 758 F.2d 1451, 1458 (11th

Cir. 1985). Mere continuation occurs when two corporations have

a change in form but not in substance. In re All Sorts of Servs. of

Am., Inc., 631 B.R. 63, 72 (Bankr. M.D. Fla. 2021). One key element

is the new corporation will have a common identity, marked by the

same officers, directors, and stockholders that were a part of the

predecessor corporation. Bud Antle, 758 F.2d at 1459. Ultimately,

the test for the existence of a de facto merger and mere continuation

“is whether each entity has run its own race, or whether, there has

been a relay-style passing of the baton from one to the other.”

Azar, 648 So. 2d at 154 (citation omitted).

Here, ATFS does not qualify as the Debtor’s successor in in-

terest under the de facto merger or mere continuation theories. The

Creditor Trustee satisfied only one of the four elements necessary

to show that a de facto merger occurred under the 2009 joint ven-

ture agreement. The parties do not dispute that under the 2009

joint venture agreement, 544 of the Debtor’s 568 employees, in-

cluding senior officers, became ATFS’s employees. Thus, the

Debtor and ATFS had the same management and personnel. See

id. at 153–54. Additionally, the two entities operated from the same

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23-10850 Opinion of the Court 33

physical location because ATFS leased the Debtor’s office space.

See id. However, the Debtor and ATFS did not have the same assets.

Although the Debtor gave ATFS a copy of the title plant, licensed

its “The Fund” name to ATFS, and provided a majority of its work-

force to ATFS pursuant to the 2009 joint venture agreement, the

Debtor still retained its own assets valued at approximately $240

million. Thus, the Debtor and ATFS did not share the same assets

following their execution of the 2009 joint venture agreement. 9 See

id.

Further, the Debtor and ATFS did not share common own-

ership. See id. Although identical ownership is one way, among

others, to establish successor liability, some overlap of ownership

between the predecessor and successor corporations does not au-

tomatically confer successor liability. See id. at 154 (explaining that

“the new [company] is the old [company] dressed up with a new

name and controlled by the same [people]”). Here, the Trust

9 The Creditor Trustee relies on Murphy & King Pro. Corp. v. Blackjet, Inc., No.

13-80280-CIV-HURLEY, 2016 WL 3017224, at *5 (S.D. Fla. May 26, 2016), to

argue that Florida law does not require that two corporations have the same

assets to establish successor liability. The Creditor Trustee contends that Flor-

ida law only requires a sufficient overlap of assets to establish successor liabil-

ity. The Creditor Trustee is correct. See id. (finding that “for all practical pur-

poses” there had been a transfer in assets despite no actual transfer taking

place). However, Murphy is distinguishable from the current case. In Murphy,

the Debtor’s predecessor ceased operations entirely and dissolved itself after

transferring its assets. Id. Here, the Debtor maintained $240 million in assets

and continued to operate after transferring its other assets. Thus, ATFS and

the Debtor did not de facto merge assets from one entity to another as the pre-

decessor entity shuttered its operations.

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34 Opinion of the Court 23-10850

wholly owned the Debtor and, following the 2009 joint venture

agreement, the Debtor and OR Holding owned ATFS. The two

were only briefly on equal footing. The 2011 amended joint ven-

ture agreement converted the Debtor’s ownership shares in ATFS

into governance-only shares, giving OR Holding all the financial

rights to ATFS. In addition to the financial rights, OR Holding at-

tained a call option, which gave it the right to acquire the Debtor’s

governance-only shares. In January 2016, OR Holding exercised

that option and wholly divested the Debtor of all its ATFS shares.

Although OR Holding later transferred the shares to the Trust, the

Trust still did not have any financial rights to ATFS. So, although

the Debtor and the Trust had ownership in ATFS, neither held a

financial interest within ATFS. Thus, the Debtor did not “control”

ATFS, despite its common ownership.

Furthermore, the Debtor did not dissolve because of the

joint venture agreement. See id.at 153–54. The Debtor did not file

for bankruptcy until 2017—eight years after transferring assets to

ATFS under the 2009 joint venture agreement. Even though the

Debtor has ceased operations and is proceeding through the bank-

ruptcy process, the Debtor has not formally dissolved. See id. at

154 (finding that “the technical requirement of dissolution of the

predecessor corporation was not established” where the predeces-

sor medical professional association “had essentially ceased opera-

tions other than receiving accounts receivable” but had not for-

mally dissolved at the time of the bankruptcy proceedings).

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23-10850 Opinion of the Court 35

Also, ATFS did not assume a sufficient portion of the

Debtor’s liabilities to establish successor liability. See id. ATFS sub-

let the Debtor’s branch locations and directly leased space within

its Headquarters Building. The office spaces, however, represent a

small fraction of the Debtor’s tangible assets, which the parties

stipulated were worth approximately $47.5 million. As mentioned

previously, the Debtor retained approximately $240 million in as-

sets following the joint venture agreement. Thus, the Creditor

Trustee failed to establish successor liability under a de facto merger

theory.

Similarly, the Creditor Trustee failed to establish successor

liability under a mere continuation theory. See In re All Sorts of

Servs. of Am., 631 B.R. at 73. The Debtor and ATFS represented

separate and distinct entities. See Azar, 648 So. 2d at 154. Although

they operated similar businesses such as maintaining a copy of the

title plant, ATFS and the Debtor did not share common ownership

or the same assets, and ATFS did not assume a substantial portion

of the Debtor’s liabilities. ATFS is, thus, not a “mere continuation”

of the Debtor.

Accordingly, the bankruptcy court did not err in ruling that

the Creditor Trustee failed to establish successor liability.

ii. Alter Ego Claim

Under Florida law, an alter ego claim allows a creditor to

seek judgment against a debtor corporation or its related entities

when the debtor has attempted to mislead or defraud the creditor

by taking another corporate form. Webber v. Patel (In re Patel), 632

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36 Opinion of the Court 23-10850

B.R. 903, 911 (Bankr. M.D. Fla. 2021). Florida law does not distin-

guish between the alter ego/instrumentality theory and the doc-

trine of piercing the corporate veil. In re Homelands of DeLeon

Springs, Inc., 190 B.R. 666, 670 (Bankr. M.D. Fla. 1995). A party

seeking to pierce the corporate veil must prove by a preponderance

of the evidence that (1) the shareholder controlled the corporation

such that there was no true distinction between the shareholder

and the corporation—the two were alter egos, (2) the corporate al-

ter ego was used improperly, and (3) its improper use harmed cred-

itors. Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1349

(11th Cir. 2011). Generally, Florida courts will not pierce the cor-

porate veil “absent proof of fraud or ulterior motive by the share-

holder[.]” In re Homelands of DeLeon Springs, 190 B.R. at 670 (cita-

tion omitted).

Here, the Creditor Trustee failed to establish an alter ego

claim because he satisfied only one of the three elements necessary

to pierce the corporate veil. See In re Patel, 632 B.R. at 912. The

bankruptcy court properly found that a genuine issue of material

fact existed as to the first element—whether OR Holding “domi-

nated and controlled” ATFS. The parties disagreed as to whether

OR Holding controlled ATFS’s board of governors because ATFS’s

CEO—a board member—later became an OR Title employee,

providing OR Holding with a voting majority on the board. How-

ever, because the board of governors controlled ATFS’s business

operations, it is plausible that OR Holding controlled ATFS

through its voting majority on the board. Furthermore, following

the Master Agreement transaction, all of ATFS’s employees

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23-10850 Opinion of the Court 37

became OR Title’s employees. Thus, OR Holding arguably domi-

nated and controlled ATFS. See id. at 912.

Nevertheless, the Creditor Trustee failed to present evidence

that would support a finding that the Debtor and OR Holding

formed or operated ATFS for an improper purpose. See id. at 912.

The Debtor and OR Holding formed ATFS for the legitimate pur-

pose of providing ancillary support related to OR Title’s issuance

and maintenance of new title policies. Although OR Holding and

ATFS shared a bank account and commingled funds in that ac-

count, nothing in the record shows that they used the bank account

to divert funds from creditors or perpetrate a fraudulent scheme.

See Robertson-Ceco Corp. v. Cornelius, No. 3:03cv475/RV/EMT, 2007

WL 1020326, at *5 (N.D. Fla. Mar. 30, 2007) (“Under Florida law,

[commingling funds] is not enough” to pierce the corporate veil

“unless it is proven that such actions were undertaken specifically

for an improper purpose.” (emphasis omitted)); Hillsborough Hold-

ings Corp. v. Celotex Corp. (In re Hillsborough Holdings Corp.), 166 B.R.

461, 469–71 (Bankr. M.D. Fla. 1994) (collecting cases that stand for

the proposition that lack of corporate formalities, absent a showing

of deliberate misconduct, is insufficient to establish improper use

of the corporate form).

Furthermore, the Creditor Trustee failed to show that any

alleged improper use of ATFS’s corporate form injured the

Debtor’s creditors. See In re Patel, 632 B.R. at 912. As the bank-

ruptcy court accurately noted, most of the claims filed in the

Debtor’s bankruptcy case related to the title policies and arose

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38 Opinion of the Court 23-10850

before it entered the 2009 joint venture agreement, such as closing

protection letters that it administered and other non-policy tort

claims. Even after formation of the joint venture, the Debtor con-

tinued to administer its existing title policies. See also PaeTec

Commc’ns, Inc., v. Bull (In re Bull), 528 B.R. 473, 493 (M.D. Fla. 2015)

(finding that a creditor could not have suffered harm where it failed

to establish an improper use of the corporate form); therefore, the

bankruptcy court did not err in granting summary judgment in OR

Defendants’ and ATFS’s favor because the Creditor Trustee did not

present sufficient evidence to prove that ATFS really was just the

OR Defendants’ alter ego, thus rendering them liable to the

Debtor’s creditors.

III. CONCLUSION

Based on the foregoing, we AFFIRM the district court’s or-

der affirming the bankruptcy court’s judgment.