SE Property Holdings, LLC v. Braswell et al

Filing 136

ORDER finding as moot 122 Motion to Exclude Expert Witnesses; granting in part and denying in part 127 Motion in Limine; denying 128 Motion in Limine. Signed by District Judge William H. Steele on 10/13/17. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SE PROPERTY HOLDINGS, LLC,
Plaintiff,
v.
GEORGE S. BRASWELL, et al.,
Defendants.

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CIVIL ACTION 13-0267-WS-N

ORDER
This matter comes before the Court on plaintiff’s Motion to Exclude Expert Witnesses
(doc. 122), plaintiff’s Omnibus Motion in Limine (doc. 127) and defendants’ Motion in Limine
(doc. 128). All three Motions have been briefed and are now ripe for disposition. Each will be
considered in turn.
A.

Plaintiff’s Motion to Exclude Expert Witnesses.

Plaintiff, SE Property Holdings, LLC (“SEPH”), filed a Motion to Exclude Expert
Witnesses (doc. 122), whereby it seeks to exclude Mark Pawlowski, Thomas Bealle, Sam
McKerrall and Scott Raley from offering expert opinions at trial. As to Pawlowski (who is
defendants’ CPA), plaintiff asserts that his opinions concerning George Braswell’s solvency vel
non at the time of the challenged transfers (and the related “unreasonably small” issue) are no
longer necessary given the Court’s summary judgment ruling that Braswell was, in fact,
insolvent. As for Bealle, McKerrall and Raley, plaintiff maintains that exclusion of their
opinions is appropriate because (i) defendants never disclosed them as experts, and (ii) their
testimony would bear only on the already-decided question of insolvency, in any event. In their
Response, defendants state that in light of the Court’s Orders entered on June 6, 2017 and July 7,

2017 (docs. 120, 121), “the Braswells do not intend to call any expert witnesses at trial.” (Doc.
125, at 2.) Accordingly, SEPH’s Motion to Exclude Expert Witnesses is moot.1
B.

Plaintiff’s Omnibus Motion in Limine.

Next, the Court turns to SEPH’s Omnibus Motion in Limine (doc. 127). That Motion
consists of the following four components: (i) exclusion of evidence or argument relating to the
Bama Bayou action in state court; (ii) exclusion of evidence or argument relating to other
litigation involving SEPH or its predecessor (Vision Bank) but not involving George Braswell;
(iii) exclusion of evidence or argument relating to Mrs. Braswell’s successful efforts to obtain
title insurance for the transferred real property; and (iv) exclusion of evidence or argument
relating to certain traumatic incidents involving the Braswells’ family members (such as
premature births or a March 2016 automobile accident). In response, the Braswells state that
they do not oppose the Motion in Limine as to subparts two (other SEPH/Vision Bank litigation
not involving the Braswells) and three (title insurance), and that they do not intend to present
evidence or argument relating to those matters. As such, the Motion in Limine is properly
granted as to those subparts.
With respect to the Bama Bayou action, SEPH’s objection is that such evidence is not
relevant given the Court’s findings of a debtor/creditor relationship and Braswell’s insolvency.
According to SEPH, allowing the Braswells to argue or develop their Bama Bayou contentions at
trial here would be irrelevant and would lead to unfair prejudice and confusion of the issues, and
would mislead the jury and waste time. SEPH also expresses concern that “[a]ny evidence or
argument regarding the facts and issues of the Bama Bayou case is the start of a slippery slope
1

The Court recognizes, of course, that Count One (plaintiff’s claim for actual
fraudulent transfer pursuant to Alabama Code § 8-9A-4(a)) remains pending. For purposes of
evaluating whether Braswell made the challenged transfers with the actual intent to injure, delay
or defraud SEPH or other creditors, the jury will be instructed to consider certain badges of fraud
enumerated in § 8-9A-4(b). Among those badges of fraud is whether “[t]he debtor was insolvent
or became insolvent shortly after the transfer was made.” The jury is entitled to consider that
factor; however, there is no need for expert testimony to be presented by either side on that issue
at trial. After all, “the June 7 Order found that Braswell was insolvent, as a matter of law, as a
result of the challenged transfers.” (Doc. 121, at 2.) The Court will consider any proposed jury
instruction the parties may submit incorporating that specific finding of insolvency and directing
the jury that Braswell was insolvent (i.e., that the sum of his debts was greater than all of his
assets at a fair valuation) as of March 19, 2009.

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that can and should be avoided at trial,” lest these proceedings devolve into a “mini-trial of the
Bama Bayou case.” (Doc. 127, at 2-3.) For their part, the Braswells counter that SEPH has
listed numerous exhibits in the Joint Pretrial Document that relate solely to “the value of Mr.
Braswell’s assets and liabilities.” (Doc. 133, at 2-3.) Under the circumstances, the Braswells
say, it would be unfair and prejudicial “to exclude any evidence of Mr. Braswell’s understanding
or belief as to the values of the property at issue,” which evidence is “very material and probative
on the issue of his intent at the time he made the transfers.” (Id. at 5.)
Defendants’ point is well taken. Again, a critical triable issue in this case is whether
Braswell transferred the subject assets to his wife “with actual intent to hinder, delay, or defraud
any creditor.” Ala. Code § 8-9A-4(a). Braswell’s subjective understanding of the relative
valuation of his assets and liabilities as of March 2009 is directly relevant to the issue of his
intent. Insofar as plaintiff’s Motion in Limine seeks an order categorically excluding such
evidence, that Motion is denied. Defendants will be allowed some leeway at trial to present
evidence of what Braswell subjectively believed the value of his assets and liabilities to be. That
evidence may touch upon the Bama Bayou action (i.e., what Braswell believed his potential
liability and exposure might be in that action, whether he thought the value of the mortgaged
collateral was sufficient to offset any liability he might have, and so on). If Braswell so testifies,
then plaintiff must be allowed to test and rebut Braswell’s statements concerning his beliefs and
understandings via cross-examination and impeachment. To that end, SEPH will be afforded a
limited opportunity to present contrary evidence as to these matters to show that Braswell could
not plausibly have held the bona fide, honest beliefs he professes to have on these questions.
Both sides are cautioned, however, that the Court has no intention of trying the Bama Bayou case
here. The evidence and arguments offered must be narrowly tailored to the issue of Braswell’s
intent at the time of the transfers. Should the parties go too far afield with Bama Bayou-related
arguments and evidence, the Court will not hesitate to sustain Rule 403 objections or to intervene
proactively to cut off these lines of questioning, argument and evidentiary presentation in the
jury’s presence should they become excessive or belabored.
With respect to the Braswells’ family circumstances, SEPH posits that evidence of
prematurely born grandchildren or severe automobile accidents is irrelevant to the issue of
Braswell’s intent and would constitute an improper ploy to appeal to jurors’ sympathy.
Defendants respond that if SEPH chooses to raise the issue that the Braswells sold their home in

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Baldwin County and moved to Birmingham, then defendants should be allowed to explain why,
and the reasons for that move correspond to the aforementioned family issues. It is not
immediately clear why SEPH would want to elicit testimony about the Braswells’ relocation to
north Alabama, much less how it would attempt to argue some adverse inference resulting from
same. Without additional context not presented in the parties’ filings, the Court cannot evaluate
the parties’ respective arguments on these points. Accordingly, this aspect of the Motion in
Limine is carried to trial.
C.

Defendants’ Motion in Limine.

Finally, the Court examines the Braswells’ Motion in Limine (doc. 128). In that Motion,
they seek an order barring SEPH from introducing or mentioning documents, charts, graphs or
other materials showing the value of George Braswell’s assets and liabilities at any time.
Defendants also seek an order prohibiting SEPH from attempting to litigate in this case whether
George Braswell is or is not liable in the Bama Bayou case. A side-by-side comparison of the
Braswells’ Motion in Limine and their Response (doc. 133) to SEPH’s Omnibus Motion in
Limine shows that defendants are attempting to have it both ways. On the one hand, the
Braswells are arguing that they should be allowed to present evidence of George Braswell’s
beliefs and impressions of the value of his assets and liabilities, his exposure in the Bama Bayou
action, and so on, as evidence of his intent (or lack thereof) to defraud SEPH via the subject
transfers. On the other hand, defendants seek to preclude SEPH from presenting any evidence as
to the value of Braswell’s assets and liabilities, or his potential liability in the Bama Bayou
action. Of course, such evidence may be highly probative of whether Braswell’s stated beliefs
about assets and liabilities were honest and bona fide. As discussed supra, the Court will not
categorically constrain SEPH from being able to present impeachment or rebuttal evidence of
assets and liabilities that relates to the issue of Braswell’s actual intent to defraud.2 Defendants’
Motion in Limine is denied.
2

SEPH argues in response to the Braswells’ Motion in Limine that it should be
allowed to present evidence of assets and liabilities to show that George Braswell was insolvent
because insolvency is a badge of fraud under the Alabama UFTA. (Doc. 132, at 2.) As
discussed supra, however, the Court has already found as a matter of law on summary judgment
that George Braswell was insolvent as of March 19, 2009. There is no need for SEPH to present
evidence of that badge of fraud at trial; rather, the jury can simply be instructed of that
insolvency finding. Nonetheless, it would be appropriate for SEPH to present valuation evidence
(Continued)
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D.

Conclusion.

For all of the foregoing reasons, it is ordered as follows:
1.

Plaintiff’s Motion to Exclude Expert Witnesses (doc. 122) is moot;

2.

Plaintiff’s Omnibus Motion in Limine (doc. 127) is granted as to the “other
litigation not involving the Braswells” and “title insurance” issues. That Motion
is denied as to evidence or argument relating to the Bama Bayou action, provided,
however, that both sides will be afforded limited leeway to present evidence about
that matter only insofar as it is relevant to the question of Braswell’s intent at the
time of the subject transfers. The aspect of the Motion seeking to bar the
Braswells from introducing evidence of certain family hardships is carried to
trial; and

3.

Defendants’ Motion in Limine (doc. 128) is denied.

DONE and ORDERED this 13th day of October, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

at trial to impeach or rebut any testimony that George Braswell subjectively believed his assets
to exceed his liabilities (and thus believed that he would be able to pay any liability owed to
SEPH) for purposes of the “actual intent” inquiry.

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