Butler MacHinery, Inc. v. Haugen (In Re Haugen Construction Services, Inc.)

104 B.R. 1013, 1989 WL 105910
CourtDistrict Court, D. North Dakota
DecidedSeptember 15, 1989
DocketBankruptcy No. 85-05321, Adv. No. 88-7083
StatusPublished
Cited by6 cases

This text of 104 B.R. 1013 (Butler MacHinery, Inc. v. Haugen (In Re Haugen Construction Services, Inc.)) is published on Counsel Stack Legal Research, covering District Court, D. North Dakota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler MacHinery, Inc. v. Haugen (In Re Haugen Construction Services, Inc.), 104 B.R. 1013, 1989 WL 105910 (D.N.D. 1989).

Opinion

ORDER

CONMY, Chief Judge.

The above-entitled matter before the court is a review of the Bankruptcy Court’s report and recommendation issued in the adversary proceeding referenced above. The Defendants have submitted objections to the report and recommendation which recommended that the Defendants Gary Haugen and Minot Sand and Gravel, Inc., be found jointly and severally liable for all the debts of Debtor Haugen Construction Services, Inc., based upon a “piercing the corporate veil” theory.

The court’s review of the Bankruptcy Court’s report and recommendation is de novo. See Federal Bankruptcy Rule 9033(d). After thoroughly reviewing the record in this matter, it is the finding of this court that the Bankruptcy Courts report and recommendation is accepted in its entirety. There is ample support for the findings and conclusions set forth in the report and recommendation.

BASED UPON THE FOREGOING, IT IS HEREBY ORDERED THAT THE REPORT AND RECOMMENDATION OF THE BANKRUPTCY COURT IS ACCEPTED. LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION

WILLIAM A. HILL, Bankruptcy Judge.

The matter before the court is a class action adversary proceeding initiated by a Complaint filed June 22, 1988. The class consists of all of the unsecured creditors of Haugen Construction Services, Inc. (Debt- or). Butler Machinery, Inc. (Butler) is the Debtor’s main unsecured creditor. On January 30, 1985, Butler obtained a judgment against the Debtor which, with accrued interest, is approximately $821,159.00. In addition to Butler’s claim the Debtor’s schedule A-3 lists eleven other unsecured creditors with claims totalling $36,715.21. By its complaint the class seeks to hold Gary Haugen and the named defendant corporations of which he is a stockholder, liable for the debts incurred by the Debtor corporation, including Butler’s judgment. Gary Haugen is the sole stockholder of the Debtor. The class alleges that the defendants were alter egos of the Debtor. The bankruptcy case underlying this adversary was originally filed as a Chapter 11 case on June 3, 1985. On October 28, 1985, the bankruptcy court ordered an examiner appointed in the case. On May 22, 1986, the case was converted to a Chapter 7 proceeding. Much of the evidence introduced by the class at trial was highlighted in the January 13, 1986, examiner’s report. (Plaintiff’s exhibit 1.)

As discussed, infra, this court has concluded that it has jurisdiction over this adversary as a matter related to a case under Title 11. Section 157(c)(1) of United States Code Title 28 provides that when the parties have not consented to the bankruptcy court entering a final order for judgment the bankruptcy court shall submit proposed findings of fact and conclusions of law to the District Court for entry of *1015 final judgment. The following proposed findings and conclusions are hereby submitted to the District Court.

This case came on for trial on May 22, 1989. From the testimony and exhibits introduced at trial the court finds the following facts:

Findings of Fact

Gary Haugen has been involved in the gravel and construction businesses since 1970. He formed Haugen’s Construction Services as a sole proprietorship which operated in western North Dakota on road construction and oil well projects. The business involved a large amount of heavy equipment, some of which was collateral for debts owed by Haugen personally. On January 1,1981, Gary Haugen incorporated his business into Haugen Construction Services, Inc. All of the heavy equipment was transferred into the corporation, but the corporation did not assume all of the debts secured by the equipment. Gary Haugen was the sole shareholder of the corporation. The Debtor corporation did not at the time of its formation, or any time subsequently, issue any shares of stock. Nor was a board of directors ever elected, minutes kept, or any dividends declared. Hau-gen drew a salary from the Debtor for one year after its formation and then ceased drawing a salary.

Haugen was also involved in several other business enterprises. He was a fifty percent shareholder in Impact Rollers, Inc. Impact Rollers was formed to manage a patent on a piece of machinery developed by Haugen and another individual. Impact Rollers, Inc. also neglected to issue stock shares, elect a board of directors, keep minutes or declare any dividends.

Another of Gary Haugen’s enterprises was Haugen Development. This was a sole proprietorship used by Gary Haugen for his non-corporate ventures. During the time period relevant to this case the only independent business activity engaged in by Haugen Development was speculating in the precious metals market.

In February of 1982, Gary Haugen formed Minot Sand and Gravel, Inc. (Minot Sand). Like Haugen’s other corporations, Minot Sand did not issue stock, elect directors, keep minutes, or declare dividends. Minot Sand was formed to acquire the assets of Atlas Sand and Gravel (Atlas) including, among other things, real estate and heavy equipment. As part of the purchase transaction Minot Sand acquired the equipment free of liens. After the purchase the Debtor used this equipment to collateralize a loan. The Debtor did not purchase the equipment from Minot Sand before encumbering it. Haugen decided to acquire Atlas because it complimented his construction business in that the Debtor used large quantities of sand and gravel.

The purchase of Atlas was partially funded by the Debtor. The Debtor made a payment of $10,000.00 as an earnest money deposit and also made the $100,000.00 down payment required by the purchase contract at the time of the sale closing. (Plaintiff’s exhibits 27, 28.) The Debtor received no promissory notes from Minot Sand in exchange for these payments. Minot Sand financed another portion of the purchase price with the aid of a personal guarantee from Gary Haugen. Haugen received no type of indemnity agreement from the corporation for any liability arising from the guaranty. By December 31, 1982, Minot Sand had a negative net worth of $159,170. (Defendant’s exhibit 37.)

About one year after Minot Sand purchased Atlas it built an office building on real estate acquired in the purchase. Both Minot Sand and the Debtor maintained their administrative offices in this building. The Debtor paid no rent and there was no lease agreement between the corporations for the Debtor’s use of the building. Gary Haugen ran both corporations from these offices. One bookkeeper maintained the records for both companies. Haugen also acquired possession of a helicopter which he used to supervise and support distant projects for both the Debtor and Minot Sand. The Debtor paid for all of the fuel and maintenance associated with operating the helicopter. Minot Sand made no payments toward the expense of operating the helicopter. Although neither the Debtor *1016 nor Minot Sand owned the helicopter, neither corporation made any rental payments for its use.

At one point when creditors were undertaking collection actions against Minot Sand, Haugen deposited a $100,000.00 payment to Minot Sand for work on an air force base project into his personal Haugen Development account. He did this to shield it from Minot Sand’s creditors.

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Related

In Re Haugen
998 F.2d 1442 (Eighth Circuit, 1993)
Butler Machinery, Inc. v. Haugen (In re Haugen)
998 F.2d 1442 (Eighth Circuit, 1993)
Armstrong v. Pedie (In Re Dakota Drilling, Inc.)
135 B.R. 878 (D. North Dakota, 1991)
Haugen v. Butler MacHinery, Inc. (In Re Haugen)
120 B.R. 124 (D. North Dakota, 1990)

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Bluebook (online)
104 B.R. 1013, 1989 WL 105910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-machinery-inc-v-haugen-in-re-haugen-construction-services-inc-ndd-1989.