Crocker v. Braid Electric Co. (In re Arnold)

908 F.2d 52, 116 B.R. 52, 23 Collier Bankr. Cas. 2d 493, 1990 U.S. App. LEXIS 11434
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 11, 1990
DocketNo. 89-6085
StatusPublished
Cited by4 cases

This text of 908 F.2d 52 (Crocker v. Braid Electric Co. (In re Arnold)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crocker v. Braid Electric Co. (In re Arnold), 908 F.2d 52, 116 B.R. 52, 23 Collier Bankr. Cas. 2d 493, 1990 U.S. App. LEXIS 11434 (6th Cir. 1990).

Opinion

JOINER, Senior District Judge.

On May 21, 1987, Arnold’s Electric Company and its partners, Mitchell and Kathy Arnold, filed a petition for bankruptcy pursuant to Chapter 7 of the Bankruptcy Act, 11 U.S.C.A. §§ 701, et seq. (West 1979 & Supp.1990). Samuel Crocker was appointed trustee (Trustee) for the estate, and on October 28, 1987, the Trustee filed a complaint against Braid Electric Company (Braid) alleging that certain monies paid to Braid after the Chapter 7 petition was filed were property of the estate and should be turned over to the Trustee. After conducting a trial on stipulated facts, the bankruptcy court held for the Trustee, and this decision was affirmed by the district court. Braid now appeals.

I.

In 1986, the State of Tennessee entered into a contract with the J. Harold Shankle Construction Company (Shankle) for the renovation of the Middle Tennessee State University Alumni Building (the Project). Subsequently, Shankle and Arnold’s Electric Company (Arnold) executed a subcontract whereby Arnold would perform the electrical work on the project. Arnold, in turn, obtained necessary materials from Braid pursuant to an open account between them. There was no contract between Shankle and Braid.

On May 18, 1987, Shankle gave telegraphic notice of default under the subcontract to Arnold for a failure to adequately staff the project. When Arnold did not respond to the notice, Shankle took over Arnold's work on the project on May 19, and Shankle deemed the subcontract [54]*54terminated as of May 20.1 On May 21, 1987, Arnold filed its petition for bankruptcy. At this time, $61,756.14 had been earned by Arnold under the subcontract with Shankle. Of this amount, ten percent ($6,175.61) was held as retainage pursuant to Section 4 of the subcontract. The balance of $55,580.55 represented money (progress payments) owed to Arnold pursuant to its completed progress on the project. As of that same date, Arnold was indebted to Braid in the amount of $69,-820.84, for materials supplied by Braid to Arnold for the project.

On May 22, 1987, Shankle issued two checks to Braid in the amounts of $18,-294.11 and $43,462.03. At this point in time, neither Shankle nor Braid was aware of Arnold’s having filed a bankruptcy petition. Shankle’s payments to Braid were made in a manner consistent with Shan-kle’s prior experience on jobs in which materials suppliers had not been paid by subcontractors. These payments were due to Arnold’s failure to pay Braid for materials used on the project, and Shankle wanted to avoid Braid filing a claim against the re-tainage or against the bond Shankle posted on the project. In addition, Shankle was obligated under Section 4.4.1 of its contract with the State of Tennessee to pay for materials purchased by its subcontractors on the project. Section 4.4.1 provides:

Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for all labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work.

In its findings of fact and conclusions of law, the bankruptcy court, relying upon In re Universal Builders, Inc., 53 B.R. 183, 186 (Bankr.M.D.Tenn.1985), held that unpaid progress payments held by the contractor on construction projects are the property of the estate of a bankrupt subcontractor, but retainage held by the contractor is not. Consequently, pursuant to 11 U.S.C.A. §§ 549 and 550 (West 1979 & Supp.1990), the court held that the trustee could recover unpaid progress payments due Arnold from a post-petition initial transferee of these funds. The bankruptcy court concluded that of the $61,756.14 Shankle paid to Braid, $55,550.55 constituted progress payments earned by Arnold on the project.2 Since Braid was the initial transferee of these funds, the trustee could recover this amount from Braid. The conclusion by the bankruptcy court concerning the nature of the funds paid to Braid was based on the following finding:

Braid, as transferee of the progress payments owed to the Debtor, is required to turn these payments over to the Trustee. The Court finds that the evidence was insufficient to prove that there was an independent agreement between Braid and Shankle. Braid’s claim against Shankle for funds arose only because of the Debtor’s relationship with Shankle. Proof did not show that the contract between Shankle and the Debtor had been effectively terminated and replaced by a new contract between Shankle and Braid. In fact, the funds paid under the “independent contract” were identical to the total of progress payments and re-tainage funds owed by Shankle to the Debtor.

The bankruptcy court also rejected setoff and recoupment arguments made by Braid, holding that Braid had no standing to assert these defenses. The district court affirmed this decision.

II.

Braid argues that funds paid to it by Shankle do not represent Arnold’s property that Shankle transferred to Braid but, [55]*55rather, Shankle’s own funds paid under an independent obligation Shankle owed to Braid. Since these funds are not the property of the Arnold estate, the Trustee cannot recover the funds from Braid under the Bankruptcy Act. The Trustee responds that the bankruptcy court correctly found that Shankle paid Braid the progress payments earned by Arnold, plus the retain-age, and that he may recover from Braid that part of the funds which represents the unpaid progress payments ($55,580.55).

A trustee may avoid a transfer of property of the bankrupt party’s estate that occurs after the filing of a bankruptcy petition. 11 U.S.C.A. § 549(a) (West Supp. 1990). If avoidance is appropriate under section 549, the trustee can recover the property from the initial transferee of the property. 11 U.S.C.A. § 550(a)(1) (West 1979). It is not disputed that Shankle’s payments to Braid occurred after Arnold filed for bankruptcy, and that Braid was an “initial transferee” of these payments as defined under the Bankruptcy Act. The critical question is whether $55,580.55 of the amount paid to Braid constitutes property of Arnold. The bankruptcy court concluded that it does, based upon its factual finding that Shankle’s debt to Braid arose solely out of Arnold’s relationship with Shankle. This factual finding can be set aside by this court only if it is clearly erroneous. Knoxville Teachers Credit Union v. Parkey, 790 F.2d 490, 491 (6th Cir.1986); Fed.R.Bankr.P.8013. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire record, is left with the definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948).

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Bluebook (online)
908 F.2d 52, 116 B.R. 52, 23 Collier Bankr. Cas. 2d 493, 1990 U.S. App. LEXIS 11434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crocker-v-braid-electric-co-in-re-arnold-ca6-1990.