Fischer v. Brancato

174 S.W.3d 82, 2005 Mo. App. LEXIS 1611, 2005 WL 2746397
CourtMissouri Court of Appeals
DecidedOctober 25, 2005
DocketED 86014
StatusPublished
Cited by5 cases

This text of 174 S.W.3d 82 (Fischer v. Brancato) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fischer v. Brancato, 174 S.W.3d 82, 2005 Mo. App. LEXIS 1611, 2005 WL 2746397 (Mo. Ct. App. 2005).

Opinion

*84 NANNETTE A. BAKER, Presiding Judge.

Donald H. Braneato (“Debtor”), Georgia Brancato (“Wife”), Donald H. Brancato, Inc. (“DHBI”) and North County Ortho-paedics, Inc. (“NCOI”) appeal from a final judgment of the trial court in favor of Ronald J. Fischer (“Fischer”). We find no error and affirm. 1

Background

This is the second time this case has been before this court. In an August 2004 opinion, we determined that the trial court erred when it held that Fischer failed to prove a fraudulent transfer by Debtor under the Missouri Uniform Fraudulent Transfer Act (“MUFTA”) Section 428.005-.059 2 and we held that Fischer was entitled to the relief provided by MUFTA. Fischer v. Brancato, 147 S.W.3d 794, 800 (Mo.App. E.D.2004). The evidence as set forth in that opinion is as follows: On February 2, 1996, the Circuit Court of the City of St. Louis entered a judgment in favor of Fischer and against Debtor, in the amount of $165,525.64. Since then, Fischer has attempted to collect said judgment, but Debtor has avoided payment of the monies by transferring the income he would have earned for his professional services as an orthopedic surgeon to Wife, through the use of the corporate defendants, DHBI and NCOI, effectively rendering himself “judgment proof.”

On June 4, 2001, Fischer filed a petition in St. Louis County alleging a civil conspiracy to engage in a fraudulent conveyance and civil conspiracy to tortiously interfere with his judgment lien. Following a bench trial in equity, the trial court found that there was no proof of a transfer made directly by Debtor and that the lack of proof defeated liability under MUFTA. In its judgment of May 3, 2003, the trial court also sustained Debtor’s objection that Fischer failed to properly plead that he was seeking to pierce the corporate veil of DHBI and NCOI, and held that Fischer failed to sufficiently demonstrate by the facts adduced at trial that DHBI or NCOI were the alter egos of Debtor. Fischer then filed a motion for reconsideration and to amend the judgment. The trial court denied both motions.

Fischer filed an appeal, arguing in his sole point that the trial court erred in holding that he had failed to prove a fraudulent transfer by Debtor, and that this failure defeated liability under MUFTA. This court agreed. We held that because Fischer sufficiently pleaded and tried his cause of action for conspiracy to engage in a fraudulent conveyance under MUFTA, he was entitled to the relief it provides, regardless of whether he pleaded piercing the corporate veil or alter ego as separate causes of action. Brancato, 147 S.W.3d at 800. Moreover, it was not necessary to hold the other defendants liable for Debt- or’s debt in order to void the transfers of Debtor’s income to DHBI, NCOI and/or Wife such that Fischer could be permitted to collect his judgment. Id. The opinion concluded that:

It is absolutely apparent from Creditor’s petition, which was supported by overwhelming evidence at trial, that Debtor and Wife conspired to fraudulently convey, through the use of the corporate defendants DHBI and NCOI, the income Debtor would have received for his *85 professional services as an orthopedic surgeon. Debtor did this “with an intent to hinder, delay and defraud” [Fischer] of his obligations under the February 1996 judgment. As such, all of the income Debtor would have earned for his professional services as an orthopedic surgeon in his medical practice since [Fischer] obtained the February 2, 1996 judgment, which we find was fraudulently conveyed to Wife, DHBI and/or NCOI, shall be retransferred back to Debtor personally such that [Fischer] is able to collect his judgment from that income.

The case was reversed and remanded for further proceedings consistent with the opinion.

On February 11, 2005, the trial court entered an amended judgment as follows:

1. Per Section 428.039.1(1), Wife, [DHBI], a Missouri corporation, and [NCOI], a Missouri corporation, shall herein retransfer back to Defendant, [Debtor], personally, all income earned from performance of his professional services in his medical practice as an orthopedic surgeon since February 2, 1996, in amounts adequate for Plaintiff, [Fischer], to collect from these monies a sufficient sum from which to satisfy in full his Judgment entered in his favor and against [Debtor], in the amount of $165,525.64, together with all post-judgment interest accrued on said Judgment as allowed by law;
2. Per Section 428.039.1(2), Plaintiff [Fischer] may attach or levy execution against any asset of [Debtor’s] transferred or the proceeds of that asset of Defendants, Wife, [DHBI] and [NCOI] jointly and severally, in order to satisfy in full the Judgment in favor of [Fischer] and against [Debtor] in the amount of $165,525.64, together with all post-judgment interest accrued on said Judgment as allowed by law;
3. Per Section 428.039.1(3)(a), Defendants Wife, [DHBI] and [NCOI] are enjoined from further disposition of any asset transferred or of any other property of Defendants until said Judgment in favor of Plaintiff [Fischer] and against Defendant [Debtor] in the amount of $165,525.64, together with all post-Judgment interest accrued on said Judgment as allowed by law, is satisfied in full;
4. Per Section 428.039.1(3)(c), the [e]ourt grants any other relief the circumstances may require to enable the Judgment in favor of Plaintiff [Fischer] and against Defendant [Debtor] in the amount of $165,525.64, together with all post-Judgment interest accrued on said Judgment as allowed by law, to be satisfied in full.

Debtor now appeals the trial court’s amended judgment, claiming that the trial court erred in entering its amended judgment because it was a general judgment and not in accordance with the appellate opinion. In his sole point relied on, Debt- or asserts that since Fischer had not pleaded “piercing the corporate veil”, that our opinion limited Fischer’s recovery to an order retransferring the income received by Debtor and fraudulently conveyed to DHBI, NCOI and/or Wife. Debt- or claims that the trial court’s judgment on remand expanded the holding of this court.

Standard of Review

A trial court must render judgment in accordance with the mandate of the appellate court. Ironite Products Co., Inc. v. Samuels, 17 S.W.3d 566, 570 (Mo. *86 App. E.D.2000). However, the mandate is not to be read and applied in a vacuum. Id. The appellate court’s opinion is part of the mandate and must be used in interpreting the mandate. Id. Accordingly, proceedings on remand should be in accordance with the mandate and the result contemplated in the appellate court’s opinion. Id.

The law of the case doctrine governs successive appeals involving the same issues and facts. Id. at 571.

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Cite This Page — Counsel Stack

Bluebook (online)
174 S.W.3d 82, 2005 Mo. App. LEXIS 1611, 2005 WL 2746397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fischer-v-brancato-moctapp-2005.