Price v. Hawkins

439 S.E.2d 382, 247 Va. 32, 10 Va. Law Rep. 712, 1994 Va. LEXIS 17
CourtSupreme Court of Virginia
DecidedJanuary 7, 1994
DocketRecord 930364
StatusPublished
Cited by18 cases

This text of 439 S.E.2d 382 (Price v. Hawkins) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Price v. Hawkins, 439 S.E.2d 382, 247 Va. 32, 10 Va. Law Rep. 712, 1994 Va. LEXIS 17 (Va. 1994).

Opinions

JUSTICE COMPTON

delivered the opinion of the Court.

In this suit brought under Code § 55-80 to set aside fraudulent conveyances of cash, the only question properly preserved for appellate review is whether the trial court erred by entering in personam judgments against transferees who participated in a fraudulent scheme to delay and hinder a creditor by concealing the debtor’s assets. As pertinent, § 55-80 provides: “Every gift, conveyance, . . . transfer of, or charge upon, any estate, real or personal, . . . given with intent to delay, hinder or defraud creditors ... of or from what they are or may be lawfully entitled to shall, as to such creditors,... be void.”

The present controversy stems from an action at law filed in November 1986 in the Circuit Court of the City of Hampton by appellee Joseph L. Hawkins against Floyd M. Gibbs, Sr., for recovery in damages resulting from defamation and other wrongs. In September 1988, a judgment confirming a jury’s verdict in the [34]*34amount of $200,000 was entered in favor of Hawkins. That judgment became final after unsuccessful appeals by Gibbs.

In November 1990, Hawkins, the creditor, filed the present suit naming Gibbs, the debtor, as a defendant along with the debtor’s two sons, David A. Gibbs and appellant Steven A. Gibbs, and the debtor’s girlfriend, appellant Henrietta Price. The suit was brought under § 55-80 to set aside transfers of cash in the total amount of $135,500 from the debtor to Price and the sons.

As the result of a February 1992 ore tenus hearing, the chancellor made the following findings. Beginning in February 1988 and ending in May 1988, the debtor made withdrawals totalling $112,800 from his retirement account. Between March and May 1988, the debtor caused to be transferred to the account of David A. Gibbs the sum of $90,500. In December 1988, the debtor liquidated corporate stock, receiving the sum of approximately $60,220. The debtor transferred additional amounts to David A. Gibbs so that he received a total of $115,500. The debtor then transferred the amount of $10,000 each to Steven A. Gibbs and to Price.

At trial, David A. Gibbs admitted he knew of the original suit and the judgment, but said he accepted the funds from his father as a gift and had no intent to participate in a fraudulent scheme. Steven A. Gibbs said he learned of the original action only after it was concluded. He stated he spent some of the $10,000 for his own purposes, paid some of his father’s bills, and returned the remainder to his father. Price testified that she knew of the original action, that she was aware some of the debtor’s bank accounts had been attached, and that she accepted the $10,000 in order to place the funds in an account in her own name for the sole purpose of writing checks to pay the debtor’s bills. The evidence was uncontradicted that she did not use any of the funds for her own purposes.

After stating at the conclusion of the hearing, “If there was ever a scheme to defraud a creditor, this is it,” the chancellor set aside the conveyances as void and entered in personam judgments against David A. Gibbs for $115,500, against Steven A. Gibbs for $10,000, and against Price for $10,000. We awarded Price and Steven A. Gibbs this appeal from the December 1992 final decree. David A. Gibbs did not file a petition for appeal.

On appeal, Price and Gibbs contend that the trial court erred in awarding personal judgments against them. They rely on Mills v. Miller Harness Co., 229 Va. 155, 158, 326 S.E.2d 665, 667 (1985), in which we said that “nothing” in § 55-80 authorizes “a court to award an in personam judgment when a fraudulent conveyance is set aside.” [35]*35In Mills, we reversed that part of the final decree granting one creditor an in personam judgment against a transferee and remanded the case with direction that the transferee return the funds to court for ratable distribution to all the creditors.

Price and Gibbs argue, in effect, that the creditor under the circumstances of this case has no remedy under § 55-80 against the fraudulent transferees. They contend the personal judgments are invalid and, distinguishing Mills on its facts, argue that ratable distribution is improper.

Price argues that the sum “given” to her “was done to utilize her as a bank account after Floyd Gibbs’ own had been seized, and Price merely acted as his agent to disburse his funds. This cannot have been fraud because Floyd Gibbs could have made the preferential payments directly himself.” In this branch of her argument, Price is drawing on the Virginia rule that at common law and under § 55-80, “an insolvent debtor may generally make a valid transfer of a portion or the whole of his assets to a bona fide creditor on account of an existing indebtedness, if that is the sole purpose of the debtor and the transfer is for full value.” Bank of Commerce v. Rosemary and Thyme, Inc., 218 Va. 781, 784, 239 S.E.2d 909, 912 (1978).

Gibbs argues that “approximately $5,941.23 was used to pay his own bills. The rest was paid to his father’s credit card debt or returned to his father in cash.”

Thus, they contend that no “judgment should have been rendered against Price because she was utilized merely as a conduit for Floyd Gibbs’ funds to prefer other creditors, which he had a perfect right to do. Price received not one penny of personal benefit.” They contend it “was likewise error to enter judgment against” Gibbs, and, because “key elements” of Mills are not present, ratable distribution “cannot apply.” Gibbs argues that, in any event, he is liable for only the $5,941.23 he used for his own benefit.

We do not agree with either Price or Gibbs. Their argument completely disregards the trial court’s explicit finding, not properly challenged on appeal, that the pair participated in a scheme to defraud the creditor.

Professor Glenn, in his treatise on fraudulent conveyances, discusses the accountability of a transferee or grantee for proceeds of property fraudulently conveyed. Relating the situation “to confusion of goods,” the doctrine he discusses “governs the case where a debtor’s property is indistinguishably mingled with that of a third person.” 1 Garrard Glenn, Fraudulent Conveyances and Preferences § 239, at 415 (rev. ed. 1940). When the property “cannot be identified [36]*36in any form,” such as money placed in a transferee’s checking account, Glenn states, “The grantee should respond personally for the value of the property which he has put it out of his power to apply properly.” Id. According to Glenn, the grantee is placed, as the result of the creditor’s proceeding attacking the fraudulent conveyance, “in the position of one holding for account of the debtor, because, the creditor having taken action under the statute, the grantee’s title is avoided. Not being able to produce the property, he must surrender the substitute to the creditor.” Id.

“The same reasoning makes the grantee personally liable, on his account, for the value of the original property in case he cannot produce it or a substitute. Receiving the property fraudulently, as against a creditor who takes steps, the grantee is liable to the extent of its value.” Id.

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Price v. Hawkins
439 S.E.2d 382 (Supreme Court of Virginia, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
439 S.E.2d 382, 247 Va. 32, 10 Va. Law Rep. 712, 1994 Va. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-hawkins-va-1994.