Swallows v. Holden

812 S.W.2d 552, 1991 Mo. App. LEXIS 1076, 1991 WL 119668
CourtMissouri Court of Appeals
DecidedJuly 9, 1991
DocketNo. 17056
StatusPublished
Cited by3 cases

This text of 812 S.W.2d 552 (Swallows v. Holden) 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
Swallows v. Holden, 812 S.W.2d 552, 1991 Mo. App. LEXIS 1076, 1991 WL 119668 (Mo. Ct. App. 1991).

Opinion

MAUS, Presiding Judge.

Plaintiff Elmer Swallows secured a Workers’ Compensation award against Dexter Pallet Company, Inc. (Dexter) for $15,287.62. He reduced this award to judgment in the circuit court. Dexter had transferred its assets to Verlin D. Holden (appellant). In this action against Dexter, Verlin D. Holden, Tim Holden, Julie Holden and Celeste Holden, the plaintiff attacks that conveyance as fraudulent. The trial court awarded plaintiff a judgment for the compensation claim, plus interest, in the total amount of $24,326.84 against Dexter and Verlin D. Holden. He appeals.

The case was submitted to the trial court upon an Agreed Statement of Facts, certain requests for admissions and a portion of the deposition of appellant. The following is a condensation of the facts sufficient for the resolution of the issue on appeal. Dexter was organized in 1981. During its corporate existence, its directors, officers and shareholders were Verlin D. Holden, his wife Celeste Holden, his son Tim Holden, and Julie Holden. All of the Holdens were employed by Dexter. The assets of Dexter consisted of equipment used in making pallets. A bank valued that equipment at $40,000.00. Dexter’s business was conducted in a dairy barn on the farm of appellant. The barn had been converted for use in the pallet business.

Plaintiff was injured while working for Dexter, which was under the Workers’ Compensation Law, but was neither insured nor self-insured. On November 29, 1983, plaintiff was granted a lump sum award against Dexter in the amount of $15,287.62, with interest at the rate of 8% per annum.

In October 1983, Dexter owed $160,-000.00 to the Puxico State Bank. The indebtedness was secured by the assets of Dexter and the farm of appellant. In October 1983, appellant borrowed $187,000.00 from the First State Bank of Dexter. “From that sum One Hundred Sixty Thousand Dollars plus interest was used to retire the indebtedness of Dexter Pallet Company, Inc.” At that time, the assets of Dexter were transferred to appellant, individually. Appellant knew that plaintiff was prosecuting his claim under the Workers’ Compensation Law against Dexter. In addition, it was stipulated “[a]ll Defendants participated in and knew about the convey-[554]*554anee of the assets of Dexter Pallet Company, Inc., to Verlin Holden.”

After the assets of Dexter were transferred to appellant, they remained in his converted bam. After a short interval, Verlin D. Holden, individually, resumed the pallet business using that equipment in the converted bam. He did business as “Holden Pallet and Woodworking Company”. He continued to do business with two of the principal customers of Dexter. It was also stipulated that “[a]ll of the actions, affairs and operations of Defendant, Dexter Pallet Company, Inc., were controlled and managed by Defendants Verlin Holden, Celeste Holden, Tim Holden and Julie Holden, with said corporation employing Defendants, Verlin Holden, Celeste Holden and Tim Holden; and that all of the actions, affairs and operations of Holden Pallet and Woodworking Company were controlled and managed by Defendant, Verlin Holden with said business employing Defendants, Verlin Holden, Celeste Holden and Tim Holden.”

As stated, the trial court rendered judgment for the plaintiff against Dexter and appellant in the amount of $24,326.84. Neither party requested a statement of the grounds for the decision. Rule 73.01(a)(2). The trial court made no such statement. “Nevertheless, this court must affirm the trial court’s judgment if it is correct under any reasonable theory.” Jensen v. Borton, 734 S.W.2d 580, 584 (Mo.App.1987).

Plaintiffs petition was in two counts. By the first count, he alleged the transfer was fraudulent and prayed that it be set aside. By the second count, he alleged the individual defendants had appropriated the assets to their personal use and prayed for an accounting and general relief. The briefs of the parties in the trial court submitted the issue of the appellant’s personal liability. See 37 Am.Jur.2d, Fraudulent Conveyances, § 124. The evidence submitted by stipulation centered on that issue. The pleadings may be considered amended to present that issue. Mahan v. Missouri Pacific R. Co., 760 S.W.2d 510 (Mo.App.1988). The trial court resolved the issue presented in the plaintiff’s favor and rendered judgment on that basis. By their briefs in this Court, the plaintiff and appellant acknowledge that the judgment of the trial court is a complete adjudication of all issues between the parties presented by the amended pleadings. This Court will accept that acknowledgement.

The appellant’s first point on appeal is that the trial court erred “in that the evidence was not sufficient to sustain a finding that the purpose of the transfer of assets from the corporation to Verlin Holden was to hinder, delay, or defraud creditors because the transfer was for valid and sufficient consideration, the corporation was already insolvent before the transfer, and the plaintiff did not have any rights to these assets because they were encumbered beyond their value.” The essence of that point, as developed by argument, is that the evidence is insufficient to support a determination that the conveyance of the assets to appellant was fraudulent.

The appellant acknowledges the following standard for measuring the sufficiency of the evidence to establish a conveyance was fraudulent.

“Because the intent of the transferor is difficult to establish by direct proof, the intent must be determined by the facts and circumstances surrounding the transactions. Community Fed. Savings & Loan Ass’n v. Boyer, 710 S.W.2d 332, 334 (Mo.App.1986). As a result, courts have recognized the following ‘badges of fraud’: (1) a conveyance to a spouse or near relative; (2) inadequacy of consideration; (3) transactions different from the usual method of transacting business; [4] transfers in anticipation of suit or execution; (5) retention of possession by the debtor; (6) the transfer of all or nearly all of the debtor’s property; (7) insolvency caused by the transfer; and (8) failure to produce rebutting evidence when circumstances surrounding the transfer are suspicious. Id. In addition to these enumerated badges of fraud, another recognized badge of fraud is a transfer by a debtor corporation of its property to a second corporation where both are controlled by the same person. [555]*555Standard Leasing Corp. v. Missouri Rock Co., 693 S.W.2d 232, 236 (Mo.App.1985). Although none of the badges of fraud existing alone establishes fraud, a concurrence of several of the badges raises a presumption of fraud. Cohoon v. Cohoon, 627 S.W.2d 304, 307 (Mo.App.1981).” South Side Nat. v. Winfield Fin. Serv., 783 S.W.2d 140, 143-144 (Mo.App.1989).

Nonetheless, he argues, the evidence does not meet that standard. First, he contends Dexter received adequate consideration for the assets as the appellant paid the indebtedness in the amount of $160,000.00. This argument is not persuasive.

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Bluebook (online)
812 S.W.2d 552, 1991 Mo. App. LEXIS 1076, 1991 WL 119668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swallows-v-holden-moctapp-1991.