Rahn's Oil & Propane, Inc. v. Ettel Logistics, Inc., ELI Logistics, Inc. ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1374
Rahn’s Oil & Propane, Inc.,
Respondent,
vs.
Ettel Logistics, Inc., et al.,
Defendants,
ELI Logistics, Inc., et al.,
Appellants.
Filed June 1, 2015
Affirmed
Larkin, Judge
Stearns County District Court
File No. 73-CV-12-9149
John L. Greer, John F. Mathews, James P.A. Morrighan, Hughes Mathews Greer, P.A.,
St. Cloud, Minnesota (for respondent)
David T. Johnson, Amundson & Johnson, P.A., Paynesville, Minnesota (for appellants)
Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
LARKIN, Judge
In this appeal from judgment following a court trial of respondent’s claims to
recover on a debt owed by appellants, appellants assert that the district court erred in its
resolution of respondent’s claims under the Minnesota Uniform Fraudulent Transfer Act
(MUFTA). We affirm.
FACTS
Respondent Rahn’s Oil & Propane Inc. sued appellants ELI Logistics Inc.,
Michael Ettel, Judith Ettel, and Frederick Ettel, claiming that appellants are liable under
MUFTA for a fuel bill incurred by Ettel Logistics Inc.1 The district court held a court
trial and made findings of fact, which are summarized below.
Ettel Logistics was a trucking company that operated from October 2008 until July
2011. Its business included milk-hauling routes. Kristine Kussman, Michael’s wife, was
the sole shareholder, officer, and director of Ettel Logistics. Michael and Kussman
owned the property from which Ettel Logistics operated. They agreed that Michael
would not be a shareholder of the company because he had a substantial tax debt, but
they planned to make Michael a co-owner after he paid off the debt. Although Michael
was not an owner, he managed the trucking operations, was involved in important
decisions for the company, and held himself out to other companies as an owner or
officer of Ettel Logistics.
1
Respondent included additional defendants and claims in the lawsuit, but those
defendants have not appealed and the additional claims are not at issue.
2
Ettel Logistics had an account with Rahn’s Oil for the purchase of fuel. David
Rahn, an owner of Rahn’s Oil, originally believed that Kussman and Michael owned
Ettel Logistics. Kussman and Michael approached Rahn together to open the account,
and Rahn regularly dealt with Michael, and not Kussman.
In November 2010, Michael and Kussman divorced. Shortly thereafter, Ettel
Logistics began issuing checks to Rahn’s Oil that were not honored by the bank.
Between December 2010 and February 2011, Ettel Logistics issued eight such checks,
and its account with Rahn’s Oil accumulated a past-due balance of $74,740.63. Rahn
tried to discuss the debt with Michael, but Michael told him that Kussman was
responsible for financial matters. When Rahn explained why he thought Michael was
responsible for the debt, Michael told Rahn that he was “going to have to take [Michael]
to court.”
As Ettel Logistics’ business began to fail, Michael’s parents, Judith and Frederick,
provided financial assistance in an attempt to save it. They personally guaranteed loans
to Ettel Logistics in the amount of $195,243.49.
In spring 2011, Kussman began negotiating with the Ettels to sell them Ettel
Logistics. The Ettels pressured Kussman to “ensure that Mike and his parents were taken
care of” and not to sell the milk-hauling routes or contracts to anyone else. During
negotiations, Michael estimated the value of the annual income from the milk routes to be
$481,370. Kussman valued the income at $610,000.
In July 2011, Ettel Logistics transferred its assets to ELI Logistics Inc., a company
owned and directed by Judith and managed by Michael. The written asset-purchase
3
agreement states a purchase price of $596,681.79 “plus any amounts due under
equipment lease with Financial Pacific Leasing.”2 The agreement states that the purchase
price is “allocated entirely to equipment,” and it does not assign any value to the milk-
hauling contracts. The agreement also states that “[p]ayment of purchase price is in the
form of assumption of debt by [b]uyer” and provides that ELI would assume all bank
debt owed by Ettel Logistics. But under the language of the agreement, ELI did not
assume Ettel Logistics’ debt to Rahn’s Oil. The agreement provided that Ettel Logistics
was entitled to accounts receivable up to and including the July 22 milk routes, which
amounted to $52,000. Finally, Kussman was required to sign a quit claim deed regarding
her interest in the real property on which the business was located and received less than
$500 for it.
Judith testified that she would not have purchased the business if she had not
personally guaranteed nearly $200,000 in loans to help fund Ettel Logistics. Frederick
testified that, because Ettel Logistics was failing, he and his wife were afraid they would
lose their house, which they had put up as collateral for the loans.
Throughout the negotiations and sale of the business, Ettel Logistics continued to
incur debt with Rahn’s Oil. By the date of the sale, Ettel Logistics owed Rahn’s Oil
$120,654.50. None of the appellants told Rahn about the sale of Ettel Logistics until
seven days after it occurred. After the sale, Kussman told Rahn that she did not know
how she could repay him. Rahn’s Oil obtained a default judgment against Ettel Logistics
2
The district court did not make findings regarding any amounts due under the
equipment lease with Financial Pacific Leasing.
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in the amount of $122,191.95 and docketed the judgment in September 2011. In October
2011, Ettel Logistics published Notice of Intent to Dissolve as a corporation to creditors.
Rahn’s Oil mailed a Notice of Claim to Ettel Logistics, alleging a claim in the amount of
$196,932.58 for the default judgment, statutory interest, and statutory penalties for
dishonored checks.
Rahn’s Oil commenced the underlying action under MUFTA in September 2012.
Robert Covell, a certified valuation analyst and certified public accountant, testified for
Rahn’s Oil. He conducted a business valuation of Ettel Logistics and determined that the
value of the assets transferred from Ettel Logistics to ELI was $788,682. Covell testified
that the price Ettel Logistics received for its assets was not reasonably equivalent to the
value of its assets. Covell did not conduct his own appraisal of the trucks and equipment,
but arrived at a value of $596,682 based on the language of the written agreement, which
allocated the entire purchase price to the trucks and equipment. Covell concluded that
the milk contract rights were worth $192,000.
James Kloster, a machinery and equipment appraiser, testified for appellants. He
conducted a valuation of the equipment transferred under the agreement and concluded
that the transferred assets were worth $375,000. He did not opine regarding the value of
the milk routes or the business as a whole.
The district court concluded that the asset transfer from Ettel Logistics to ELI was
actually and constructively fraudulent under MUFTA. The district court further
concluded that it was “appropriate to pierce the corporate veil” and that “[h]olding
[appellants] personally liable for this fraud is an equitable result.” The district court
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ordered judgment for Rahn’s Oil in the amount of $120,654.50 and ordered that
appellants and Kussman are jointly and severally liable for that amount.3 Appellants
moved for amended findings or a new trial, and the district court denied the motion. This
appeal follows.
DECISION
I.
The purpose of MUFTA is “to prevent debtors from placing property that is
otherwise available for the payment of their debts out of the reach of their creditors.”
Finn v. Alliance Bank, 860 N.W.2d 638, 644 (Minn. 2015) (quotation marks omitted).
To fulfill this purpose, “MUFTA allows creditors to recover assets that debtors have
fraudulently transferred to third parties.” Id. “To cover the variety of situations in which
debtors may attempt to place assets beyond the reach of creditors, MUFTA allows
creditors to recover assets that a debtor transfers with fraudulent intent” under Minnesota
Statutes section 513.44(a)(1) (2014), “as well as those transfers that the law treats as
constructively fraudulent” under sections 513.44(a)(2) (2014) and 513.45 (2014). Id.In this case, the district court concluded that the transfer of assets from Ettel
Logistics to ELI was constructively fraudulent under Minnesota Statutes sections
513.44(a)(2)(ii) and 513.45(a). Section 513.44(a)(2)(ii) provides:
A transfer made or obligation incurred by a debtor is
fraudulent as to a creditor, whether the creditor’s claim arose
before or after the transfer was made or the obligation was
incurred, if the debtor made the transfer or incurred the
obligation . . . without receiving a reasonably equivalent
3
Kussman has not appealed.
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value in exchange for the transfer or obligation, and the
debtor: . . . intended to incur, or believed or reasonably should
have believed that the debtor would incur, debts beyond the
debtor’s ability to pay as they became due.
(Emphasis added.)
Section 513.45(a) provides:
A transfer made or obligation incurred by a debtor is
fraudulent as to a creditor whose claim arose before the
transfer was made or the obligation was incurred if the debtor
made the transfer or incurred the obligation without receiving
a reasonably equivalent value in exchange for the transfer or
obligation and the debtor was insolvent at that time or the
debtor became insolvent as a result of the transfer or
obligation.
(Emphasis added.)
Appellants argue that “the [district] court’s finding that the assets were sold for
less than reasonably equivalent value was clearly erroneous and not supported by the
evidence” and that “[s]ince the assets were not sold for less than reasonably equivalent
value, [Rahn’s Oil] cannot recover under Minn. Stat. § 513.44(a)(2) or Minn. Stat.
§ 513.45(a).”
“Findings of fact, whether based on oral or documentary evidence, shall not be set
aside unless clearly erroneous, and due regard shall be given to the opportunity of the
[district] court to judge the credibility of the witnesses.” Minn. R. Civ. P. 52.01.
“[Appellate courts] examine the record to see if there is reasonable evidence in the record
to support the court’s findings. And when determining whether a finding of fact is
clearly erroneous, [appellate courts] view the evidence in the light most favorable to the
verdict. To conclude that findings of fact are clearly erroneous [an appellate court] must
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be left with the definite and firm conviction that a mistake has been made.” Rasmussen v.
Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013) (quotations and citations
omitted).
The district court’s finding that the asset transfer was for less than a reasonably
equivalent value is based on the following reasoning. The purchase price of $596,681.79
was the exact amount that Ettel Logistics owed Freeport State Bank and Central
Minnesota Credit Union. Judith “paid” for the purchase by assuming the debt that Ettel
Logistics owed Freeport State Bank and Central Minnesota Credit Union. But Judith
acknowledged that she was already responsible for $195,243 of that debt. Therefore, she
actually assumed only $401,438 of new debt in the transfer and effectively paid only that
amount. The district court accepted Covell’s testimony that the milk routes were worth
$192,000 and found that ELI paid nothing for them. The district court reasoned that,
even if it accepted Kloster’s assessment that the transferred equipment was worth only
$375,000, the business was still worth at least $567,000. And because the Ettels received
a business that was worth $567,000 in exchange for assuming $401,438 in new debt, the
exchange was for less than a reasonably equivalent value.
Appellants argue that the equipment transferred from Ettel Logistics to ELI is
worth between $337,225 and $375,000, and urge this court to accept Kloster’s appraisal.
But the district court accepted Kloster’s appraisal of the equipment and used his figure of
$375,000 in finding that the business was worth at least $567,000. Appellants argue that
the district court erred when it accepted Covell’s testimony “that there is an additional
value of $192,000 for the milk routes when these routes were included in the original
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$596,682 purchase price.” But the district court found that ELI paid nothing for the milk
routes, and the written asset-purchase agreement supports this finding. It states, “The
purchase price is hereby allocated entirely to equipment.” Appellants argue that the
“allocation is just an agreement among the parties as to how the parties should treat the
sale for tax purposes.” Although there may be support for appellants’ theory in the
language of the agreement, the district court’s finding is reasonable, and on appeal, this
court reviews “the evidence in the light most favorable to the verdict.” Rasmussen, 832
N.W.2d at 797.
Appellants also argue that the district court erred in finding that Judith assumed
only $401,438 in new debt. Specifically, appellants assert that the district court erred by
not including “the pre-existing personal guaranty of $195,243” in the purchase price,
because “[i]t was only a guarantee.” Appellants contend that the $195,243 was not a
preexisting debt, and they generally argue that “[i]t is unsure whether Frederick and
Judith Ettel would have ever been responsible for this amount. The bank could have
pursued this amount from Frederick and Judy Ettel, but they might not have. [The bank]
had other remedies to pursue before pursuing the personal guarantees.” But appellants do
not cite legal authority to show that the district court erred by treating Judith’s personal
guaranty as a preexisting debt.
Rahn’s Oil counters that a “guaranty” is “[a] promise to answer for the payment of
some debt, . . . in case of the failure of another who is liable in the first instance,” citing
Black’s Law Dictionary 712 (7th ed. 1999). Rahn’s Oil cites N. Pac. Ry. Co. v. Wis. Cent.
Ry. Co., which states that “[i]t is unquestionably the law that the performance of or an
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agreement to perform an existing legal obligation is not alone a sufficient consideration
for a contract.” 117 Minn. 217, 226, 135 N.W. 984, 986 (1912). Rahn’s Oil concludes
that “Judith Ettel’s liability to Freeport State Bank was a preexisting obligation which
cannot constitute consideration for the assets.”
Because appellants do not offer legal support for their assertion of error based on
the district court’s treatment of Judith’s preexisting personal guaranty as preexisting debt,
and we do not discern obvious error, this issue is waived. See State v. Modern Recycling,
Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (“An assignment of error based on mere
assertion and not supported by argument or authorities in appellant’s brief is waived and
will not be considered on appeal unless prejudicial error is obvious on mere inspection.”
(quotation omitted)).
In sum, the district court’s finding that Ettel Logistics’ assets were transferred to
ELI for less than reasonably equivalent value is supported by reasonable evidence in the
record and is not clearly erroneous.
II.
Appellants argue that the district court erred in concluding that the asset transfer
was made with actual fraudulent intent under Minnesota Statutes section 513.44(a)(1).
Section 513.44(a)(1) provides:
A transfer made or obligation incurred by a debtor is
fraudulent as to a creditor, whether the creditor’s claim arose
before or after the transfer was made or the obligation was
incurred, if the debtor made the transfer or incurred the
obligation: . . . with actual intent to hinder, delay, or defraud
any creditor of the debtor.
10
“Because the intent to defraud creditors is rarely susceptible of direct proof, courts
continue to rely on badges of fraud to determine whether a transfer is fraudulent.”
Citizens State Bank Norwood Young Am. v. Brown, 849 N.W.2d 55, 60 (Minn. 2014)
(quotation marks omitted). Consideration may be given to, among other factors, whether:
(1) the transfer or obligation was to an insider;
(2) the debtor retained possession or control of the
property transferred after the transfer;
(3) the transfer or obligation was disclosed or
concealed;
(4) before the transfer was made or obligation was
incurred, the debtor had been sued or threatened with suit;
(5) the transfer was of substantially all the debtor’s
assets;
(6) the debtor absconded;
(7) the debtor removed or concealed assets;
(8) the value of the consideration received by the
debtor was reasonably equivalent to the value of the asset
transferred or the amount of the obligation incurred;
(9) the debtor was insolvent or became insolvent
shortly after the transfer was made or the obligation was
incurred;
(10) the transfer occurred shortly before or shortly
after a substantial debt was incurred; and
(11) the debtor transferred the essential assets of the
business to a lienor who transferred the assets to an insider of
the debtor.
Minn. Stat. § 513.44(b) (2014).
The district court found that six badges of fraud are present in this case. It found
that the transfer was to an insider because the Ettels, particularly Michael, exercised
control over Ettel Logistics along with Kussman, and remained in control of ELI, the new
corporation. The district court found that the transfer was concealed because Rahn’s Oil
was not informed of the sale until seven days after it occurred. Although Rahn did not
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threaten Ettel Logistics with a lawsuit before the transfer, the district court found that
Michael was aware of the possibility of a lawsuit because he told Rahn that Rahn was
“going to have to take [him] to court.” The district court also found that the transfer was
of substantially all of Ettel Logistics’ assets, the value of the consideration received by
Ettel Logistics was not reasonably equivalent to the value of the assets transferred, and
Ettel Logistics was insolvent at the time of the transfer. Additionally, the district court
found that Michael was insincere regarding his role in the business and his knowledge
regarding Ettel Logistics’ debt to Rahn’s Oil, which the district court treated as “another
indication of actual intent to defraud [Rahn].”
Appellants contest those findings. They argue that the Ettels were not all insiders,
there are “a number of other factors that the court did not properly consider,” the court
failed to consider the timing of events, the transfer was not concealed just because Rahn
did not find out about it, there was no threat of a lawsuit, Ettel Logistics retained assets in
the form of accounts receivable, the court did not properly blame Kussman for
mismanagement, and the district court did not properly analyze reasonably equivalent
value.
Our standard of review is as follows:
In an appeal from a bench trial, we do not reconcile
conflicting evidence. We give the district court’s factual
findings great deference and do not set them aside unless
clearly erroneous. However, we are not bound by and need
not give deference to the district court’s decision on a purely
legal issue. When reviewing mixed questions of law and fact,
we correct erroneous applications of law, but accord the
[district] court discretion in its ultimate conclusions and
12
review such conclusions under an abuse of discretion
standard.
Porch v. Gen. Motors Acceptance Corp., 642 N.W.2d 473, 477 (Minn. App. 2002)
(alteration in original) (quotations and citations omitted), review denied (Minn. June 26,
2002). Applying that standard to our review of the record evidence, we do not discern
clear error in the district court’s findings regarding the badges of fraud. See Wilson v.
Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating that appellate courts
need not “discuss and review in detail the evidence for the purpose of demonstrating that
it supports the trial court’s findings”).
Appellants also assert, “[f]or actual fraud to be found, facts supporting a
conspiracy against [Rahn] must be present” and “[t]here simply were no such facts.” But
appellants do not provide legal authority to support their argument that there must be
proof of a conspiracy to defraud. The issue is therefore waived. See Modern Recycling,
558 N.W.2d at 772.
III.
Appellants argue that the district court erred in determining that an antecedent debt
need not be owed to an insider to satisfy the requirements of Minnesota Statutes section
513.45(b) (2014), which provides:
A transfer made by a debtor is fraudulent as to a
creditor whose claim arose before the transfer was made if the
transfer was made to an insider for an antecedent debt, the
debtor was insolvent at that time, and the insider had
reasonable cause to believe that the debtor was insolvent.
13
In district court, appellants argued that Rahn’s Oil could not establish liability
under section 513.45(b) because it requires that the transfer be made to an insider for an
antecedent debt owed to the insider and the transfer here was made for a debt owed to
third parties, Freeport State Bank and Central Minnesota Credit Union. The district court
rejected that argument based on the plain language of the statute, reasoning that the
statute merely requires that assets were transferred to the insider “for an antecedent debt.”
“Interpretation of a statute presents a question of law, which we review de novo.”
Swenson v. Nickaboine, 793 N.W.2d 738, 741 (Minn. 2011). When interpreting a statute,
our objective is to “ascertain and effectuate the intention of the legislature.” Minn. Stat.
§ 645.16 (2014). “[An appellate court] first look[s] to see whether the statute’s language,
on its face, is clear or ambiguous. A statute is ambiguous only when the language therein
is subject to more than one reasonable interpretation.” Am. Family Ins. Grp. v. Schroedl,
616 N.W.2d 273, 277 (Minn. 2000) (quotation and citation omitted). “If the legislature’s
intent is clearly discernible from a statute’s unambiguous language, appellate courts
interpret the language according to its plain meaning, without resorting to other principles
of statutory construction.” City of St. Paul v. Elderidge, 788 N.W.2d 522, 525 (Minn.
App. 2010), aff’d, 800 N.W.2d 643 (Minn. 2011).
Appellants do not contend that section 513.45(b) is ambiguous. Instead, they
argue that the “plain language of this statute requires that the transfer was made to an
insider for an antecedent debt owed to the insider.” But the statute does not contain the
phrase “owed to the insider.” It only states that “the transfer was made to an insider for
an antecedent debt.” Minn. Stat. § 513.45(b). We may not add the words “owed to the
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insider” to the statute. See Wallace v. Comm’r of Taxation, 289 Minn. 220, 230, 184
N.W.2d 588, 594 (1971) (“[C]ourts cannot supply that which the legislature purposely
omits or inadvertently overlooks.”). Because the plain language of section 513.45(b)
does not require that the antecedent debt be owed to the insider, the district court did not
err in applying the statute.
IV.
Appellants contend that the district court erred in failing to “impose the defenses
set forth in Minn. Stat. § 513.48(e)(2) [(2014)].” Section 513.48(e)(2) states: “A transfer
is not voidable under section 513.44(a)(2) or 513.45 if the transfer results from . . .
enforcement of a security interest in compliance with article 9 of the Uniform
Commercial Code.”
Appellants only argument on this issue is as follows: “Here, the antecedent
referred to was a debt to Freeport State Bank, which had a security interest. Even if the
antecedent debt is not required to be payable to an insider, this statute provides a defense
to the court[’s] conclusions.” Appellants do not identify any evidence in the record
showing that the transfer of assets from Ettel Logistics to ELI resulted from enforcement
of a security interest in compliance with article 9 of the Uniform Commercial Code. This
issue is waived for lack of adequate briefing and because it was raised for the first time in
appellants’ motion for amended findings and a new trial. See Modern Recycling, 558
N.W.2d at 772; Ellingson v. Burlington N. R.R. Co., 412 N.W.2d 401, 405 (Minn. App.
1987) (stating that a party may not raise an issue for the first time in a motion for a new
trial), review denied (Minn. Nov. 13, 1987).
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V.
Appellants argue that the district court “erred in determining that [they] were
‘insiders’ pursuant to Minn. Stat. § 513.41-513.45.” Appellants’ entire argument on this
issue is as follows:
This issue has been analyzed . . . above. Insider status
must be considered at the time of the transaction. Not
whether the Ettels may have been somehow insiders in the
past. Also, it must be noted that there were no findings at all
pertaining to Frederick Ettel. And he, too, was found to be an
insider.
Contrary to appellants’ argument, the district court’s findings address Frederick
Ettel’s role in the underlying events. The district court’s findings of fact note that
Michael testified that the milk hauling and trucking business “has always been in the
family” and that his father (Frederick) and grandfather had run milk-hauling routes. The
findings also note that “Frederick testified that he and his wife were afraid they would
lose their house, which they had put up as collateral, because Ettel Logistics was failing.”
The district court found that “[a]s Ettel Logistics began to fail, Judith and Frederick
provided financial assistance in an attempt to save it” and that “Judith and Frederick had
personally guaranteed loans originated to Ettel Logistics through Freeport State Bank in
the amount of $195,243.49.” The district court found that “Kussman met with Michael,
Judith and Frederick to discuss potential solutions to Ettel Logistics’ financial problems”
and that Kussman e-mailed Freeport State Bank “with a list of ideas that had purportedly
come out of that meeting.” The list included “getting Fred and Judy’s liability reduced as
16
much as possible.” The e-mail also noted that “Fred and Judy agree that we need to drop
the freight expenses as soon as possible.”
In addition, the district court’s conclusions of law include approximately two full
pages of text explaining its determination that appellants are insiders. A portion of that
explanation follows:
While the names of the businesses have changed, as have the
owners and shareholders, the Ettel family has been behind
each incarnation of the milk hauling business before the Court
in this trial. Michael testified that “the business has always
been in the family.” His father and grandfather ran milk
hauling routes. Michael ran his own trucking business until
2005 when he and Mark [his uncle] formed Ettel Transport,
Inc. Michael’s assets, including milk routes, from Ettel
Transport were then used to build and run Ettel Logistics.
Now Judith Ettel owns ELI, which Michael runs. It is the
Ettels, and not Ms. Kussman, who have a long history in the
milk hauling business, and when each incarnation of the
business fails, the Ettels reinstitute that business under the
leadership of someone new. In the case of Ettel Logistics,
that person was Ms. Kussman.
The record adequately supports the district court’s findings regarding insider
status, and the findings support the district court’s attendant conclusions of law.
Moreover, we do not discern error in the district court’s legal analysis regarding this
issue. This court does not presume error on appeal. See White v. Minn. Dep’t of Natural
Res., 567 N.W.2d 724, 734 (Minn. App. 1997) (stating that error is never presumed on
appeal), review denied (Minn. Oct. 31, 1997). The burden is on appellants to show that
the district court erred and that prejudice resulted. See Midway Ctr. Assocs. v. Midway
Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating that to prevail on
appeal, an appellant must show both error and prejudice resulting from the error).
17
Appellants have not shown that the district court erred in its determination that appellants
are insiders.
In conclusion, appellants have not met their burden to establish reversible error on
appeal. We therefore affirm.
Affirmed.
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