United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1916
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In re: Todd Dewaine Freier, *
*
Debtor. *
__________________ * Appeal from the United States
* Bankruptcy Appellate Panel
R&R Ready Mix, * for the Eighth Circuit.
*
Appellant, *
*
v. *
*
Todd Dewaine Freier, *
*
Appellee. *
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Submitted: February 10, 2010
Filed: May 10, 2010
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Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
R&R Ready Mix, Inc. ("R&R") brought this adversary action against debtor
Todd Dewaine Freier to obtain a determination that Freier is personally liable for a
state-court money judgment rendered in favor of R&R and against T.F. Concrete, Inc.
("T.F."), a corporation wholly owned by Freier. The bankruptcy court1 pierced T.F.'s
corporate veil and held that Freier's debt to R&R was a non-dischargeable debt under
11 U.S.C. §§ 523(a)(2)(A), 523(a)(2)(B), and 523(a)(4). The Bankruptcy Appellate
Panel ("BAP") reversed, holding that the bankruptcy court's findings with regard to
the non-dischargeability of Freier's debt were clearly erroneous. Exercising
jurisdiction pursuant to 28 U.S.C. § 158(d), we reverse the judgment of the BAP.
I.
Freier was the sole shareholder, officer, and director of T.F., a Minnesota
corporation. T.F. was a contracting company that performed concrete work, masonry,
and construction of residential building foundations. Freier was the only T.F.
employee, and he operated the business on a part-time basis. He prepared all bids for
work performed by T.F., and his bids regularly included the cost of materials and a
100 percent mark-up for his labor and profit. T.F. collected nearly all of its payments
due and had no accounts receivable.
R&R supplied T.F. with concrete and related services on a credit basis in
exchange for T.F.'s promise to pay for all materials and services provided by R&R.
Despite receiving payment from its customers, T.F. failed to pay R&R for a
substantial amount of materials and services. By November 2004, T.F. owed R&R
approximately $160,000. R&R notified Freier that it would stop extending credit to
T.F. and would pursue collection on T.F.'s account. Freier responded that T.F. would
declare bankruptcy if R&R would not allow T.F. to purchase on credit. In late
December 2004, Freier promised R&R's president, David Luedeke, that T.F. would
pay the outstanding debt. R&R agreed to a reduced payment schedule for the winter
months. Nonetheless, T.F. immediately failed to make a payment.
1
The Honorable Dennis D. O'Brien, United States Bankruptcy Judge for the
District of Minnesota.
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In February 2005, R&R commenced legal action against T.F. in state court
seeking judgment for the unpaid materials and services. Freier contacted Luedeke to
resolve the legal action and outstanding debt and to ask R&R to continue supplying
materials to T.F. on credit. As part of the ensuing settlement negotiations, Freier said
that he had the financial ability to pay $500 per month for February and March and
$5000 or $6000 for the months thereafter. Freier also provided R&R with a
"Corporate Financial Statement" for T.F. It is undisputed that the Corporate Financial
Statement was inaccurate, as it did not include the debt owed to R&R and at least
$20,000 in debts T.F. owed to other creditors.
Also during the discussions in December 2004 and February/March 2005,
according to R&R, Freier stated that he was not taking any funds from T.F.'s accounts
for himself personally. Freier assured Luebeke that he was putting the company first
and paying off T.F.'s debts before paying himself. Freier does not recall making such
representations.
R&R and T.F. executed a settlement agreement on March 31, 2005. They
acknowledged that T.F. owed $159,961.07 with interest and finance charges accruing
from and after January 31, 2005. The settlement agreement obligated T.F. to pay
$1,000 upon execution and established a monthly payment schedule from April 2005
through December 2006. If T.F. failed to make the required payments, R&R was
entitled to default judgment. In exchange, R&R abandoned its collection efforts and
agreed to continue supplying materials to T.F. on an ongoing credit basis provided
T.F. was not in default under the terms of the settlement agreement.
In 2005, T.F. paid R&R $25,500, which included $9,078.10 toward debt
reduction and $16,421.90 toward new purchases. However, in August 2005, T.F.
failed to make a monthly payment of $7,000 as per the settlement agreement. R&R
sent T.F. a notice of default, which identified T.F.'s failure to make the monthly
payment and also identified T.F.'s failure to pay $30,135.27 for materials supplied
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during summer 2005. Thus, less than five months after signing the settlement
agreement, T.F. defaulted and increased its overall debt owed to R&R.
Contrary to his alleged representation to Luedeke, Freier admitted at trial that
he used corporate assets for his personal benefit throughout 2005. In January 2005,
one week after representing he was taking no money from the corporation, Freier
purchased a Yamaha snowmobile by charging $3,774.94 to T.F.'s credit card accounts.
Freier also used corporate money to pay for a portion of the cost of constructing a
large detached garage/building at his residential property. Between March 31, 2005
and September 16, 2005, Freier paid himself $27,250 cash from T.F.'s accounts. He
also used corporate assets to pay personal expenditures such as his personal credit
card, personal phone, cell phone plans for his family, personal travel expenses,
personal dining, insurance premiums for personal assets, and other in-kind income that
totaled several thousand dollars. On September 20, 2005, Freier caused T.F. to
purchase a new 2006 Chevrolet Pickup for $40,000, even though T.F. already owned
a 2004 Chevrolet Pickup and Freier was the sole employee of T.F. Freier used the
2006 pickup for personal use even though T.F. paid for all of the financing payments,
insurance, gas, and maintenance for the vehicle. In total, Freier withdrew at least
$70,000 from T.F. for his personal use in 2005.
Default judgment was entered against T.F. on September 8, 2005, in the amount
of $150,882.97. R&R was unsuccessful in collecting the judgment through
garnishment and renegotiation of the debt, despite the fact that Freier deposited
$228,605 into T.F.'s checking accounts in 2006. In July 2006, Freier shut down
operation of T.F. because no one was willing to supply T.F. materials on credit and
because T.F. could not pay for materials in advance. He formed a new corporation
under the name Concrete Productions, Inc. Freier was also the sole owner, officer,
and employee of the new corporation, which performed the exact same work and
services as T.F. Freier did not contribute any consideration or capital to Concrete
Productions, but he conducted business using all of the tools, machinery, equipment,
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and assets belonging to T.F. without payment or consideration to T.F. Freier opened
separate bank accounts in the name of Concrete Productions, and he deposited all
income from the concrete construction business after approximately September 15,
2006, into the Concrete Productions accounts.
R&R ultimately sued T.F., Freier, and Concrete Productions in state court
requesting that the court pierce the corporate veils of T.F. and Concrete Productions.
R&R alleged both companies were Freier's alter egos and T.F. was a facade through
which Freier obtained personal benefits. Freier then filed for bankruptcy relief under
Chapter 7.
R&R filed a complaint in the bankruptcy court requesting a judgment of non-
dischargeability as to Freier's debt to R&R in the amount of $150,882.97. On August
25, 2008, after a trial on the merits, the bankruptcy court held that piercing T.F.'s
corporate veil was appropriate because Freier operated T.F. in a fraudulent manner,
and therefore T.F.'s debt to R&R was also the personal debt of Freier. Further, the
bankruptcy court held the debt owed to R&R non-dischargeable under 11 U.S.C. §§
523(a)(2)(A) (false representation or actual fraud), 523(a)(2)(B) (materially false
financial statement), and 523(a)(4) (fraud while acting in a fiduciary capacity).
Accordingly, the court ordered that the debt was not discharged in Freier's bankruptcy,
but remains his personal liability, subject to collection pursuant to state law.
On March 20, 2009, the BAP reversed. It held that the bankruptcy court's
factual findings under the subsections of § 523(a)(2) were clearly erroneous and that
the bankruptcy court erred as a matter of law in finding a fiduciary relationship
between R&R and Freier/T.F. under § 523(a)(4) . R&R appealed the BAP's decision.
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II.
We apply the same standard of review as the BAP regarding R&R's claim under
11 U.S.C. § 523(a)(2)(A). In re Vote, 276 F.3d 1024, 1026 (8th Cir. 2002). Whether
a requisite element of a claim under § 523(a)(2)(A) has been satisfied is a factual
determination, which we review for clear error. See First Nat'l Bank v. Pontow, 111
F.3d 604, 609 (8th Cir. 1997). A finding is clearly erroneous if, after reviewing the
entire evidence, we are "left with the definite and firm conviction that a mistake has
been committed." Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quotation
omitted).
"Section 523(a)(2)(A) of the Bankruptcy Code prevents persons from
committing actual fraud and then wiping away their resulting debt." In re Miller, 276
F.3d 424, 429 (8th Cir. 2002). To obtain a determination that debt is non-
dischargeable under 11 U.S.C. § 523(a)(2)(A), a creditor must prove the following
elements by a preponderance of the evidence:
1. The debtor made a representation.
2. The debtor knew the representation was false at the time it was
made.
3. The representation was deliberately made for the purpose of
deceiving the creditor.
4. The creditor justifiably relied on the representation.
5. The creditor sustained the alleged loss as the proximate result of
the representation having been made.
Burt v. Maurer (In re Mauer), 256 B.R. 495, 500 (B.A.P. 8th Cir. 2000); see also In
re Ophaug, 827 F.2d 340, 343 (8th Cir. 1987), as modified by Field v. Mans, 516 U.S.
59, 74–75 (1995) (requiring justifiable reliance).
Having heard testimony from Freier and Luedeke, the bankruptcy court
concluded that Freier's assurance to R&R during negotiations "that he was taking no
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draws from T.F. Concrete was an intentional misrepresentation of a material fact made
to induce [R&R] to forebear collection efforts and to continue to supply [Freier] with
concrete product and services on credit." In re Freier, 392 B.R. 779, 786 (Bankr. D.
Minn. 2008). Freier challenges the bankruptcy court's holding in several ways.
First, Freier argues that his statements did not constitute actionable fraud
because they did not relate to a matter of present or past fact. We disagree. Based on
the trial testimony, the district court found that Freier misrepresented a present
fact—"Freier represented to Luedeke that he wasn't taking any funds from T.F.
Concrete for himself personally, reassuring the plaintiff that he was doing everything
he could to pay the outstanding debt." Id. at 783 (emphasis added). It was not clear
error for the bankruptcy court to interpret the trial testimony as relating to past or
present actions.
Even if the court should have construed the evidence as though Freier
represented his intent not to use corporate assets for his personal benefit in the future,
such a misrepresentation may still be actionable fraud. A material promise to perform
in the future "made with the intent to defraud and without the intent to perform . . .
constitutes actionable fraud." McDonald v. Johnson & Johnson, 722 F.2d 1370, 1379
(8th Cir. 1983) (applying Minnesota law); see also Vandeputte v. Soderholm, 216
N.W.2d 144, 147 (Minn. 1974).2 The evidence at trial showed that Freier used a
2
We note that the elements of fraud under § 523(a)(2)(A) are determined by
reference to "the dominant consensus of common-law jurisdictions, rather than the law
of any particular State." Field, 516 U.S. at 70 n.9; see also In re Dallam, 850 F.2d
446, 449 (8th Cir. 1988) (Section 523(a)(2)(A) “has been construed to incorporate the
elements of common law fraud . . . .”). The parties erroneously assume that
Minnesota law applies. Nonetheless, Minnesota law is consistent with the consensus
of common-law jurisdictions. See, e.g., 37 Am. Jur. 2d Fraud and Deceit § 90 ("The
prevailing rule followed by most of the courts is that fraud may be predicated on
promises made with a present intention not to perform them or, as the rule is
frequently expressed, on promises made without an intention of performance . . . .").
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substantial amount of corporate assets for his personal benefit throughout 2005,
including during the time period that he negotiated the settlement agreement with
R&R. Thus, the evidence supports a conclusion that Freier's representation was false
regardless of whether he spoke in the present or future tense.
Freier also argues that he intended to make payments to R&R, and thus his
promise to pay the debt was not false when it was made. The BAP agreed with Freier
on this point, emphasizing that Freier reduced his outstanding debt by thousands of
dollars by complying with the settlement agreement through July 2005. According
to the BAP, such payments are inconsistent with a finding that Freier had no intent to
pay the debt. However, R&R's claim under § 523(a)(2)(A) is not dependent on
Freier's representation that he intended to make payments. Instead, R&R's claim is
premised on Freier's false representation that he was paying off T.F.'s debts before he
was taking personal draws. The bankruptcy court found that Freier knew the
statement about drawing funds from T.F. was false, which, for the reasons stated
previously, was not clearly erroneous.
Freier also maintains that R&R did not justifiably rely on his representation
about not drawing funds. Justifiable reliance is an intermediate standard between
actual reliance and reasonable reliance. See Field, 516 U.S. at 70–73. Reliance can
be justifiable even though an investigation would have revealed the falsity of a
representation. Id. at 74–75. However, a creditor "cannot recover if he blindly relies
upon a misrepresentation the falsity of which would be patent to him if he had utilized
his opportunity to make a cursory examination or investigation." Id. at 71 (quoting
Restatement (Second) of Torts § 541 cmt. a (1976)).
The bankruptcy court found that R&R relied on Freier's representation about
not taking draws from T.F. by forgoing collection efforts, signing the settlement
agreement, and continuing to supply T.F. with materials and services on credit. R&R
knew that Freier's method for bidding jobs included at least a 100 percent mark-up
from the cost of materials. From those figures, R&R concluded that T.F. should have
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been able to pay for the materials used and make payments on the debt owed to R&R,
so long as Freier did not use corporate funds for personal use and did not take a profit.
Thus, the evidence supports the bankruptcy court's finding that R&R relied on Freier's
representation about taking draws.
Freier argues that reliance on his representation about putting the corporation
first was "patently absurd" because T.F. was nearly $160,000 in debt to R&R already.
Essentially, Freier argues T.F.'s debt was a warning sign that Freier was misusing
corporate assets, and R&R should not have trusted Freier's representations to the
contrary. This argument, however, is one for the trier of fact. Although the
bankruptcy court was permitted to accept Freier's argument, we decline to hold that
it was required to do so. As such, the bankruptcy court's finding was not clearly
erroneous. See Anderson, 470 U.S. at 574 ("Where there are two permissible views
of the evidence, the factfinder's choice between them cannot be clearly erroneous.").
We affirm the bankruptcy court's determination that Freier's debt was non-
dischargeable under 11 U.S.C. § 523(a)(2)(A). We also affirm the bankruptcy court's
decision to pierce T.F.'s corporate veil and to treat T.F.'s debt as Freier's personal debt.
See Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997) (test for piercing the
corporate veil). Accordingly, we need not reach the bankruptcy court's alternative
bases for holding Freier's debt non-dischargeable.
III.
For the foregoing reasons, we reverse the judgment of the Bankruptcy Appellate
Panel.
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