Morin v. Dubois

ROBERTS, Justice, with whom WATHEN, Chief Justice, joins,

dissenting.

[¶ 9] I must respectfully dissent because the Court disregards the proper function of an appellate court and ignores much of the factual findings of the trial court. Although the record could support a finding that Paul transferred his interest in the property with the actual intent to hinder, delay, or defraud his creditors, there is competent evidence to support the court’s contrary finding that he did not act with that intent.

I.

[¶ 1Ó] Initially, I will elaborate on the various transfers at issue. In September 1989 Paul conveyed to Dana four parcels of real estate. One of the parcels — the Fort Kent property — had been previously owned by Paul’s mother. The other three parcels were co-owned by Paul’s wife, Beulah. The consideration on the warranty deeds for those transfers was nominal. The plaintiffs, however, submitted transfer tax forms that listed the consideration paid on one of the parcels — the camp — at $10,000 and on another parcel — the office building — at $70,000. The plaintiffs failed to provide any evidence regarding the value of the Fort Kent property or the fourth parcel of land — the residential property. There is evidence that both the office building and the residential property were encumbered by a mortgage and that both properties have been subsequently subject to a foreclosure sale. There is no evidence as to the amount due on those mortgages at the time the parcels were transferred to Dana.

[¶ 11] In December 1990 Paul transferred two businesses to his son. The bill of sale stated the value of the businesses as $150,-000. At trial Dana, however, testified that *960the assets of both businesses were approximately $6,000 to $7,500 at the time of the transfer.

[¶ 12] To support their assertions that the transfers depleted Paul of his assets, the plaintiffs submitted a copy of his bankruptcy petition completed in May 1991, nearly two years after Paul transferred the parcels of real estate to Dana. Paul’s deposition, in which he stated that he did not have any assets after he transferred the real estate to Dana and that he put the property in Dana’s name “for the simple reason that ... I did not want to have anything in case of high medical bills,” 4 was also submitted at trial.

II.

[¶ 13] We have repeatedly stated that “the function of an appellate court is not to review a cold transcript and draw its own factual inferences.... ” Lewisohn v. State, 433 A.2d 351, 354 (Me.1981). Rather, we review the record to determine whether there is any evidence to support the trial court’s findings. VanVoorhees v. Dodge, 679 A.2d 1077, 1080 (Me.1996). These findings are conclusive on us even if there is evidence in the record that could have supported a contrary determination. Crowley v. Dubuc, 430 A.2d 549, 551 (Me.1981).

[¶ 14] Despite these principles, the Court declares “that [the trial court] clearly misapprehended the meaning of the evidence and that the evidence compels a finding for the plaintiffs.” The Court ignores, for example, the. trial court’s finding that the Fort Kent property was never a viable asset of Paul and that his father transferred the property to Paul to hold for his mother. The Court also ignores the trial court’s findings that Beulah co-owned the other three parcels of property.

[¶ 15] The Court further disregards the superior position of the trial court to assess the credibility of the various witnesses and nontestimonial evidence. See, e.g., Crowley v. Dubuc, 430 A.2d at 552. Contrary to the Court’s assertions, the trial court was not compelled to believe that the $150,000 listed on the bill of .sale reflected , the true value of the businesses. Nor was the court compelled to believe that the amounts listed as consideration on the tax forms were the actual values of the real estate.

[¶ 16] The failure on the part of the plaintiffs to bring forth credible evidence of the value of the property made it impossible' for the court to discern whether the transfers were even voidable pursuant to the Uniform Fraudulent Transfer Act, 14 M.R.S.A §§ 3571-3582 (Supp.1997). Section 3572(12) defines “transfer” as “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, or disposing of or parting with an asset or an interest in an asset...” (Emphasis added). Excluded from the definition of the term “asset” is “[property to the extent that it is encumbered by a valid lien.” 14 M.R.S.A. § 3572(2)(A). Both the office building and the residential property were encumbered by a lien at the time of the transfer. The plaintiffs failed to provide the court with any evidence as to the value of the residential property or the amount of the mortgages encumbering both pieces of property. The court was therefore unable to determine whether those parcels of real estate were even “assets” within the meaning of the Uniform Fraudulent Transfer Act. Without this determination, Paul’s conveyances to Dana of the property was not a “transfer,” let alone a fraudulent transfer, within the meaning of the Act.

[¶ 17] The failure on the part of the plaintiffs to provide the court with sufficient evidence as to the value of the property transferred also resulted in an inability on the part of the court to assess damages. 14 M.R.S.A § 3579(2) provides that a creditor “may recover judgment for the value of the asset transferred ... or the amount necessary to satisfy the creditor’s claim, whichever is less.” (Emphasis added). Only the camp is still in the possession of Dana. The residential property and the office building have been subject to a foreclosure sale, and the Fort Kent property has been returned to Paul’s mother who is not a party to this *961litigation. Because these transfers cannot be avoided, evidence regarding the value of these parcels of real estate is essential. The plaintiffs, however, did not bring forth any evidence as to the value of the Fort Kent property or the residential property. Moreover, the evidence as to the value of the businesses, the camp, and the office budding was subject to a credibility assessment by the court. Without credible evidence regarding the value of the property transferred, it was impossible for the court to draft a remedy.

[¶ 18] Finally, the Court states that the trial court failed to address the plaintiffs’ claim that Paul violated section 3575(1)(B)(2). The Court’s failure to address this issue is understandable in light of the plaintiffs’ failure to argue for the application of section 3575(1)(B)(2). The trial instead focused on whether Paul transferred the property with the intent to hinder, delay, or defraud his creditors and whether Dana actively participated in the scheme. The only mention of this section was in the post-trial brief of the plaintiffs’ counsel. Moreover, rather than explain how the section applied to the facts of this case, he made a one-sentence, perfunctory reference to the section. Hence, whether the plaintiffs have adequately preserved the applicability of section 3575(1)(B)(2) is debatable.

[¶ 19] For these reasons, I cannot conclude that the evidence was such that the court was compelled to believe that the transfers were fraudulent and therefore I would affirm the judgment of the trial court.

. Both of these statements appear to be in direct contradiction to other evidence adduced at trial. In September 1989 Paul still owned his two businesses. Moreover, at the deposition he acknowledged that he had health insurance that would pay his medical bills. ‘